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FLUOR CORPORATION INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from                                  to                           
Commission file number: 1-16129
FLUOR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware   33-0927079
(State or other jurisdiction of   (I.R.S. Employer
incorporation or organization)   Identification No.)
6700 Las Colinas Boulevard    
Irving, Texas   75039
(Address of principal executive offices)   (Zip Code)
469-398-7000
(Registrant’s telephone number, including area code)
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, $.01 par value per share FLR New York Stock Exchange
Preferred Stock Purchase Rights FLR New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o    No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes o    No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act 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 þ    No o
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 during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes þ    No o
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 þ Accelerated filer o Non-accelerated filer o 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. o
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☑
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐    No þ
As of June 30, 2020, the aggregate market value of the registrant's common stock held by non-affiliates of the registrant was approximately $1.7 billion based on the closing sale price as reported on the New York Stock Exchange.
As of January 31, 2021, 140,759,346 shares of the registrant’s common stock, $0.01 par value per share, were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Document Parts Into Which Incorporated
Portions of the Proxy Statement for the Annual Meeting of Stockholders to be held on May 6, 2021. Part III

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FLUOR CORPORATION
INDEX TO ANNUAL REPORT ON FORM 10-K
For the Fiscal Year Ended December 31, 2020
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Glossary of Terms
The definitions and abbreviations set forth below apply to the indicated terms used throughout this filing.
Abbreviation/Term Definition
2019 10-K Annual Report on Form 10-K for the year ended December 31, 2019
2020 10-K Annual Report on Form 10-K for the year ended December 31, 2020
ABO Accumulated benefit obligation
AOCI Accumulated other comprehensive income (loss)
ASC Accounting Standards Codification
ASU Accounting Standards Update
Cont Ops Continuing operations
Corporate G&A Corporate general and administrative expense
COVID-19 Coronavirus pandemic
DB plan Defined benefit pension plan
DC plan Defined contribution pension plan
Disc Ops Discontinued operations
DOE U.S. Department of Energy
EPC Engineering, procurement and construction
EPS Earnings per share
Exchange Act Securities Exchange Act of 1934
FEMA U.S. Federal Emergency Management Agency
GAAP Accounting principles generally accepted in the United States
GILTI Global Intangible Low-Taxed Income
ICFR Internal control over financial reporting
LNG Liquefied natural gas
NCI Noncontrolling interests
NM Not meaningful
NuScale NuScale Power, LLC
OCI Other comprehensive income (loss)
RSU Restricted stock units
RUPO Remaining unsatisfied performance obligations
SEC Securities and Exchange Commission
SGI Stock growth incentive awards
Stork Stork Holding B.V. and subsidiaries; Acquired by Fluor in 2016
VDI Value driver incentive
VIE Variable interest entity
Forward-Looking Information
From time to time, Fluor® Corporation makes certain comments and disclosures in reports and statements, including this 2020 10-K, or statements are made by its officers or directors, that, while based on reasonable assumptions, may be forward-looking in nature. Under the Private Securities Litigation Reform Act of 1995, a "safe harbor" may be provided to us for certain of these forward-looking statements. We caution readers that forward-looking statements, including disclosures which use words such as "will, "may," "could," "should" "believes," "anticipates," "plans," "expects," "intends," "estimates," "projects," "potential," "continue" and similar statements are subject to various future risks and uncertainties which could cause actual results of operations to differ materially from expectations.
Any forward-looking statements that we may make are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those anticipated by us. Any forward-looking statements are subject to the risks, uncertainties and other factors that could cause actual results of operations, financial condition, cost reductions, acquisitions, dispositions, financing transactions, operations,
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expansion, consolidation and other events to differ materially from those expressed or implied in such forward-looking statements.
We are subject to known risks and to potentially unknown risks. While most risks affect only future cost or revenue anticipated by us, some risks may relate to accruals that have already been reflected in earnings. Our failure to receive payments of expected amounts or the incurrence of liabilities in excess of amounts recorded, could result in charges against future earnings. As a result, the reader is cautioned to recognize and consider the inherently uncertain nature of forward-looking statements and not to place undue reliance on them.
These factors include those referenced or described in this 2020 10-K (including in "Item 1A. — Risk Factors"). We cannot control all risks and uncertainties, and in many cases, we cannot predict the risks and uncertainties that could cause our actual results to differ materially from those indicated by the forward-looking statements. You should consider these risks and uncertainties when you are evaluating us and deciding whether to invest in our securities. Except as otherwise required by law, we undertake no obligation to publicly update or revise our forward-looking statements, whether as a result of new information, future events or otherwise.
Defined Terms
Except as the context otherwise requires, the terms "Fluor" or the "Registrant" as used herein are references to Fluor Corporation and its predecessors and references to the "company," "we," "us," or "our" as used herein shall include Fluor Corporation, its consolidated subsidiaries and joint ventures.
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PART I
Item 1.    Business
Fluor Corporation was incorporated in Delaware in September, 2000. However, through our predecessors, we have been in business for over a century.
Our common stock trades on the New York Stock Exchange under the ticker symbol "FLR".
Fluor Corporation is a holding company that owns a number of subsidiaries, as well as interests in joint ventures. Acting through these entities, we are one of the largest professional services firms providing engineering, procurement, construction, fabrication and modularization, operations, maintenance and asset integrity, as well as project management services, on a global basis. We provide these services to our clients in a diverse set of industries worldwide including oil and gas, chemicals and petrochemicals, mining and metals, infrastructure, life sciences, advanced manufacturing and advanced technologies. We are also a service provider to the U.S. federal government and governments abroad; and, we perform operations, maintenance and asset integrity activities globally for major industrial clients.
At December 31, 2020, we operated our business through six principal segments. The six segments were: Energy & Chemicals; Mining & Industrial; Infrastructure & Power; Government; Diversified Services; and Other. Fluor Constructors International, Inc., which is organized and operates separately from the rest of our business, provides unionized management and construction services in the United States and Canada, both independently and as a subcontractor on projects in each of our segments.
In January 2021, we introduced our new strategy, "Building a Better Future" during a Strategy Day event with investors. At our Strategy Day, we outlined four strategic priorities for driving value creation for our shareholders:
•Drive growth across our portfolio, by growing markets outside of the traditional oil and gas sector, including energy transition, advanced technology and life sciences, high-demand metals, infrastructure and mission solutions;
•Pursue contracts with fair and balanced commercial terms that reward value, with a bias towards reimbursable contracts;
•Reinforce financial discipline, maintaining a solid balance sheet by generating predictable cash flow and earnings; and
•Foster a high-performance culture with purpose, by advancing our diversity, equity and inclusion efforts and promoting social progress and sustainability.
Competitive Strengths
As a world-class provider of our services, we believe that we bring capital efficient business solutions that combine excellence in execution, safety, cost containment and experience to our clients. In that regard, we believe that our business strengths and global positioning provide us with significant competitive advantages:
Safety. One of our core values is our constant focus on safety. Maintaining a safe and secure workplace is a key business driver for us and our clients. In our experience, whether in an office or at a jobsite, a safe environment decreases risks, assures a proper environment for all workers, enhances morale, improves productivity, reduces project cost and generally improves client relations. We believe that our commitment to safety is one of our most distinguishing features.
Global Execution Platform. As one of the larger publicly-traded EPC companies, we have a global footprint with employees situated throughout the world. Our global presence allows us to build local relationships to capitalize on opportunities near these locations. We believe it also allows us to mobilize quickly to project sites around the world and to draw on our local knowledge and talent pools. We continue to form strategic alliances with local partners, leverage our supply chain expertise and emphasize local training programs. We also provide services from our distributed execution centers on a cost-efficient basis.
Excellence in Execution. We believe that our ability to execute, maintain and manage complex projects, often in geographically challenging locations, gives us a distinct competitive advantage. We strive to complete our projects meeting or exceeding all client specifications. We have continued to shift toward data-driven execution, which we expect will enhance our ability to meet our clients' needs.
Market Diversity. We serve multiple markets across a broad spectrum of industries around the globe. We feel that our market diversity helps to mitigate the impact of the cyclicality in the markets we serve. Just as important, our concentrated
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attention on market diversification should allow us to achieve more consistent growth and deliver solid financial returns. We believe that maintaining a good mixture within our entire business portfolio permits us to both focus on our more stable business markets and to capitalize on cyclical markets when the timing is appropriate.
Client Relationships. We actively pursue relationships with new clients while also building on our long-term relationships with existing clients. We believe that long-term relationships with existing clients serve us well by allowing us to better understand and be more responsive to their requirements. Regardless of whether our clients are new or have been with us for many decades, our ability to successfully foster relationships is a key strength.
Risk Management. In combination with our new pursuit criteria and guidelines we believe we have enhanced our ability to assess, mitigate and manage project risk, especially in difficult locations or circumstances. We have an experienced management team, and utilize a systematic and disciplined approach towards identifying, assessing and managing risks. We believe that our risk management approach helps us control costs and meet clients' schedules.
General Operations
Our services fall into six broad categories (outlined below). Our services can range from basic consulting activities, often at the early stages of a project, to complete design-build, operations and maintenance contracts.
•In engineering and design, we develop solutions to address our clients’ most complex problems. Our engineering services range from traditional engineering disciplines such as piping, mechanical, electrical, control systems, civil, structural and architectural to advanced engineering specialties including process engineering, chemical engineering, simulation, integrated automation processes and interactive 3-D modeling. Through our design solutions, we can provide clients with varied offerings which can include front-end engineering, conceptual design, estimating, feasibility studies, permitting, process simulation, technology and licensing evaluation, scope definition and siting.
•Our procurement offerings include procurement and supply chain solutions aimed at improving product quality and performance while also reducing project cost and schedule. Our clients draw upon our global sourcing and supply expertise, global purchasing power, technical knowledge, processes, systems and experienced global resources. Our procurement activities include strategic sourcing, material management, contracts management, buying, expediting, supplier quality inspection and logistics.
•In construction, we mobilize, execute, commission and demobilize projects on a self-perform or subcontracted basis. Generally, we are responsible for the completion of a project, often in difficult locations and under challenging circumstances. We are frequently designated as a program manager, and serve as such without regard to whether the client has facilities in multiple locations, complex phases in a single project location, or a large-scale investment in a facility.
•We also provide a variety of fabrication and modularization services, including integrated engineering and modular fabrication and assembly, as well as modular construction and asset support services to clients around the globe from our joint venture yards. By operating our own fabrication yards in key regions of the world, our off-site fabrication solutions can help our clients achieve cost and schedule savings by reducing on-site craft needs and shifting work to inherently safer and more controlled work environments.
•We offer operations, maintenance and asset integrity services intended to improve the performance and extend the life of our clients’ facilities. This may include the global delivery of total maintenance services, facility management, plant readiness, commissioning, start-up and maintenance technology, small capital projects, and turnaround and outage services. Among other things, we can provide key management, staffing and management skills to clients on-site at their facilities. These activities also include routine and outage/turnaround maintenance services, general maintenance and asset management, emissions reduction technologies and services, and restorative, repair, predictive and prevention services.
•Project management involves managing all aspects of the effort to deliver projects on schedule and within budget, and is critical on every project. We are often hired as the overall program manager on large complex projects where various contractors and subcontractors are involved and multiple activities need to be integrated to ensure the success of the overall project. Our services include logistics, development of project execution plans, detailed schedules, cost forecasts, progress tracking and reporting, and the integration of EPC efforts. Project management is accountable to the client to deliver the safety, functionality and financial performance requirements of the project.
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Business Segments (as of December 31, 2020)
Energy & Chemicals
Our Energy & Chemicals segment focuses on opportunities in the upstream, midstream, downstream, chemical, petrochemical, offshore and onshore oil and gas production, LNG and pipeline markets. We have long served a broad spectrum of industries offering a full range of design, engineering, procurement, construction, fabrication and project management services. While we perform projects that range greatly in size and scope, we believe that one of our distinguishing features is that we are one of the few companies that have the global strength and experience to perform extremely large projects in difficult locations. As the locations of large scale energy and chemicals projects have become more challenging geographically, geopolitically or otherwise, we believe that clients will continue to look to us based upon our size, strength, global reach, experience and track record to manage their complex projects.
With each specific project, our role can vary. We may be involved in providing front-end engineering, program management and final design services, construction management services, self-perform construction, or oversight of other contractors, and we may also assume responsibility for the procurement of materials, equipment and subcontractors. We have the capacity to design, fabricate and construct new facilities, upgrade, modernize and expand existing facilities, and rebuild facilities following fires and explosions. We also provide consulting services ranging from feasibility studies to process assessments to project finance structuring and studies.
In the upstream sector, our clients need to develop additional and new sources of supply. Our typical projects in the upstream sector revolve around the production, processing and transporting of oil and gas resources, including the development of infrastructure associated with major new fields and pipelines. We are also involved in offshore production facilities and in conventional and unconventional gas projects in various geographic locations.
In the downstream sector, our clients have been modernizing and modifying existing refineries to increase capacity, improve margins and improve environmental performance. We continue to play a key role in each of these markets. We are also focused on sustainable markets, such as clean fuels, green energy and carbon sequestration, where an increasing number of clients and countries are implementing stronger environmental standards and goals.
We have been very active for several decades in the chemicals and petrochemicals market, with major projects involving the expansion of ethylene-based derivatives as well as specialty chemicals. The most active markets have been in the United States, Middle East and Asia, where there is significant demand for chemical products.
Mining & Industrial
The Mining & Industrial segment provides design, engineering, procurement, construction and project management services to the mining and metals, life sciences, advanced manufacturing and advanced technologies sectors.
In mining and metals, we provide a full range of services to our clients who produce a variety of commodities, including bauxite, copper, gold, iron ore, diamond, nickel, alumina, aluminum and phosphates. Our services include conceptual and feasibility studies through detailed engineering, design, procurement, construction, commissioning and startup support. Many of these opportunities are being developed in remote and logistically challenging environments, such as the Andes Mountains, Western Australia and Africa. We believe we are one of the few companies with the size, regional presence and experience to execute large scale mining and metals projects in these difficult and remote locations.
For the advanced manufacturing and technologies market, we provide design, engineering, procurement, construction and construction management services to a wide variety of industries on a global basis. We specialize in designing projects that incorporate lean manufacturing concepts while also satisfying client sustainability goals. Our experience spans a wide variety of market segments ranging from traditional manufacturing to advanced technology projects, such as data centers.
In life sciences, we provide design, engineering, procurement, construction and construction management services to the pharmaceutical and biotechnology industries. We also specialize in providing validation and commissioning services where we not only bring new facilities into production, but we also keep existing facilities operating. We believe the ability to complete projects on a large scale basis, especially in a business where time to market is critical, enables us to better serve our clients and is a key competitive advantage.
Infrastructure & Power
The Infrastructure & Power segment provides design, engineering, procurement, construction and project management services to the infrastructure sector.
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We are an industry leader in developing infrastructure projects such as roads, highways, bridges and rail for governments, with particular interest in large, complex projects. We provide a broad range of services including consulting, design, planning, financial structuring, engineering and construction. We also provide long-term operation and maintenance services for transit and highway projects. Our projects may involve the use of public/private partnerships, which allow us to develop and finance deals in concert with public entities for projects such as toll roads and rail lines that would not have otherwise been undertaken with public funding alone. The replacement and expansion of aging infrastructure in North America continues to drive project opportunities.
Historically, we have also offered a full range of services including engineering, procurement, construction, program management, startup and commissioning and technical services to utilities, independent power producers, original equipment manufacturers and other third parties.
Government
The Government segment provides engineering and construction services, logistics and life-support, as well as contingency operations support, to the defense sector. We support military logistical and infrastructure needs around the world, including life-support, engineering, procurement, construction and logistical augmentation services to the U.S. military and coalition forces in various international locations. This segment also provides full life-cycle infrastructure support to the U.S. intelligence community globally.
The Government segment also provides support to the U.S. Department of Energy and National Nuclear Security Administration that includes management, mission operations, environmental remediation, decommissioning, engineering and construction services that address the many environmental and regulatory challenges associated with legacy and operational nuclear sites.
We also provide support to the U.S. Department of Homeland Security. This includes supporting the U.S. government’s rapid response capabilities to address security issues and disaster relief, the latter primarily through our long-standing relationship with the Federal Emergency Management Agency and in support of the Army Corps of Engineers.
Diversified Services
The Diversified Services segment provides a wide array of asset maintenance, asset integrity and staffing services. These services are provided around the world during both the project delivery phase as well as to new or existing client production assets.
Through our subsidiary, Stork, we provide asset maintenance and asset integrity services to the oil and gas, chemicals, life sciences, power, mining and metals, consumer products and manufacturing industries. We focus on asset management solutions, as well as providing asset services in areas such as electrical, instrumentation, mechanical and piping. We also provide asset integrity services, including new asset readiness solutions, inspection of existing assets, and asset turnaround and modification solutions. This business, driven by our clients' annual operating expenditures, often benefits from large projects that originate in another of our segments, which can lead to long-term operations or maintenance opportunities. Our long-term maintenance contracts can also lead to larger capital projects for our other business segments when those needs arise. Our goal is to help clients improve the performance of their assets, including late-life management solutions. In the first quarter of 2021, we announced a plan to sell Stork, which we expect will be reported as a discontinued operation beginning with the first quarter of 2021.
The segment's staffing services are provided through TRS Staffing Solutions®. TRS is a global enterprise of staffing specialists that provides the company and third party clients with technical, professional and craft resources either on a contract or permanent placement basis.
Other
Our Other segment includes the financial information for NuScale, as well as two lump-sum projects for which the U.S. government is either the client or ultimate client.
NuScale, a small modular nuclear reactor (“SMR”) technology company, is a leader in the development of light water, passively safe SMRs, which we believe will provide us with significant future project opportunities. NuScale received final design certification by the U.S. Nuclear Regulatory Commission in August 2020.



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Discontinued Operations
In the third quarter of 2019, we implemented a number of strategic initiatives and organizational changes to strengthen our financial position and improve operational performance. Among those initiatives, we committed to a plan to sell substantially all of our AMECO business, which is reported as a discontinued operation for all periods presented.
AMECO provides integrated construction equipment, tool, scaffolding and fleet service solutions to the company and third party clients in a focused number of locations around the world for construction projects and client production assets.
Business Segments (as of January 1, 2021)
At December 31, 2020, we operated our business through six principal business segments described above. In the first quarter of 2021, we announced an updated organizational and reporting structure. Beginning in the first quarter of 2021, we will operate through three business segments: Energy Solutions, Urban Solutions and Mission Solutions. Energy Solutions will focus on energy transition, chemicals and traditional oil and gas opportunities. Urban Solutions will focus on mining, metals, advanced technologies, manufacturing, life sciences, infrastructure and our professional staffing services. Mission Solutions will focus on delivering solutions to federal agencies across the U.S. government and to select international opportunities.
Other Matters
Backlog
Backlog represents the total amount of revenue we expect to record in the future based upon contracts that have been awarded to us. Backlog is stated in terms of gross revenues and may include significant estimated amounts of third-party, subcontracted and pass-through costs.
Backlog in the engineering and construction industry is a measure of the value of work to be performed on contracts already awarded and those in progress.
December 31, 2020 December 31, 2019
(in millions)
Energy & Chemicals $ 11,021  $ 14,129 
Mining & Industrial 3,980  5,384 
Infrastructure & Power 5,244  6,079 
Government 2,780  3,556 
Diversified Services(1)
2,425  2,542 
Other 119  244 
Total Backlog(2)(3)
$ 25,569  $ 31,934 
_______________________________________________________________________________

(1)With respect to our ongoing operations and maintenance and asset integrity contracts in the Diversified Services segment, backlog includes the amount of revenue we expect to recognize for the remainder of the current year renewal period plus up to three additional years if we consider renewal to be probable. The equipment and temporary staffing businesses in the Diversified Services segment do not report backlog or new awards.
(2)Includes backlog of $1.8 billion and $1.7 billion for projects in a loss position as of December 31, 2020 and 2019, respectively.
(3)For projects related to proportionately consolidated joint ventures, we include only our percentage ownership of each joint venture's backlog.
(in millions) December 31, 2020 December 31, 2019
North America $ 17,438  $ 19,205 
Asia Pacific (including Australia) 1,604  2,627 
Europe 3,199  5,739 
Central and South America 2,469  3,210 
Middle East and Africa 859  1,153 
Total Backlog $ 25,569  $ 31,934 
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Although backlog reflects business that we consider to be firm, cancellations, deferrals or scope adjustments may occur. Backlog is adjusted to reflect any known project cancellations, revisions to project scope and cost, foreign currency exchange fluctuations and project deferrals, as appropriate. The terms and conditions of some contracts include elements of both lump-sum and reimbursable contracts. Also, certain contracts may be converted from reimbursable to lump-sum. Due to additional factors outside of our control, such as changes in project schedules, we cannot accurately predict the exact timing that our December 31, 2020 backlog will be earned as revenue. Accordingly, backlog is not necessarily indicative of future earnings or revenues and no assurances can be provided that we will ultimately realize revenue on our backlog.
The following table sets forth our changes in consolidated backlog:
  2020 2019
  (in millions)
Backlog at beginning of year $ 31,934  $ 40,051 
New awards 9,005  12,563 
Adjustments and cancellations, net(1)
188  (3,583)
Work performed (15,558) (17,097)
Backlog at end of year $ 25,569  $ 31,934 
_______________________________________________________________________________
(1)Adjustments and cancellations during 2019 included the cancellation of two infrastructure projects as well as the suspension of certain contracts associated with our joint venture in Mexico.
In 2021, we expect to perform approximately 50% of our total backlog reported as of December 31, 2020, which is in line with the last three years.
Types of Contracts
While the basic terms and conditions of the contracts that we perform may vary considerably, we typically perform our work under two types of contracts: (a) reimbursable contracts and (b) lump-sum or guaranteed maximum contracts. In some markets, we are seeing hybrid contracts containing both lump-sum and reimbursable elements. As of December 31, 2020, the following table summarizes contract type within our ending backlog:
  December 31, 2020
  (in millions) (percentage)
Reimbursable $ 11,621  45  %
Lump-Sum and Guaranteed Maximum 13,948  55  %

In accordance with industry practice, most of our contracts are subject to termination at the discretion of our client. In such situations, our contracts typically provide for the payment of fees earned through the date of termination and the reimbursement of costs incurred including demobilization costs.
Under reimbursable contracts, the client reimburses us based upon negotiated rates and pays us a pre-determined fee, or a fee based upon a percentage of the cost incurred in completing the project. Our profit may be in the form of a fee, a simple markup applied to labor cost incurred in performing the contract, or a combination of the two. The fee element may also vary. The fee may be an incentive fee based upon achieving certain performance factors, milestones or targets; it may be a fixed amount in the contract; or it may be based upon a percentage of the cost incurred. In some cases, reimbursable contracts may be converted into lump-sum contracts.
Our Government segment, primarily acting as a prime contractor or a major subcontractor for a number of government programs, generally performs its services under reimbursable contracts subject to applicable statutes and regulations. In many cases, these contracts include incentive fee arrangements. The programs may span many years and may be implemented by awards under multiple contracts. Some of our government contracts are known as indefinite delivery indefinite quantity (“IDIQ”) agreements. Under these arrangements, we work closely with the government to define the scope and amount of work required based upon an estimate of the maximum amount that the government desires to spend. While the scope is often not initially fully defined or does not require any specific amount of work, once the project scope is determined, additional work may be awarded to us without the need for further competitive bidding.
Under lump-sum contracts, we typically bid based upon specifications provided by the client. This type of contracting presents risks because it requires us to predetermine the work to be performed, the project execution schedule and all costs
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associated with the work. Another type of lump-sum contract is a negotiated fixed-price contract, under which we are selected as contractor first, and then we negotiate price with the client. Negotiated fixed-price contracts frequently occur in single-responsibility arrangements where we perform some of the work before negotiating the total price for the project. Another type of lump-sum contract is a unit price contract under which we are paid a set amount for every “unit” of work performed. If we perform well under these types of contracts, we can benefit from cost savings. However, if the project does not proceed as originally planned, we may not be able to recover cost overruns except in certain situations.
Guaranteed maximum price contracts are reimbursable contracts except that the total fee plus the total cost cannot exceed an agreed upon guaranteed maximum price. We can be responsible for some or all of the total cost of the project if the cost exceeds the guaranteed maximum price. Where the total cost is less than the negotiated guaranteed maximum price, we may receive the benefit of the cost savings based upon a negotiated agreement with the client.
Some of our contracts, regardless of type, may operate under joint ventures or other teaming arrangements. Typically, we enter into these arrangements with reputable companies with whom we have worked previously. These arrangements are generally made to strengthen our market position or technical skills, or where the size, scale or location of the project directs the use of such arrangements.
Competition
We are one of the world’s larger providers of engineering, procurement, construction, fabrication and modularization, operations, maintenance and asset integrity, and project management services. The markets served by our business are highly competitive and, for the most part, require substantial resources and highly skilled and experienced technical personnel. A large number of companies compete against us, including U.S.-based companies such as AECOM, Bechtel Group, Inc., EMCOR Group, Inc., Jacobs Engineering Group, Inc., KBR, Inc., Kiewit Corporation, Granite Construction, Inc. and Quanta Services, Inc., and international-based companies such as ACS Actividades de Construccion y Servicios, Balfour Beatty plc, Chiyoda Corporation, Hyundai Engineering & Construction Company, Ltd., JGC Corporation, McDermott International, Inc., Petrofac Limited, SNC-Lavalin Group, Inc., Samsung Engineering, Stantec Inc., TechnipFMC plc, Wood Group plc, and WorleyParsons Limited.
Competition for our Energy & Chemicals, Mining & Industrial and Infrastructure & Power segments is based on an ability to provide the design, engineering, planning, management and project execution skills required to complete complex projects in a safe, timely and cost-efficient manner. We believe our engineering, procurement, fabrication and construction business derives its competitive strength from our diversity, excellence in execution, reputation for quality, technology, cost-effectiveness, worldwide procurement capability, project management expertise, geographic coverage, ability to meet client requirements by performing construction on either a union or an open shop basis, ability to execute complex projects of varying sizes, strong safety record and lengthy experience with a wide range of services and technologies.
The various markets served by the Diversified Services segment, while having some similarities to other segments, tend also to have discrete issues impacting individual business lines. Each of the markets we serve has a large number of competing companies. In the operations and maintenance markets, barriers to entry are both financially and logistically low, resulting in a fragmented industry with no single company being dominant. Competition in those markets is generally driven by reputation, price and the capacity to perform. Temporary staffing is a highly fragmented market with over 1,000 companies competing globally. The key competitive factors in this business line are price, service, quality, client relationships, breadth of service and the ability to identify and retain qualified personnel and geographic coverage.
In the Government segment, key competitive factors are primarily centered on performance, reputation and the ability to provide the design, engineering, planning, management and project execution skills required to complete complex projects in a safe, timely, cost-efficient and compliant manner.
The AMECO business, which operates in numerous markets, is highly fragmented and very competitive, with a large number of competitors mostly operating in specific geographic areas. The competition in the equipment business for larger capital project services is more narrow and limited to only those capable of providing comprehensive equipment, tool and management services.
Raw Materials
The principal products we use in our business include structural steel, metal plate, concrete, cable and various electrical and mechanical components. These products and components are subject to raw material (aluminum, copper, nickel, iron ore, etc.) availability and pricing fluctuations, which we monitor on a regular basis. We have access to numerous global supply sources, and we do not foresee any unavailability of these items that would have a material adverse effect on our business in the near term. However, the availability of these products, components and raw materials may vary significantly from year to year due to various factors including client demand, producer capacity, market conditions and specific material shortages.
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Compliance with Government Regulations, Including Environmental, Safety and Health Matters
We provide services at sites throughout the world. Work at some of these sites involves activities related to nuclear facilities, hazardous waste, hydrocarbon production, distribution and transport, the military and infrastructure. Some of our work can be performed adjacent to environmentally sensitive locations such as wetlands, lakes and rivers. We also contract with governments to remediate hazardous materials, including chemical agents and weapons, as well as to decontaminate and decommission nuclear sites. These activities can require us to manage, handle, remove, treat, transport and dispose of toxic, radioactive or hazardous substances, and are subject to many environmental, health and safety laws and regulations.
We believe that we are generally compliant with all environmental, health and safety laws and regulations. We further believe that any accruals with respect to future environmental costs are adequate and that any future costs will not have a material effect on our financial position or results of operations. Some factors, however, could result in additional expenditures or the provision of additional accruals in expectation of such expenditures. These include the imposition of more stringent requirements under environmental laws or regulations, new developments or changes regarding site cleanup costs or the allocation of such costs among potentially responsible parties, or a determination that we are potentially responsible for the release of hazardous substances at sites other than those currently identified.
Human Capital Management
We promote a high performance culture with purpose and foster a diverse and inclusive workplace as a business imperative because we consider people to be our single greatest asset. A high performance culture, where everyone is treated fairly and respectfully and has equal access to opportunities based on capabilities and performance, regardless of background, raises both the individual and collective performance of our company. Our culture drives employee engagement, productivity and a sustainable competitive advantage.
The following summarizes our human capital information as of December 31, 2020:
  Number of
Employees
Salaried Employees 24,203 
Craft and Hourly Employees 16,514 
TRS Agency 3,000 
Total 43,717 
The number of craft and hourly employees can vary in relation to the number, size and phase of execution of our projects. We have employees in the following regions:
Region % of Global Workforce
North America 36  %
Europe, Africa and Middle East 27  %
Central and South America 25  %
Asia Pacific (includes Australia) 12  %
Health and Safety
Safety is one of our core values. We are committed to taking care of our employees and preventing injuries in our offices and project locations. Our robust programs and procedures help us mitigate the hazards inherent in the work we do. We are committed to fostering a caring, preventative culture founded on proactive action by engaged employees. We call this Safer TogetherSM. Our 2020 safety performance resulted in a total case incident rate of 0.38 (calculated in accordance with OSHA record keeping requirements), outperforming our goal of less than 0.40 and well below the comparable industry benchmarks. From 2019 to 2020, we also experienced reductions in the number of work-related life-altering injuries, lost time injuries and injuries requiring medical treatment or work restriction.
In response to COVID-19, we implemented a number of measures to protect the well-being of our employees and mitigate COVID-19 transmission within our offices and on our projects. We established a global COVID-19 task force in January 2020 and implemented actions to empower remote working, restrict non-essential business travel, enhance sanitation at our offices and project sites, and other return-to-work measures. We have an employee assistance program to support employee well-being with a focus on mental health. We also created a Workplace Flexibility global task force to define the workplace of the future.
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Diversity, Equity and Inclusion
We are committed to advancing Diversity, Equity and Inclusion ("DE&I"). We believe that every voice matters, and we value DE&I at every level. We embrace different ideas, perspectives and backgrounds. We listen actively, respect one another and foster an environment with a deep sense of pride and belonging. We are focused on four key impact pillars to advance DE&I:
•Champion an inclusive culture;
•Recruit, develop and retain talent;
•Enhance employee experience; and
•Improve social progress and impact.
We engage and partner with select organizations that represent and support gender, racial and ethnic diversity in the engineering profession, and we work with a variety of university student associations to reach targeted populations. We extend our job postings to the appropriate state workforce agencies as well as a syndicated network of partner sites, in order to reach a diverse pool of candidates.
Development Opportunities
One of our top priorities is to provide ongoing training and development for our employees through multiple venues, including Fluor University, our online learning platform. Employees can select from among a wide variety of self-paced, online training courses and have options to sign up for location-specific, instructor-led and virtual courses. Topics range from discipline-specific and targeted technical learning to general knowledge topics, such as leadership, business acumen, communication and inclusive management. In 2020, our employees earned more than 98,000 credit hours through Fluor University.
We have also developed several programs to help employees advance their careers, including Fluor Fellows for our technical experts and Mentoring Circles. In addition, we currently have three employee resource groups: Growing Representation & Opportunity for Women ("GROW"), Graduates Advancing to Professionalism ("GAP") and Emerging Leaders Group ("ELG").
Community Responsibility
Part of building a high-performance culture with purpose is offering employees robust and enriching opportunities to help build a better future through volunteerism and philanthropy. For more than 40 years, our employee volunteer program, Fluor Cares, has given employees a conduit for giving back to the communities where we live and work. In 2020, employees volunteered more than 24,000 hours to charitable organizations and causes. Additionally, employees pledged $3.6 million, which included a 25 percent company match, through our North America employee giving campaign.
We remained true to our legacy of giving back even as COVID-19 continued to impact lives and communities in far-reaching and profound ways. Our employees continued to exhibit compassion and generosity for those affected by the virus. Local community relations teams directed financial resources to the most significant COVID-19 relief efforts in their local communities with contributions exceeding $0.7 million to local COVID-19 relief funds organized by our community partners in support of meal service charities, critical human needs and schools.
Information about our Executive Officers
The following information is being furnished with respect to our executive officers as of January 31, 2021:
Name Age Position with the Company(1)
Alan L. Boeckmann 72 Executive Chairman
Joseph L. Brennan 53 Executive Vice President and Chief Financial Officer
James R. Breuer 52 Group President, Energy Solutions
Alvin C. Collins III 47 Group President, Corporate Development and Sustainability
David E. Constable 59 Chief Executive Officer
Thomas P. D'Agostino 62 Group President, Mission Solutions
Stacy L. Dillow 47 Executive Vice President and Chief Human Resources Officer
Mark E. Fields 62 Group President, Project Execution
John C. Regan 51 Executive Vice President, Controller and Chief Accounting Officer
John R. Reynolds 64 Executive Vice President, Chief Legal Officer and Secretary
Terry W. Towle 60 Group President, Urban Solutions
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_______________________________________________________________________________
(1)All references are to positions held with Fluor Corporation. All officers serve in their respective capacities at the pleasure of the Board of Directors.
Alan L. Boeckmann
Mr. Boeckmann has been Executive Chairman since 2019. Prior to his retirement in 2012, he previously served as non-executive Chairman of the company from 2011 to 2012 and Chairman and Chief Executive Officer of the company from 2002 to 2011. Mr. Boeckmann first joined the company in 1974.
Joseph L. Brennan
Mr. Brennan has been Executive Vice President and Chief Financial Officer since July 2020. Prior to that, he was Senior Vice President and Operations Controller in 2020, Senior Vice President and Segment Controller — Energy & Chemicals from 2018 to 2020 and Vice President and Segment Controller — Energy & Chemicals from 2016 to 2018 and as the general manager of the company's Southern California operations from 2013 to 2016. Mr. Brennan joined the company in 1991.
James R. Breuer
Mr. Breuer has been Group President, Energy Solutions since January 2021. Prior to that, he was President, Downstream — Energy & Chemicals from 2019 to 2021, Vice President and General Manager, South America — Mining & Metals from 2017 to 2019 and Director of Operations, ICA Fluor from 2013 to 2017. Mr. Breuer joined the company in 1993.
Alvin C. Collins III
Mr. Collins has been Group President, Corporate Development and Sustainability since January 2021. Prior to that, he was Senior Vice President, Operations — Energy & Chemicals from 2019 to 2021, Senior Vice President, Global Business Development — Energy & Chemicals in 2019, Senior Vice President, Operations in Europe, Africa and the Middle East — Energy & Chemicals from 2016 to 2019. Mr. Collins joined the company in 1994.
David E. Constable
Mr. Constable has been Chief Executive Officer since January 2021, after serving as a member of Fluor's Board of Directors since 2019. He previously served as Chief Executive Officer (from 2011) and Chief Executive Officer and President (from 2014) of Sasol Ltd., an integrated energy and chemical company, until 2016. Prior to that, he was Group President, Project Operations at the company from 2009 to 2011 and Group President, Power from 2005 to 2009. Mr. Constable first joined the company in 1982.
Thomas P. D'Agostino
Mr. D'Agostino has been Group President, Mission Solutions since January 2021. Prior to that, he was Group President, Government from 2017 to 2021, Senior Vice President, Sales —Government from 2015 to 2017 and Senior Vice President, Strategic Planning and Development — Government from 2013 to 2015. Mr. D'Agostino joined the company in 2013.
Stacy L. Dillow
Ms. Dillow has been Executive Vice President and Chief Human Resources Officer since 2019. Prior to that, she was Head of Supply Chain Transformation, Southeast Asia and Australasia at Unilever, a consumer goods company, from 2018 to 2019. Prior to that, she was Senior Project Director — Energy & Chemicals at the company from 2014 to 2017. Ms. Dillow first joined the company in 1996.
Mark E. Fields
Mr. Fields has been Group President, Project Execution since January 2021. Prior to that, he was Group President, Energy & Chemicals from 2019 to 2021, Senior Vice President, Energy & Chemicals Americas from 2017 to 2019 and Senior Vice President, Project Director — Energy & Chemicals from 2009 to 2017. Mr. Fields joined the company in 1981.
John C. Regan
Mr. Regan has been Executive Vice President, Controller and Chief Accounting Officer since June 2020. Prior to joining the company, he was Executive Vice President and Chief Financial Officer of Alta Mesa Resources, Inc., an upstream exploration and production company, from 2019 to 2020, and Executive Vice President and Chief Financial Officer of Vine Oil and Gas LP and Brix Oil and Gas LP, private companies focused on natural gas exploration, from 2015 to 2018. Alta Mesa
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Resources, Inc. and certain of its subsidiaries filed for protection under Chapter 11 of the U.S. Bankruptcy Code in September 2019.
John R. Reynolds
Mr. Reynolds has been Executive Vice President and Chief Legal Officer since 2019 and Secretary since 2020. Prior to that, he was Vice President and Senior Managing General Counsel from 2017 to 2019 and Managing General Counsel from 2005 to 2017. Mr. Reynolds joined the company in 1985.
Terry W. Towle
Mr. Towle has been Group President, Urban Solutions since January 2021. Prior to that, he was Group President, Infrastructure & Power from 2019 to 2021, Senior Vice President, Project Director — Infrastructure from 2015 to 2019 and Senior Vice President, Business Line President — Infrastructure from 2014 to 2015. Mr. Towle joined the company in 1985.
Available Information
Our website address is www.fluor.com. You may obtain free electronic copies of our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports on the “Investor Relations” portion of our website, under the heading “SEC Filings” filed under “Financial Information.” These reports are available on our website as soon as reasonably practicable after we electronically file them with the SEC. These reports, and any amendments to them, are also available at the Internet website of the SEC, http://www.sec.gov. We also use our investor relations website as a channel of distribution for important company information. Investors and others can receive notifications of new information posted on our investor relations website in real time by signing up for e-mail alerts and RSS feeds. We also maintain various documents related to our corporate governance including our Corporate Governance Guidelines, our Board Committee Charters and our Code of Business Conduct and Ethics for Members of the Board of Directors on the “Sustainability” portion of our website under the heading “Corporate Governance Documents” filed under “Governance.”
Item 1A.    Risk Factors
We operate in a complex and rapidly changing global environment that involves numerous known and unknown risks and uncertainties that could materially adversely affect our business, financial condition, results of operations, and stock price. The risks described below highlight some of the factors that have affected and could affect us in the future. We may also be affected by unknown risks or risks that we currently think are immaterial. If any such events actually occur, our business, financial condition, results of operations, and stock price could be materially adversely affected.
Summary Risk Factors
The following summarizes the risks and uncertainties that could materially adversely affect our business, financial condition, results of operation and stock price. You should read this summary together with the more detailed description of each risk factor contained below.
Risks Related to our Operations
•COVID-19 has had and could continue to have a material adverse effect on our business operations, results of operations and financial position.
•We are vulnerable to the cyclical nature of the markets we serve.
•Our revenue and earnings are largely dependent on the award of new contracts, which is driven by our clients.
•The nature of our contracts, particularly our lump-sum contracts, subject us to risks associated with delays and cost overruns, which may not be recoverable and may result in reduced profits or losses that could have a material impact on our financial condition or results of operations.
•Intense competition in the global EPC industry can reduce our revenue and profits.
•The success of our use of teaming arrangements and joint ventures depends on the satisfactory performance by our venture partners over whom we may have little or no control, and the failure of those partners to perform their obligations could impose additional obligations on us that could have a material impact on our financial condition and results of operations.
•Cybersecurity breaches of our systems and information technology could adversely impact our ability to operate.
•We have international operations that are subject to foreign economic and political uncertainties and risks. Unexpected and adverse changes in the foreign countries in which we operate could result in project disruptions, increased cost and potential losses.
•Our backlog is subject to unexpected adjustments and cancellations.
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•Our employees work on projects that are inherently dangerous and in locations where there are high security risks, and a failure to maintain a safe work site could result in significant losses.
•Our businesses could be materially and adversely affected by events outside of our control.
•Our actual results could differ from the assumptions and estimates used to prepare our financial statements.
•If we experience delays and/or defaults in client payments, we could suffer liquidity problems or we could be unable to recover all expenditures.
•We are dependent upon suppliers and subcontractors to complete many of our contracts.
•Our U.S. government contracts and contracting rights may be terminated or otherwise adversely impacted at any time, and our inability to win or renew government contracts during regulated procurement processes could harm our operations and reduce our projects and revenues.
•Our continued success requires us to hire and retain qualified personnel.
•Our effective tax rate and tax positions may vary.
•Systems and information technology interruption, as well as new systems implementation, could adversely impact our ability to operate and our operating results.
•It can be very difficult and expensive to obtain the insurance we need for our business operations.
•If we do not have adequate indemnification for our nuclear services, it could adversely affect our business and financial condition.
•Foreign currency risks could have an adverse impact on revenue, earnings and/or backlog.
•The loss of one or a few clients could have an adverse effect on us.
•Damage to our reputation could in turn cause damage to our business.
•Our business may be negatively impacted if we are unable to adequately protect intellectual property rights.
•Our results of operations could be adversely affected as a result of asset impairments.
Risks Related to Financial Reporting
•We identified material weaknesses in our ICFR in 2019, which were remediated in 2020. If we identify material weaknesses in the future or otherwise fail to maintain an effective system of internal controls, we may not be able to accurately and timely report our financial results.
•Our prior failure to prepare and timely file our periodic reports with the SEC limits our access to the public markets to raise debt or equity capital and restricts our ability to issue equity securities.
•We restated certain of our previously issued financial statements during 2020, which resulted in unanticipated costs and may affect investor confidence and raise reputational issues.
Risks Related to Indebtedness and other Credit Related Risks
•Adverse credit and financial market conditions could impair our, our clients' and our partners' borrowing capacity, which could negatively affect our business operations, profits and growth objectives.
•Our indebtedness could lead to adverse consequences or adversely affect our financial position and prevent us from fulfilling our obligations under such indebtedness, and any refinancing of this debt could be at significantly higher interest rates.
•We may be unable to win new contract awards if we cannot provide clients with letters of credit, bonds or other security or credit enhancements.
Legal and Regulatory Risks
•From time to time, we are involved in litigation and regulatory proceedings, potential liability claims and contract disputes that may have a material impact on our financial condition and results of operations.
•Our failure to recover adequately on claims against project owners, subcontractors or suppliers for payment or performance could have a material effect on our financial results.
•We could be adversely affected by violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery laws.
•We could be adversely impacted if we fail to comply with domestic and international import and export laws.
•Employee, agent or partner misconduct or our overall failure to comply with laws or regulations could weaken our ability to win contracts, which could result in reduced revenues and profits.
•New or changing legal requirements, including those relating to climate change, could adversely affect our operating results.
•Past and future environmental, safety and health regulations could impose significant additional costs on us that reduce our profits.

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Risks Related to Mergers & Acquisitions and Strategic Plans
•We cannot assure the successful implementation of our strategic and operational initiatives.
•Any acquisitions, dispositions or other investments are subject to various risks or uncertainties and may not be completed in accordance with the expected plans or anticipated time frame, or at all, and will involve significant time and expense, which could disrupt or adversely affect our business.
•We may be unable to successfully integrate acquisitions or investments we make into our businesses or capture the anticipated benefits of these acquisitions and investments.
Risks Related to our Common Stock
•In the event we issue additional equity securities, stockholders' ownership percentages would be diluted.
•Delaware law, our charter documents and our stockholder rights agreement may impede or discourage a takeover or change of control.
Risks Related to our Operations
COVID-19 has had and could continue to have a material adverse effect on our business operations, results of operations and financial position.
There have been extraordinary and wide-ranging actions taken by international, federal, state and local public health and governmental authorities in response to COVID-19, including quarantines, government restrictions on movement, business closures and suspensions, canceled events and activities, self-isolation, and other voluntary or mandated changes in behavior. Both the outbreak of the disease and actions in response thereto have created significant uncertainty and economic volatility and disruption, which have impacted and may continue to impact our workforce and operations and have materially adversely affected and may continue to materially adversely affect our results of operations and financial performance, including, but not limited to, the following:
•We have experienced, and may continue to experience, reductions in demand for certain of our services and the delay or abandonment of ongoing or anticipated projects due to our clients’, suppliers’ and other third parties’ diminished financial conditions or financial distress, as well as governmental budget constraints. These impacts are expected to continue or worsen if stay-at-home, social distancing, travel restrictions and other similar orders or restrictions remain in place for an extended period of time or are re-imposed after being lifted or eased.
•Some clients have been, and may in the future be, unable to meet their payment obligations to us in a timely manner, including as a result of deteriorating financial condition or bankruptcy. Further, other third parties, such as suppliers, subcontractors, joint venture partners and other outside business partners, have experienced significant disruptions in their ability to satisfy their obligations with respect to us, or they may be unable to do so in the future altogether.
•Many employers, including us, and governments continue to require all or a significant portion of employees to work remotely. While many of our employees can effectively perform their responsibilities while working remotely, some work may not be completed as efficiently as if it were performed on site. Additionally, we may be exposed to unexpected cybersecurity risks and additional information technology-related expenses as a result of these remote working requirements.
•Illness, travel restrictions or other workforce disruptions have affected, and may continue to affect, our supply chain, our ability to timely and satisfactorily complete our clients’ projects, our ability to provide services to our clients or our other business processes.
•We have furloughed certain employees and may need to further furlough or reduce the number of employees that we employ. We may experience difficulties associated with hiring additional employees or replacing employees, in particular with respect to roles that require security clearances or other special qualifications that may be limited or difficult to obtain.
•In addition to existing travel restrictions implemented in response to COVID-19, jurisdictions may continue to close borders, impose prolonged quarantines and further restrict travel and business activity, which could materially impair our ability to conduct our operations, to source supplies through the global supply chain and to identify, pursue and capture new business opportunities, and which could continue to restrict the ability of our employees to access their workplaces. We also face the possibility of increased overhead or other expenses resulting from compliance with any future government orders or other measures enacted in response to COVID-19.
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•We operate in many countries around the world, and certain of those countries’ governments may be unable to effectively mitigate the financial or other impacts of COVID-19 on their economies and workforces and our operations therein.
The extent to which COVID-19 will continue to impact us depends on numerous evolving factors and future developments that we are not currently able to predict and may also exacerbate other risks discussed in this 2020 10-K, any of which could have a material adverse effect on us, our business operations, results of operations and financial position.
We are vulnerable to the cyclical nature of the markets we serve.
The demand for our services is dependent upon the existence of projects with engineering, procurement, construction, fabrication, maintenance and management needs. Our clients' interest in approving new projects, budgets for capital expenditures and need for our services have in the past been, and may in the future be, adversely affected by, among other things, poor economic conditions, low oil prices, political uncertainties and currency devaluations. Clients have been and remain selective in how they allocate and expend their capital, which has resulted in a reduction of the number of projects we may bid on and win, especially the larger scale projects in which we specialize. For example, in our Energy & Chemicals segment, capital expenditures by our clients are influenced by factors such as prevailing prices and expectations about future prices for underlying commodities, technological advances, the costs of exploration, production and delivery of product, domestic and international political, military, regulatory and economic conditions and other similar factors. As a result of the decline in oil prices in the first quarter of 2020, demand for our services in our Energy & Chemicals segment has been adversely impacted. There is no guarantee that the current recovery in oil prices will be sustained, and the timing and extent of any future improvements in demand remain uncertain. Industries served by that segment and many of the others we serve have historically been and will continue to be vulnerable to general downturns, which in turn could materially and adversely affect the demand for our services.
Our revenue and earnings are largely dependent on the award of new contracts, which is driven by our clients.
The awarding and timing of projects is unpredictable and driven by our clients. Awards, including expansions of existing projects, often involve complex and lengthy negotiations and competitive bidding processes. These processes can be impacted by a wide variety of factors including a client's decision to not proceed with the development of a project, governmental approvals, financing contingencies, oil prices, environmental conditions and overall market and economic conditions. We may not win contracts that we have bid on due to price, a client's perception of our ability to perform and/or perceived technology advantages held by others. Many of our competitors may be more inclined to take greater or unusual risks or include terms and conditions in a contract that we might not deem acceptable, especially when the markets for the services we typically offer are relatively soft. Because a significant portion of our revenue is generated from large projects, our results of operations can fluctuate depending on whether and when large project awards occur and the commencement and progress of work under large contracts already awarded. As a result, we are subject to the risk of losing new awards to competitors or the risk that revenue may not be derived from awarded projects as quickly as anticipated. Additionally, uncertain economic and political conditions may make it difficult for our clients, our vendors and us to accurately forecast and plan future business activities. For example, recent changes to U.S. policies related to global trade and tariffs have resulted in uncertainty surrounding the future of the global economy as well as retaliatory trade measures implemented by other countries.
The nature of our contracts, particularly our lump-sum contracts, subject us to risks associated with delays and cost overruns, which may not be recoverable and may result in reduced profits or losses that could have a material impact on our financial condition or results of operations.
Because our projects are often technically complex, with multiple phases occurring over several years, we incur risks in our project execution activities. These risks could result in project delays, cost overruns or other problems and can include the following:
•Incorrect assumptions related to productivity, scheduling estimates or future economic conditions, including with respect to the impacts of inflation on lump-sum contracts;
•Unanticipated technical problems, including design or engineering issues;
•Inaccurate representations of site conditions and unanticipated changes in the project execution plan;
•Project modifications creating unanticipated costs or delays and failure to properly manage project modifications;
•Inability to achieve guaranteed performance or quality standards with regard to engineering, construction or project management obligations;
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•Insufficient or inadequate project execution tools and systems needed to record, track, forecast and control cost and schedule;
•Reliance on historic cost and/or execution data that is not representative of current economic and/or execution conditions;
•Failure to accurately estimate the timing and cost of projects, including due to unforeseen increases in the cost of labor;
•Unanticipated increases in the cost of raw materials, components or equipment, including due to the imposition of import tariffs;
•Failure to properly make judgments in accordance with applicable professional standards, including engineering standards;
•Failure to properly assess and update appropriate risk mitigation strategies and measures;
•Difficulties related to the performance of our clients, partners, subcontractors, suppliers or other third parties;
•Delays or productivity issues caused by weather; and
•Changes in local laws or difficulties or delays in obtaining permits, rights of way or approvals.
These and other risks have in the past and may in the future result in our failure to achieve contractual cost or schedule commitments, safety performance, overall client satisfaction or other performance criteria. As a result, we may receive lower fees or lose our ability to earn incentive fees. In other cases, our fee will not change but we will have to continue to perform work without additional fees until the performance criteria is achieved. We may also be required to pay liquidated damages if we fail to complete a project on schedule. In addition, if we fail to meet guaranteed performance or quality standards, we may be held responsible under the guarantee or warranty provisions of our contract for cost impact to the client, generally in the form of contractually agreed-upon liquidated damages or an obligation to re-perform work. To the extent these events occur, the total cost to the project (including any liquidated damages we become liable to pay) could be material and could, in some circumstances, equal or exceed the full value of the contract. In such events, our financial condition or results of operations could be materially and negatively impacted.
In circumstances where the contract is lump-sum or the revenue is otherwise fixed, we bear significant risk for delays and cost overruns. Reimbursable contract types, such as those that include negotiated hourly billing rates, may restrict the kinds or amounts of costs that are reimbursable, therefore exposing us to the risk that we may incur certain costs in executing these contracts that are above our estimates and not recoverable from our clients.
Intense competition in the global EPC industry can reduce our revenue and profits.
We serve markets that are highly competitive and in which a large number of multinational companies compete. These markets require substantial resources and investment in technology and skilled personnel. We also see a continuing influx of non-traditional competitors offering below-market pricing while accepting greater risk. Competition places downward pressure on our contract prices and profit margins, and has in the past forced, and may in the future force, us to accept contractual terms and conditions that are not normal or customary, thereby increasing the risk of losses on such contracts. Intense competition is expected to continue in these markets, presenting us with significant challenges in our ability to maintain strong growth rates and acceptable profit margins. To the extent we are unable to meet these competitive challenges, we could lose revenue and experience an overall reduction in our profits.
The success of our use of teaming arrangements and joint ventures depends on the satisfactory performance by our venture partners over whom we may have little or no control, and the failure of those partners to perform their obligations could impose additional obligations on us that could have a material impact on our financial condition and results of operations.
In the ordinary course of business, and as has become increasingly common in our industry, we execute specific projects and otherwise conduct certain operations through joint ventures, consortiums, partnerships and other collaborative arrangements (collectively, "ventures"). We have various ownership interests in these ventures, with such ownership typically being proportionate to our decision-making and distribution rights. The ventures generally contract directly with the third party client; however, services may be performed directly by the venture, or may be performed by us, our partners, or a combination thereof.
Our success in many markets is dependent, in part, on the presence or capability of a local partner. If we are unable to compete alone, or with a quality partner, our ability to win work and successfully complete our contracts may be impacted.
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Differences in opinions or views between venture partners can result in delayed decision-making or failure to agree on material issues, which could adversely affect the business and operations of our ventures. In many of the countries in which we engage in joint ventures, it may be difficult to enforce our contractual rights under the applicable joint venture agreement.
At times, we also participate in ventures where we are not a controlling party or where we team with unaffiliated parties on a particular project bid. In such instances, we may have limited control over venture decisions and actions, including internal controls and financial reporting, which may have an impact on our business. If internal control problems arise within the joint venture, or if our joint venture partners have financial or operational issues, there could be a material impact on our business, financial condition or results of operations.
The success of these and other ventures also depends, in large part, on the satisfactory performance by our venture partners of their venture obligations, including their obligation to commit working capital, equity or credit support as required by the venture and to support their indemnification and other contractual obligations. If our venture partners fail to satisfactorily perform their venture obligations, the venture may be unable to adequately perform or deliver its contracted services. Under these circumstances, we may be required to make additional investments and provide additional services to ensure the adequate performance and delivery by the venture of the contracted services and to meet any performance guarantees. From time to time, in order to establish or preserve a relationship, or to better ensure venture success, we may accept risks or responsibilities for the venture that are not necessarily proportionate with the reward we expect to receive or that may differ from risks or responsibilities we would normally accept in our own operations. We may also be subject to joint and several liability for our venture partners under the applicable contracts for venture projects. These additional obligations could result in reduced profits or, in some cases, increased liabilities or significant losses for us with respect to the venture, and in turn, our business and operations. In addition, a failure by a venture partner to comply with applicable laws, rules or regulations could negatively impact our business and reputation and could result in fines, penalties, suspension or, in the case of government contracts, even debarment.
Cybersecurity breaches of our systems and information technology could adversely impact our ability to operate.
We utilize, develop, install and maintain a number of information technology systems both for us and for others. Various privacy and security laws require us to protect sensitive and confidential information from disclosure. In addition, we are bound by our client and other contracts, as well as our own business practices, to protect confidential and proprietary information (whether it be ours or a third party's information entrusted to us) from disclosure. Our computer systems, as well as those of our clients, contractors and other vendors, face the threat of unauthorized access, computer hackers, viruses, malicious code, cyber attacks, phishing and other security incursions and system disruptions, including attempts to improperly access our confidential and proprietary information as well as the confidential and proprietary information of our clients and other business partners. While we endeavor to maintain industry-accepted security measures and technology to secure our computer systems and while we endeavor to ensure our cloud vendors that store our data maintain similar measures, these systems and the information stored on these systems may still be subject to threats. There can be no assurance that our efforts will protect us against all threats. Further, as these security threats continue to evolve, we may be required to devote additional resources to protect, detect and respond against such threats. A party who circumvents our security measures, or those of our clients, contractors or other vendors, could misappropriate confidential or proprietary information, improperly manipulate data, or cause damage or interruptions to systems. Any of these events could damage our reputation, result in litigation and regulatory fines and penalties, or have a material adverse effect on our business, financial condition or results of operations. Furthermore, while we maintain insurance that specifically covers cybersecurity threats, our coverage may not sufficiently cover all types of losses or claims that may arise.
We have international operations that are subject to foreign economic and political uncertainties and risks. Unexpected and adverse changes in the foreign countries in which we operate could result in project disruptions, increased cost and potential losses.
Our business is subject to international economic and political conditions that change (sometimes frequently) for reasons that are beyond our control. We expect that a significant portion of our revenue and profits will continue to come from international projects for the foreseeable future.
Operating in the international marketplace exposes us to a number of risks including:
•abrupt changes in government policies, laws, treaties (including those impacting trade), regulations or leadership;
•embargoes or other trade restrictions, including sanctions;
•restrictions on currency movement;
•tax or tariff changes;
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•currency exchange rate fluctuations;
•changes in labor conditions and difficulties in staffing and managing international operations, including logistical and communication challenges;
•U.S. government trade or other policy changes in relation to the foreign countries in which we or our clients operate;
•other social, political and economic instability, including recessions and other economic crises in other regions;
•natural disasters and public health crises, including pandemics such as COVID-19;
•expropriation and nationalization of our assets in a foreign country;
•international hostilities; and
•unrest, civil strife, acts of war, terrorism and insurrection.
Also, the lack of a well-developed legal system in some of the countries where we operate may make it difficult to enforce our contractual rights or to defend ourself against claims made by others. We operate in locations where there is a significant amount of political risk. In addition, military action or continued unrest could impact the supply or pricing of oil, disrupt our operations in the region and elsewhere, and increase our security costs. Our level of exposure to these risks may vary with each project, depending on the location of the project and its stage of completion. For example, our risk exposure with respect to a project in an early development phase, such as engineering, will generally be less than our risk exposure on a project that is in the construction phase. To the extent that our international business is affected by unexpected and adverse foreign economic and political conditions and risks, we may experience project disruptions and losses. Project disruptions and losses could significantly reduce our overall revenue and profits.
Our backlog is subject to unexpected adjustments and cancellations.
Our backlog generally consists of projects for which we have an executed contract or commitment with a client and reflects our expected revenue from the contract or commitment, which is often subject to revision over time. We cannot guarantee that the revenue projected in our backlog will be realized or profitable or will not be subject to delay or suspension. Project cancellations, scope adjustments or deferrals, or foreign currency fluctuations may occur with respect to contracts reflected in our backlog and could reduce the dollar amount of our backlog and the revenue and profits that we actually earn; or, may cause the rate at which we perform on our backlog to decrease. Most of our contracts have termination for convenience provisions in them allowing clients to cancel projects already awarded to us. Our contracts typically provide for the payment of fees earned through the date of termination and the reimbursement of costs incurred including demobilization costs. In addition, projects may remain in our backlog for an extended period of time. During periods of economic slowdown, or decreases and/or instability in oil prices, the risk of projects being suspended, delayed or canceled generally increases. Finally, poor project or contract performance could also impact our backlog and profits. Such developments could have a material adverse effect on our business and our profits.
Our employees work on projects that are inherently dangerous and in locations where there are high security risks, and a failure to maintain a safe work site could result in significant losses.
We often work on complex projects, frequently in geographically remote or high-risk locations that are subject to political, social or economic risks, or war or civil unrest. In those locations where we have employees or operations, we may expend significant efforts and incur substantial security costs to maintain the safety of our personnel. In addition, our project sites can place our employees and others near large equipment, dangerous processes or substances or highly regulated materials, and in challenging environments. Safety is a primary focus of our business and is critical to our reputation and performance. Many of our clients require that we meet certain safety criteria to be eligible to bid on contracts, and some of our contract fees or profits are subject to satisfying safety criteria. Unsafe work conditions also have the potential of increasing employee turnover, increasing project costs and raising our operating costs. If we fail to implement appropriate safety procedures and/or if our procedures fail, our employees or others may suffer injuries or even loss of life, the completion of a project could be delayed and we could experience investigations or litigation. Although we maintain functional groups whose primary purpose is to implement effective health, safety and environmental procedures throughout our company, the failure to comply with such procedures, client contracts or applicable regulations could subject us to losses and liability. Despite these activities, in these locations and at these sites, we cannot guarantee the safety of our personnel, nor can we guarantee our work, equipment or supplies will be free from damage.
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Our businesses could be materially and adversely affected by events outside of our control.
Extraordinary or force majeure events beyond our control, such as natural or man-made disasters, severe weather conditions, public health crises, political crises or other catastrophic events, could negatively impact our ability to operate or increase our costs to operate. Such events may result in disruptions to our operations; evacuation of personnel; increased labor and material costs or shortages; inability to deliver materials, equipment and personnel to jobsites in accordance with contract schedules; and loss of productivity. We may remain obligated to perform our services after any such events, unless a contract provision provides us with relief from our obligations. The extra costs incurred as a result of these events may not be reimbursed by our clients. If we are not able to react quickly to such events, or if a high concentration of our projects are impacted by such an event, our operations may be adversely affected. In addition, if we cannot complete our contracts on time, we may be subject to potential liability claims by our clients, which may reduce our profits and result in losses.
Our actual results could differ from the assumptions and estimates used to prepare our financial statements.
In preparing our financial statements, we make estimates and assumptions through the filing date of the 2020 10-K. These estimates and assumptions affect the reported values of assets, liabilities, revenue and expenses, and the disclosure of contingent assets and liabilities. Areas requiring significant estimates by our management include:
•recognition of contract revenue, costs, profits or losses in applying the principles of percentage-of-completion accounting;
•recognition of revenues related to project incentives or awards we expect to receive;
•recognition of recoveries under contract change orders or claims;
•estimated amounts for expected project losses, warranty costs, contract close-out or other costs;
•collectability of billed and unbilled accounts receivable and the need and amount of any allowance for doubtful accounts;
•asset valuations;
•income tax provisions and related valuation allowances;
•determination of expense and potential liabilities under pension and other post-retirement benefit programs; and
•accruals for other estimated liabilities, including litigation and insurance revenues/reserves.
Estimates are based on management's reasonable assumptions and experience, but are only estimates. Our actual business and financial results could differ from our estimates of such results due to changes in facts and circumstances, which could have a material negative impact on our financial condition and reported results of operations. Further, we recognize contract revenue as work on a contract progresses. The cumulative amount of revenue recorded on a contract at any point in time is that percentage of total estimated revenues that costs incurred to date bear to estimated total costs. Accordingly, contract revenue and total cost estimates are reviewed and revised as the work progresses. Adjustments are reflected in contract revenue in the period when such estimates are revised. Such adjustments could be material and could result in reduced profitability.
If we experience delays and/or defaults in client payments, we could suffer liquidity problems or we could be unable to recover all expenditures.
Because of the nature of our contracts, we sometimes commit resources to projects prior to receiving payments from clients in amounts sufficient to cover expenditures as they are incurred. Some of our clients have found it difficult to pay invoices for our services timely, increasing the risk that our accounts receivable could become uncollectible and ultimately be written off. In certain cases, our clients for our large projects are project-specific entities that do not have significant assets other than their interests in the project. From time to time, it has been and may in the future be difficult for us to collect payments owed to us by these clients. In addition, clients may request extension of the payment terms otherwise agreed to under our contracts. Delays in client payments may require us to make a working capital investment, which could impact our cash flows and liquidity. If a client fails to pay invoices on a timely basis or defaults in making its payments on a project in which we have devoted significant resources, there could be a material adverse effect on our results of operations or liquidity.
We are dependent upon suppliers and subcontractors to complete many of our contracts.
Some of the work performed under our contracts is performed by third-party subcontractors. We also rely on third-party suppliers to provide much of the equipment and materials used for projects. If we are unable to hire qualified
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subcontractors or find qualified suppliers, our ability to successfully or timely complete a project could be impaired. If the amount we are required to pay for subcontractors or equipment and supplies exceeds what we have estimated, especially in a lump-sum contract, we may suffer losses on these contracts. If a supplier or subcontractor fails to provide supplies, technology, equipment or services as required under a contract to us, our joint venture partner, our client or any other party involved in the project for any reason, or provides supplies, technology, equipment or services that are not an acceptable quality, we may be required to source those supplies, technology, equipment or services on a delayed basis or at a higher price than anticipated, which could impact contract profitability. In addition, faulty workmanship, equipment or materials could impact the overall project, resulting in claims against us for failure to meet required project specifications. These risks may be intensified during an economic downturn if these suppliers or subcontractors experience financial difficulties or find it difficult to obtain sufficient financing to fund their operations or access to bonding, and are not able to provide the services or supplies necessary for our business. In addition, in instances where we rely on a single contracted supplier or subcontractor or a small number of suppliers or subcontractors, if a subcontractor or supplier were to fail, there may be no available replacement technology, equipment, materials or services on a timely basis or at the costs we had anticipated. A failure by a third-party subcontractor or supplier to comply with applicable laws, rules or regulations could negatively impact our business and reputation and could result in fines, penalties, suspension, or in the case of government contracts, even debarment.
Our U.S. government contracts and contracting rights may be terminated or otherwise adversely impacted at any time, and our inability to win or renew government contracts during regulated procurement processes could harm our operations and reduce our projects and revenues.
We enter into significant government contracts, including those contracts that we have in place with the U.S. Department of Energy and Department of Defense. U.S. government contracts are subject to various uncertainties, restrictions and regulations, including oversight audits by government agencies and profit and cost controls, which could result in withholding or delay of payments to us. U.S. government contracts are also subject to uncertainties associated with Congressional funding, including the potential impacts of budget deficits, government shutdowns and federal sequestration. Changes in U.S. government priorities, which can occur due to policy changes or changes in the economy, could adversely impact our revenues. The U.S. government is under no obligation to maintain program funding at any specific level, and funds for a program may even be eliminated. Our U.S. government clients may terminate or decide not to renew our contracts with little or no prior notice.
In addition, U.S. government contracts are subject to specific regulations such as the Federal Acquisition Regulation ("FAR"), the Truth in Negotiations Act, the Cost Accounting Standards ("CAS"), the Service Contract Act and Department of Defense security regulations. Failure to comply with any of these regulations and other government requirements may result in contract price adjustments, financial penalties or contract termination. Our U.S. government contracts are also subject to audits, cost reviews and investigations by U.S. government oversight agencies such as the U.S. Defense Contract Audit Agency (the "DCAA"). The DCAA reviews the adequacy of, and our compliance with, our internal control systems and policies (including our labor, billing, accounting, purchasing, estimating, compensation and management information systems). The DCAA also has the ability to review how we have accounted for costs under the FAR and CAS. The DCAA presents its report findings to the Defense Contract Management Agency ("DCMA"). Should the DCMA determine that we have not complied with the terms of our contract and applicable statutes and regulations, or if they believe that we have engaged in inappropriate accounting or other activities, payments to us may be disallowed or we could be required to refund previously collected payments. Additionally, we may be subject to criminal and civil penalties, suspension or debarment from future government contracts, and qui tam litigation brought by private individuals on behalf of the U.S. government under the False Claims Act, which could include claims for treble damages. These suits may remain under seal (and hence, be unknown to us) for some time while the government decides whether to intervene on behalf of the qui tam plaintiff. Furthermore, if we have significant disagreements with our government clients concerning costs incurred, negative publicity could arise, which could adversely affect our industry reputation and our ability to compete for new contracts in the government arena or otherwise.
Most U.S. government contracts are awarded through a rigorous competitive process. The U.S. government has increasingly relied upon multiple-year contracts with pre-established terms and conditions that generally require those contractors that have been previously awarded the contract to engage in an additional competitive bidding process for each task order issued under the contract. Such processes require successful contractors to anticipate requirements and develop rapid-response bid and proposal teams as well as dedicated supplier relationships and delivery systems to react to these needs. We face rigorous competition and significant pricing pressures in order to win these task orders. If we are not successful in containing costs or able to timely respond to government requests, we may not win additional awards. Moreover, even if we are qualified to work on a government contract, we may be impacted in our pursuit of work by government policies designed to protect small businesses and under- represented minority contractors.
Many of our U.S. government contracts require security clearances. Depending upon the level of clearance required, security clearances can be difficult and time-consuming to obtain. If we or our employees are unable to obtain or retain
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necessary security clearances, we may not be able to win new business, and our existing government clients could terminate their contracts with us or decide not to renew them.
Under the Budget Control Act of 2011, an automatic sequestration process, or across-the-board budget cuts, was triggered when the Joint Select Committee on Deficit Reduction, a committee of twelve members of Congress, failed to agree on a deficit reduction plan for the U.S. federal budget. The Bipartisan Budget Act of 2019 (the “BBA”) eliminates sequestration on discretionary accounts in 2020 and 2021 by increasing federal discretionary spending limits until 2021. The BBA also temporarily suspends the public debt limit through July 31, 2021. However, the Budget Control Act of 2011 remains in place, extended through 2029, and absent additional legislative or other remedial action, the sequestration could require reduced U.S. federal government spending from 2022 through 2029. A significant reduction in federal government spending or a change in budgetary priorities could reduce demand for our services, cancel or delay federal projects, and result in the closure of federal facilities and significant personnel reductions, which could have a material adverse effect on our results of operations and financial condition.
Our continued success requires us to hire and retain qualified personnel.
The success of our business is dependent upon being able to attract, develop and retain personnel, including engineers, project management, craft employees and management around the globe, who have the necessary and required experience and expertise, and who will perform these services at a reasonable and competitive rate. Competition for these and other experienced personnel is intense. It may be difficult to attract and retain qualified individuals with the expertise and in the timeframe demanded by our clients. In certain geographic areas, for example, we may be unable to satisfy the demand for our services because of our inability to deploy qualified personnel. Also, it may be difficult to replace personnel who hold government granted eligibility that may be required to obtain certain government projects and/or who have significant government contract experience. Loss of the services of, or failure to recruit, qualified technical and management personnel could limit our ability to successfully complete existing projects and compete for new projects.
As some of our executives and other key personnel approach retirement age or otherwise leave the company, we need to provide for smooth transitions, which may require that we devote time and resources to identify and integrate new personnel into these leadership roles and other key positions. Changes in our management team may disrupt our business and the failure to successfully transition and assimilate executives or other key personnel could adversely affect our results of operation. If we are unable to employ a sufficient number of skilled personnel or effectively implement appropriate succession plans, our ability to pursue projects may be adversely affected, the costs of executing our existing and future projects may increase and our financial performance may decline.
In addition, the cost of providing our services, including the extent to which we utilize our workforce, affects our profitability. For example, the uncertainty of contract award timing can present difficulties in matching our workforce size with our contracts. If an expected contract award is delayed or not received, we could incur costs resulting from excess staff, reductions in staff, or redundancy of facilities that could have a material adverse impact on our business, financial conditions and results of operations.
Our effective tax rate and tax positions may vary.
We are subject to income taxes in the United States and numerous foreign jurisdictions. A change in tax laws, treaties or regulations, or their interpretation, in any country in which we operate could change the tax rate on our earnings, which could have a material impact on our results of operations. In addition, significant judgment is required in determining our worldwide provision for income taxes and our judgments could prove inaccurate. In the ordinary course of our business, there are many transactions and calculations where the ultimate tax determination is uncertain. We are regularly under audit by tax authorities, and our tax estimates and tax positions could be materially affected by many factors including the final outcome of tax audits and related litigation, the introduction of new tax accounting standards, legislation, regulations and related interpretations, our global mix of earnings, our ability to realize deferred tax assets and changes in uncertain tax positions. Future changes in our tax rate or adverse changes in tax laws could have a material adverse effect on our profitability and liquidity.
Systems and information technology interruption, as well as new systems implementation, could adversely impact our ability to operate and our operating results.
As a global company, we are heavily reliant on computer, information and communications technology and related systems, some of which are hosted by third party providers, in order to operate. From time to time, we experience system interruptions and delays that may be planned for upgrades or that may be unplanned. Unplanned interruptions could result from natural disasters, power loss, telecommunications failures, acts of war or terrorism, acts of God, computer viruses, physical or electronic break-ins and similar events or disruptions. Any of these or other events could cause system interruptions, delays, loss of critical or sensitive data (including personal or financial data) or loss of funds; could delay or
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prevent operations (including the processing of transactions and reporting of financial results); and could adversely affect our reputation or our operating results. While we have and require the maintenance of reasonable safeguards designed to protect against unavailability or loss of data, these safeguards may not be sufficient. We may be required to expend significant resources to protect against or alleviate damage caused by systems interruptions and delays, which could have a material adverse effect on our business and cash flows.
We continue to evaluate the need to upgrade and/or replace our systems and network infrastructure to protect our computing environment, to stay current on vendor supported products, to improve the efficiency of our systems and for other business reasons. The implementation of new systems and information technology could adversely impact our operations by imposing substantial capital expenditures, demands on management time and risks of delays or difficulties in transitioning to new systems. Our systems implementations also may not result in productivity improvements at the levels anticipated. Systems implementation disruption and any other information technology disruption, if not anticipated and appropriately mitigated, could have a material adverse effect on our business.
It can be very difficult and expensive to obtain the insurance we need for our business operations.
As part of business operations we maintain insurance both as a corporate risk management strategy and to satisfy the requirements of many of our contracts. Although we have been generally able to cover our insurance needs, there can be no assurances that we can secure all necessary or appropriate insurance in the future, or that such insurance can be economically secured. For example, catastrophic events can result in decreased coverage limits, more limited coverage, increased premium costs or deductibles. We also monitor the financial health of the insurance companies from which we procure insurance, and this is one of the factors we take into account when purchasing insurance. Our insurance is purchased from a number of the world's leading providers, often in layered insurance or quota share arrangements. If any of our third party insurers fail, abruptly cancel our coverage or otherwise cannot satisfy their insurance requirements to us, then our overall risk exposure and operational expenses could be increased and our business operations could be interrupted.
If we do not have adequate indemnification for our nuclear services, it could adversely affect our business and financial condition.
We provide services to the U.S. Department of Energy and the nuclear energy industry in the on-going maintenance and modification of nuclear facilities as well as decontamination and decommissioning activities of nuclear plants. The Price-Anderson Act generally indemnifies parties performing services to nuclear power plants and Department of Energy contractors; however, not all activities we engage in on behalf of our clients are covered. Thus, if the Price-Anderson Act indemnification protections do not apply to our services, or if the exposure occurs outside of the United States in a region that does not have protections comparable to the Price-Anderson Act, our business and financial condition could be adversely affected by our client's refusal to contract with us, by our inability to obtain commercially reasonable insurance or third party indemnification, or by the potentially significant monetary damages we could incur.
Foreign currency risks could have an adverse impact on revenue, earnings and/or backlog.
Certain of our contracts subject us to foreign currency risk, particularly when project contract revenue is denominated in a currency different than the contract costs. In addition, our operational cash flows and cash balances, though predominately held in U.S. dollars, may consist of different currencies at various points in time in order to execute our project contracts globally and meet transactional requirements. We may attempt to minimize our exposure to foreign currency risk by obtaining contract provisions that protect us from foreign currency fluctuations and/or by implementing hedging strategies utilizing derivatives as hedging instruments. However, these actions may not always eliminate all foreign currency risk, and as a result, our profitability on certain projects could be affected.
Our monetary assets and liabilities denominated in nonfunctional currencies are subject to remeasurement. In addition, the U.S. dollar value of our backlog may from time to time increase or decrease significantly due to foreign currency volatility. We may also be exposed to limitations on our ability to reinvest earnings from operations in one country to fund our operations in other countries.
Our reported revenue and earnings of foreign subsidiaries could also be affected by foreign currency volatility. Revenue, cost and earnings of foreign subsidiaries with functional currencies other than the U.S. dollar are translated into U.S. dollars. If the U.S. dollar appreciates against a foreign subsidiary's non-U.S. dollar functional currency, we would report less revenue, cost and earnings in U.S. dollars than it would have had the U.S. dollar depreciated against the same foreign currency or if there had been no change in the exchange rate.


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The loss of one or a few clients could have an adverse effect on us.
A few clients, including the U.S. government, state governments and U.S. and state government agencies, have in the past, and may in the future, account for a significant portion of our revenues in any one year or over a period of several consecutive years, either directly or through participation in a joint venture that serves as a client. Although we have long-standing relationships with many of our significant clients, our clients may unilaterally reduce, fail to renew or terminate their contracts with us at any time. Most of our contracts have termination for convenience provisions in them. The loss of business from a significant client could have a material adverse effect on our business, financial position and results of operations.
Damage to our reputation could in turn cause damage to our business.
Maintaining a positive reputation is critical to attracting and maintaining clients and other business relationships. If we fail to address issues that may give rise to reputational risk, we could significantly harm our business. These issues may include, but are not limited to, any of the risk factors discussed in this Item 1A, including compliance with laws, project execution risk, cybersecurity and safety. If our reputation is harmed, we could suffer a number of adverse consequences, such as:
•reduced demand for our services;
•lack of investor confidence;
•less favorable credit rating;
•the inability to attract and retain qualified employees;
•a loss or reduction in scope of current project contracts and fewer contract awards;
•less favorable contract terms;
•increased need for financial assurances;
•increased litigation and costs; and
•heightened regulatory scrutiny.
These and other consequences resulting from damage to our reputation could have a material adverse effect on our business, financial condition or results of operations.
Our business may be negatively impacted if we are unable to adequately protect intellectual property rights.
Our success is dependent, in part, on our ability to differentiate our services through our technologies and know-how. This success includes the ability of companies in which we invest, such as NuScale, to protect their intellectual property rights. We utilize a combination of patents, copyrights, trade secrets, confidentiality agreements and other contractual arrangements to protect our interests. However, these methods only provide a limited amount of protection and may not adequately protect our interests. Our employees, contractors and joint venture partners are subject to confidentiality obligations, but this protection may be inadequate to deter or prevent misappropriation of our confidential information and/or infringement of our intellectual property rights. This can be especially true in certain foreign countries where intellectual property does not have equivalent protections as in the United States, or when our joint venture partner is a competitor who will gain access to our procedures and know-how while working with us in the performance of services.
Our clients require broad ownership rights in the work product and other materials we deliver. If we are not able to retain ownership of our pre-existing intellectual property and improvements thereto, it may affect our ability to provide similar services to other clients in the future, which ultimately, could have a material adverse effect on our operations.
Our competitors or others may independently develop technology substantially similar to our trade secret technology or we may be unsuccessful in preserving our intellectual property rights in the future. Our intellectual property rights could be invalidated, circumvented, challenged or infringed upon. Litigation to determine the scope of intellectual property rights, even if ultimately successful, could be costly and could divert management's attention.
In addition, our clients or other third parties may also provide us with their technology and intellectual property. There is a risk that we may not sufficiently protect our or their information from improper use or dissemination and, as a result, could be subject to claims and litigation and resulting liabilities, loss of contracts or other consequences that could have an adverse impact on our business, financial condition and results of operation.
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We also hold licenses from third parties that may be utilized in our business operations. If we are no longer able to license such technology on commercially reasonable terms or otherwise, our business and financial performance could be adversely affected. When we license our intellectual property to third parties, the scope of such license grant is limited to a particular plant or project. If such third party exceeds the scope of the license grant, and if we are unable to detect unauthorized use of our intellectual property or otherwise take appropriate steps to enforce our rights, our revenue and margins will be adversely impacted, and the value of our intellectual property portfolio may decline thereby adversely affecting our competitive advantage and ability to win future work.
Our results of operations could be adversely affected as a result of asset impairments.
Our results of operations and financial condition could be adversely affected by impairments to goodwill, investments, deferred tax assets or other intangible assets. Goodwill and other intangible assets that have indefinite useful lives are not amortized, but instead are tested at least annually for impairment. Any future impairments, including impairments of goodwill, investments, deferred tax assets or other intangible assets, could have a material adverse effect on our financial condition and results of operations.
In addition, if we determine that an other-than-temporary decline in the fair value exists for a company in which we have invested, we may have to write down that investment to its fair value and recognize the related write-down as an investment loss. For cases in which we are required under the equity method or the proportionate consolidation method of accounting to recognize a proportionate share of another company's income or loss, such income or loss may impact our earnings.
Risks Related to Financial Reporting
We identified material weaknesses in our ICFR in 2019, which were remediated in 2020. If we identify material weaknesses in the future or otherwise fail to maintain an effective system of internal controls, we may not be able to accurately and timely report our financial results.
In connection with our 2019 year-end assessment of ICFR, we determined that we did not have an effective ICFR at December 31, 2019. We took steps to improve our ICFR and determined that we have an effective ICFR at December 31, 2020.
If we identify amaterial weaknesses in the future or are unable to successfully remediate any future material weaknesses or other deficiencies in our ICFR, the accuracy and timing of our financial reporting may be adversely affected, we may be unable to maintain or regain compliance with applicable securities laws and New York Stock Exchange listing requirements and we may be subject to regulatory investigations and penalties.
Our prior failure to prepare and timely file our periodic reports with the SEC limits our access to the public markets to raise debt or equity capital and restricts our ability to issue equity securities.
We did not timely file our 2019 10-K or our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 or September 30, 2020 within the timeframe specified by the SEC. This limits our ability to utilize a shelf registration during 2021 to access the public markets to raise debt or equity capital, which could prevent us from pursuing transactions or implementing business strategies that we might otherwise believe are beneficial to our business. We are not eligible to use a registration statement on Form S-3 that would allow us to continuously incorporate by reference our SEC reports until December 2021. If we wish to pursue a public offering ahead of that date, we would be required to file a registration statement on Form S-1 and have it reviewed and declared effective by the SEC. Doing so could take significantly longer than using a shelf registration statement on Form S-3, increase our transaction costs and adversely impact our ability to raise capital or complete acquisitions of other companies in a timely manner.
We restated certain of our previously issued financial statements during 2020, which resulted in unanticipated costs and may affect investor confidence and raise reputational issues.
As disclosed in our 2019 10-K, we restated our financial statements and related disclosures for the years ended December 31, 2018, 2017 and 2016 and for each of the interim quarterly periods in 2018 and 2019, following the identification of misstatements as a result of an internal review. The restatement also included other immaterial adjustments to historical periods, including items previously identified and corrected in earlier periods and for other non-project items identified outside of the internal review. As a result, we incurred previously unanticipated costs for accounting and legal fees in connection with or related to the restatement, and have become subject to a number of additional risks and uncertainties, which may affect investor confidence in the accuracy of our financial disclosures and may raise reputational issues for our business.

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Risks Related to Indebtedness
Adverse credit and financial market conditions could impair our, our clients' and our partners' borrowing capacity, which could negatively affect our business operations, profits and growth objectives.
Our ability to generate cash is important for the funding of our operations, investing in joint ventures, the servicing of our indebtedness, paying dividends to stockholders and making acquisitions. To the extent that existing cash balances and cash flow from operations, together with borrowing capacity under our credit facilities, are insufficient to make investments or acquisitions or provide needed working capital, we may require additional financing from other sources. Our ability to obtain such additional financing will depend upon prevailing capital market conditions, including those arising due to events occurring in our industry, as well as conditions in our business and our operating results; and those factors may affect our efforts to negotiate terms that are acceptable to us. Furthermore, if global economic, industry, political or other market conditions adversely affect the financial institutions that provide credit to us, it is possible that our ability to establish or draw upon our credit facilities may be impacted. In addition, a downgrade in our credit rating could increase the cost of our borrowings or their refinancing, limit access to sources of financing or lead to other adverse consequences. If adequate funds are not available, or are not available on acceptable terms, we may not be able to make future investments, take advantage of acquisitions or other opportunities, or respond to competitive challenges.
In addition, adverse credit and financial market conditions also adversely affect our clients' and our partners' borrowing capacity, which support the continuation and expansion of projects worldwide, and could result in contract cancellations or suspensions, project award and execution delays, payment delays or defaults by our clients. These disruptions could materially impact our backlog and profits. If we extend a significant portion of credit to our clients or projects in a specific geographic region or industry, we may experience higher levels of collection risk or non-payment if those clients are impacted by factors specific to their geographic industry or region.
Our indebtedness could lead to adverse consequences or adversely affect our financial position and prevent us from fulfilling our obligations under such indebtedness, and any refinancing of this debt could be at significantly higher interest rates.
Our indebtedness could have important consequences, including but not limited to:
•increasing our vulnerability to general adverse economic and industry conditions;
•requiring us to dedicate a substantial portion of our cash flow from operations to make debt service payments, thereby reducing the availability of cash flow to fund working capital, capital expenditures, acquisitions and investments and other general corporate purposes;
•limiting our flexibility in planning for, or reacting to, challenges and opportunities, and changes in our businesses and the markets in which we operate; and
•limiting our ability to obtain additional financing to fund our working capital, capital expenditures, acquisitions and debt service requirements and other financing needs.
Our ability to service our indebtedness will depend on our future operating performance and financial results, which may be subject to factors beyond our control, including general economic, financial and business conditions. If we do not have sufficient cash flow to service our indebtedness, we may need to refinance all or part of our existing indebtedness, borrow more money or sell securities or assets, some or all of which may not be available to us at acceptable terms or at all. In addition, we may need to incur additional indebtedness in the future in the ordinary course of business. Although the terms of our credit agreements and our bond indentures allow us to incur additional debt, there are limitations which may preclude us from incurring the amount of indebtedness we otherwise desire.
Our credit facilities, senior notes, other outstanding indebtedness and any additional indebtedness we incur in the future impose, or may impose, significant operating and financial restrictions on us. In addition, our credit facilities require us to maintain specified financial covenants. A breach of any of these covenants could result in a default. If a default occurs, the relevant lenders could elect to declare our indebtedness, together with accrued interest and other fees, to be immediately due and payable. If our operating performance declines, or if we are unable to comply with any covenant, such as our ability to timely prepare and file our periodic reports with the SEC, we have needed and may in the future need to obtain amendments to our credit agreements or waivers from the required creditors under our indebtedness instruments to avoid being in default. These factors could have a material adverse effect on our business, financial condition, results of operations or share price.
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We may be unable to win new contract awards if we cannot provide clients with letters of credit, bonds or other security or credit enhancements.
It is a common industry practice for clients to require us to provide surety bonds, letters of credit, bank guarantees or other forms of financial assurance as credit enhancements. Surety bonds, letters of credit or guarantees indemnify our clients if we fail to perform our obligations under our contracts. Historically, we have had strong surety bonding capacity due to our investment-grade credit rating, but, bonding is provided at the surety's sole discretion. In addition, because of the overall limitations in worldwide bonding capacity, we may find it difficult to access sufficient surety bonding capacity to meet our total surety bonding needs. With regard to letters of credit, while we have historically had adequate capacity under our existing credit facilities, any capacity that may be required in excess of our credit limits would be at our lenders' sole discretion and therefore is not certain. Failure to provide credit enhancements on terms required by a client may result in an inability to compete for or win a project.
Legal and Regulatory Risks
From time to time, we are involved in litigation and regulatory proceedings, potential liability claims and contract disputes that may have a material impact on our financial condition and results of operations.
We may be subject to a variety of legal or regulatory proceedings, liability claims or contract disputes in virtually every part of the world. We engage in engineering and construction activities for large facilities where design, construction or systems failures can result in substantial injury or damage. In addition, the nature of our business results in clients, subcontractors and suppliers occasionally presenting claims against us for recovery of costs they incurred in excess of what they expected to incur, or for which they believe they are not contractually liable. We have been and may in the future be named as a defendant in legal proceedings where parties may make a claim for damages or other remedies with respect to our projects or other matters, including shareholder litigation. During times of economic uncertainty, especially with regard to our commodity-based clients, claim frequencies and amounts tend to increase.
In proceedings where it is determined that we have liability, we may not be covered by insurance or, if covered, the dollar amount of these liabilities may exceed our policy limits. In addition, even where insurance is maintained for such exposure, the policies have deductibles resulting in our assuming exposure for a layer of coverage with respect to any such claims. Our professional liability coverage is on a "claims-made" basis covering only claims actually made during the policy period currently in effect. Any liability not covered by our insurance, in excess of our insurance limits or, if covered by insurance but subject to a high deductible, could result in a material loss for us, and materially reduce our cash available for operations.
As previously disclosed, we have received subpoenas from both the SEC and the U.S. Department of Justice ("DOJ") seeking documents and information related to projects for which we recorded charges in the second quarter of 2019 and certain project accounting, financial reporting and governance matters. We are coordinating our responses to the SEC and DOJ and cooperating in providing the requested documents and information. In addition to these investigations, a special committee of our Board of Directors independently conducted and completed a review of our prior period reporting and related control environment.
If the SEC or DOJ commences legal action as a result of the investigations, we could be required to pay significant penalties and become subject to injunctions, cease and desist orders, and other equitable remedies. We can provide no assurances as to the outcome or timing of any governmental or regulatory investigation.
In addition to these investigations, we have also had numerous securities class action lawsuits and stockholder derivative actions filed against us and certain of our current and former executive officers and directors.
We have incurred, and may continue to incur, significant expenses related to legal, accounting, and other professional services in connection with the SEC investigation, the DOJ investigation, lawsuits and related legal and regulatory matters. These expenses and the diversion of the attention of the management team that has occurred, and is expected to continue, has adversely affected, and could continue to adversely affect, our business, financial condition and results of operations.
As a result of matters associated with the SEC and DOJ investigations and various lawsuits, we are exposed to greater risks associated with litigation, regulatory proceedings, and government enforcement actions and additional subpoenas. Any future investigations or additional lawsuits may have a material adverse effect on our business, financial condition and results of operations.
In other legal or regulatory proceedings, liability claims or contract disputes, we may be covered by indemnification agreements that may at times be difficult to enforce. Even if enforceable, it may be difficult to recover under these agreements if the indemnitor does not have the ability to financially support the indemnity. Litigation and regulatory
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proceedings are subject to inherent uncertainties, and unfavorable rulings could occur, including for monetary damages. If we were to receive an unfavorable ruling in a matter, our business and results of operations could be materially harmed. Such proceedings can also be costly, time-consuming, disruptive to operations and distracting to management, regardless of the outcome. For further information on matters in dispute, please see Notes to Consolidated Financial Statements.
Our failure to recover adequately on claims against project owners, subcontractors or suppliers for payment or performance could have a material effect on our financial results.
We occasionally bring claims against clients for additional costs exceeding the contract price or for amounts not included in the original contract price. Similarly, we present change orders and claims to our subcontractors and suppliers. If we fail to properly provide notice or document the nature of change orders or claims, or are otherwise unsuccessful in negotiating a reasonable settlement, we could incur reduced profits, cost overruns and in some cases a loss on the project. These types of claims can often occur due to matters such as owner-caused delays or changes from the initial project scope, which result in additional cost, both direct and indirect. From time to time, these claims can be the subject of lengthy and costly proceedings, and it is often difficult to accurately predict when these claims will be fully resolved. When these types of events occur and while unresolved claims are pending, we may invest significant working capital in projects to cover cost overruns pending the resolution of the relevant claims. A failure to promptly recover on these types of claims could have a material adverse impact on our liquidity and financial results.
We could be adversely affected by violations of the U.S. Foreign Corrupt Practices Act and similar worldwide anti-bribery laws.
The U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act of 2010 and similar anti-bribery laws in other jurisdictions generally prohibit companies and their intermediaries from making improper payments to officials or others for the purpose of obtaining or retaining business. While our policies mandate compliance with these anti-bribery laws, we operate in many parts of the world that have experienced corruption to some degree and, in certain circumstances, strict compliance with anti-bribery laws may conflict with local customs and practices. We train our personnel concerning anti-bribery laws and issues, and we also inform our partners, subcontractors, suppliers, agents and others who work for us or on our behalf that they must comply with anti-bribery law requirements. We also have procedures and controls in place to monitor compliance. However, there is no assurance that our internal controls and procedures will always protect us from the possible reckless or criminal acts committed by our employees or agents. If we are found to be liable for anti-bribery law violations (either due to our own acts or our inadvertence, or due to the acts or inadvertence of others including our partners, agents, subcontractors or suppliers), we could suffer from criminal or civil penalties or other sanctions, including contract cancellations or debarment, and loss of reputation, any of which could have a material adverse effect on our business. Litigation or investigations relating to alleged or suspected violations of anti-bribery laws, even if ultimately such litigation or investigations demonstrate that we did not violate anti-bribery laws, could be costly and could divert management's attention away from other aspects of our business.
We could be adversely impacted if we fail to comply with domestic and international import and export laws.
Our global operations require importing and exporting goods and technology across international borders on a regular basis. Our policies mandate strict compliance with U.S. and foreign international trade laws. To the extent we export technical services, data and products outside of the United States, we are subject to U.S. and international laws and regulations governing international trade and exports including but not limited to the International Traffic in Arms Regulations, the Export Administration Regulations and trade sanctions against embargoed countries, which are administered by the Office of Foreign Assets Control within the Department of Treasury. From time to time, we identify certain inadvertent or potential export or related violations. These violations may include, for example, transfers without required governmental authorization. A failure to comply with these laws and regulations could result in civil or criminal sanctions, including the imposition of fines, the denial of export privileges, and suspension or debarment from participation in U.S. government contracts.
Employee, agent or partner misconduct or our overall failure to comply with laws or regulations could weaken our ability to win contracts, which could result in reduced revenues and profits.
Misconduct, fraud, non-compliance with applicable laws and regulations, or other improper activities by one of our employees, agents or partners could have a significant negative impact on our business and reputation. Such misconduct could include the failure to comply with anti-corruption, export control and environmental regulations; federal procurement regulations, regulations regarding the pricing of labor and other costs in government contracts and regulations regarding the protection of sensitive government information; regulations on lobbying or similar activities; regulations pertaining to the internal control over financial reporting; and various other applicable laws or regulations. The precautions we take to prevent and detect fraud, misconduct or failures to comply with applicable laws and regulations may not be effective, and we could face unknown risks or losses. Failure to comply with applicable laws or regulations or acts of fraud or misconduct could
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subject us to fines and penalties, loss of security clearance and suspension or debarment from contracting with government agencies, which could weaken our ability to win contracts and have a material adverse impact on our revenues and profits.
New or changing legal requirements, including those relating to climate change, could adversely affect our operating results.
Our business and results of operations could be affected by the passage of climate change, defense, environmental, infrastructure, trade and other laws, policies and regulations. For example, growing concerns about climate change may result in the imposition of additional environmental regulations. Legislation, international protocols or treaties, regulation or other restrictions on emissions could affect our clients, including those who (a) are involved in the exploration, production or refining of fossil fuels such as our energy and chemicals clients, (b) emit greenhouse gases through the combustion of fossil fuels, or (c) emit greenhouse gases through the mining, manufacture, utilization or production of materials or goods. Such legislation or restrictions could increase the costs of projects for us and our clients or, in some cases, prevent a project from going forward, thereby potentially reducing the need for our services, which could in turn have a material adverse effect on our operations and financial condition. However, legislation and regulation regarding climate change could also increase the pace of development of carbon capture and storage projects, alternative transportation, alternative energy facilities, such as wind farms or nuclear reactors, or incentivize increased implementation of clean fuel projects, which could positively impact the demand for our services. As another example, the implementation of trade barriers, countervailing duties, or border taxes, or the addition, relaxation or repeal of laws, policies and regulations regarding the industries and sectors in which we work could result in a decline in demand for our services, or may make the manner in which we perform our services, especially from outside the United States, less cost efficient. Furthermore, changes to existing trade agreements may impact our business operations. We cannot predict when or whether any of these various legislative and regulatory proposals may become law or what their effect will be on us and our clients.
Past and future environmental, safety and health regulations could impose significant additional costs on us that reduce our profits.
We are subject to numerous environmental laws and health and safety regulations. Our projects can involve the handling of hazardous and other highly regulated materials, including nuclear and other radioactive materials, which, if improperly handled or disposed of, could subject us to civil and criminal liabilities. It is impossible to reliably predict the full nature and effect of judicial, legislative or regulatory developments relating to health and safety regulations and environmental protection regulations applicable to our operations. The applicable regulations, as well as the length of time available to comply with those regulations, continue to develop and change. The cost of complying with rulings and regulations, satisfying any environmental remediation requirements for which we are found responsible, or satisfying claims or judgments alleging personal injury, property damage or natural resource damages as a result of exposure to, or contamination by, hazardous materials, including as a result of commodities such as lead or asbestos-related products, could be substantial, may not be covered by insurance, could reduce our profits, and therefore, could materially impact our future operations.
Our company, along with our investment in NuScale, is subject to a number of regulations such as those from the U.S. Nuclear Regulatory Commission and non-U.S. regulatory bodies, such as the International Atomic Energy Commission and the European Union, which can have a substantial effect on our nuclear operations and investments. Delays in receiving necessary approvals, permits or licenses, the failure to maintain sufficient compliance programs, and other problems encountered during construction (including changes to such regulatory requirements) could significantly increase our costs or have an adverse effect on our results of operations, our return on investments and our financial position.
A substantial portion of our business is generated either directly or indirectly as a result of federal, state, local and foreign laws and regulations related to environmental matters. A reduction in the number or scope of these laws or regulations, or changes in government policies regarding the funding, implementation or enforcement of such laws and regulations, could significantly reduce the size of one of our markets and limit our opportunities for growth or reduce our revenue below current levels.
Risks Related to Mergers & Acquisitions and Strategic Plans
We cannot assure the successful implementation of our strategic and operational initiatives.
We have announced a number of strategic and operational initiatives designed to optimize costs and improve operational efficiency, including plans to divest our AMECO and Stork businesses, monetize surplus real estate and non-core investments, and rationalize resources and overhead across various geographies. Our ability to successfully execute these initiatives is subject to various risks and uncertainties, including regulatory intervention, which may negatively impact the realization of expected benefits. Our failure to realize the anticipated benefits, which may be due to our inability to execute,
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competition, economic conditions, and other risks described herein, could have a material adverse effect on our business, financial condition, and results of operations.
Any acquisitions, dispositions or other investments are subject to various risks or uncertainties and may not be completed in accordance with the expected plans or anticipated time frame, or at all, and will involve significant time and expense, which could disrupt or adversely affect our business.
We have made and expect to continue to pursue selective acquisitions or dispositions of businesses, or investments in strategic business opportunities. We may be unable to locate suitable acquisitions or investments, or we may be unable to consummate any such transactions on terms and conditions acceptable to us. Acquisitions may bring us into businesses we have not previously conducted or jurisdictions where we have had little to no prior operations experience and thus expose us to additional business risks that are different from those we have traditionally experienced. We also may encounter difficulties identifying all significant risks during our due diligence activities or integrating acquisitions and successfully managing or achieving the growth we expect to experience from these acquisitions. We may invest in companies or businesses that fail, causing a loss of all or part of our investment.
Divesting businesses involves risks and uncertainties, such as the difficulty separating assets related to such businesses from the businesses we retain, employee distraction, the need to obtain regulatory approvals and other third-party consents, which potentially disrupts customer and vendor relationships, and the fact that we may be subject to additional tax obligations or loss of certain tax benefits. Such actions also involve significant costs and require time and attention of our management, which may divert attention from other business operations. Because of these challenges, as well as market conditions or other factors, anticipated divestitures may take longer or be costlier or generate fewer benefits than expected and may not be completed at all. If we are unable to complete the divestitures or to successfully transition divested businesses, our business and financial results could be negatively impacted. If we dispose of a business, we may not be able to successfully cause a buyer of a divested business to assume the liabilities of that business or, even if such liabilities are assumed, we may have difficulties enforcing our rights, contractual or otherwise, against the buyer. We may retain exposure on financial or performance guarantees and other contractual, employment, pension and severance obligations, and potential liabilities that may arise under law because of the disposition or the subsequent failure of an acquirer. As a result, performance by the divested businesses or other conditions outside of our control could have a material adverse effect on our results of operations. In addition, the divestiture of any business could negatively impact our profitability because of losses that may result from such a sale, the loss of revenues or a decrease in cash flows. Following a divestiture, we may also have less diversity in our business and in the markets we serve, as well as in our client base.
We may be unable to successfully integrate acquisitions or investments we make into our businesses or capture the anticipated benefits of these acquisitions and investments.
Whenever we make an acquisition or investment, we have and will continue to devote significant management attention and resources to integrating or aligning the business practices and operations of companies we acquire or invest in. Difficulties we may encounter in the integration/alignment process include:
•A delay in the integration or alignment of management teams, strategies, operations, products and services;
•Diversion of the attention of management as a result of the acquisition or investment;
•The consequences of a change in tax treatment, including the costs of integration/consolidation and compliance, and the possibility that the anticipated benefits of the acquisition/investment will not be realized;
•Differences in corporate culture and management philosophies;
•The ability to retain key personnel;
•The challenges of integrating or aligning complex systems, technology, networks and other assets into or to be compatible with ours in a way that minimizes any adverse effects on the business; and
•Potential unknown liabilities and unforeseen increased expenses or delays associated with the acquisition or investment, including the costs to integrate or consolidate beyond current estimates.
Any of these factors could negatively affect our ability to maintain business relationships or to achieve the anticipated benefits of the acquisition or investment.


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Risks Related to our Common Stock
In the event we issue additional equity securities, stockholders' ownership percentages would be diluted.
We may in the future issue additional equity securities to pay for potential acquisitions or to otherwise fund our corporate initiatives. If we do issue additional equity securities, the issuance may dilute our earnings per share and stockholders' percentage ownership.
Delaware law, our charter documents and our stockholder rights agreement may impede or discourage a takeover or change of control.
Fluor is a Delaware corporation. Various anti-takeover provisions under Delaware law impose impediments on the ability of others to acquire control of us, even if a change of control would be beneficial to our stockholders. In addition, certain provisions of our charters and bylaws may impede or discourage a takeover. For example:
•stockholders may not act by written consent;
•there are various restrictions on the ability of a stockholder to call a special meeting or to nominate a director for election; and
•our Board of Directors can authorize the issuance of preferred shares.
These types of provisions in our charters and bylaws could also make it more difficult for a third party to acquire control of us, even if the acquisition would be beneficial to our stockholders. Accordingly, stockholders may be limited in the ability to obtain a premium for their shares.
On March 24, 2020, our Board of Directors approved the adoption of a limited duration stockholder rights agreement and declared a dividend distribution of one preferred share purchase right on each outstanding share of our common stock. The rights are designed to ensure that all of our stockholders receive fair and equal treatment in the event of any proposed takeover of the company and to protect against abusive tactics to gain control of the company without paying all stockholders a premium for that control. The stockholder rights agreement would cause substantial dilution to any person or group that attempts to acquire us on terms not approved in advance by our Board of Directors and may have the effect of delaying, discouraging or preventing a change in control that might otherwise be beneficial to stockholders and might adversely affect the market price of our common stock.
Item 1B.    Unresolved Staff Comments
None.
Item 2.    Properties
Major Facilities
Our operations are conducted at both owned and leased properties in U.S. and foreign locations totaling approximately 7.9 million rentable square feet. Our executive offices are located at 6700 Las Colinas Boulevard, Irving, Texas. As our business frequently changes, the extent of utilization of the facilities by particular segments cannot be accurately stated. In addition, certain of our properties are leased or subleased to third party tenants. While we have operations worldwide, the following summarizes our more significant existing facilities:
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Location Interest
United States:
Greenville, South Carolina Owned
Houston (Sugar Land), Texas Leased
Irving, Texas (Corporate Headquarters) Owned
Southern California (Aliso Viejo and Long Beach) Leased
Canada:
Calgary, Alberta Owned
Vancouver, British Columbia Leased
Latin America:
Mexico City, Mexico Leased
Santiago, Chile Owned and Leased
Europe, Africa and Middle East:
Al Khobar, Saudi Arabia Owned
Amsterdam, the Netherlands Owned
Farnborough, England Owned and Leased
Gliwice, Poland Owned
Johannesburg, South Africa Leased
Utrecht, the Netherlands Leased
Asia/Asia Pacific:
Manila, the Philippines Owned and Leased
New Delhi, India Leased
Perth, Australia Leased
Shanghai, China Leased
In addition, we lease or own a number of individually insignificant offices, warehouses and equipment yards strategically located throughout the world. We also, through various joint ventures, own or lease fabrication yards in China and Mexico.
Item 3.    Legal Proceedings
As part of our normal business activities, we are party to a number of legal proceedings and other matters in various stages of development. We periodically assess our liabilities and contingencies for these matters based upon the latest information available.
For information on legal proceedings and matters in dispute, see the Consolidated Financial Statements in this report.
Item 4.    Mine Safety Disclosures
None.

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PART II
Item 5.    Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Our common stock is traded on the New York Stock Exchange under the symbol "FLR."
Any future cash dividends will depend upon our results of operations, financial condition, cash requirements, availability of surplus and such other factors as our Board of Directors may deem relevant. See "Item 1A. — Risk Factors."
At January 31, 2021, there were 140,759,346 shares outstanding and 4,244 stockholders of record of the company's common stock.
Issuer Purchases of Equity Securities
The following table provides information for the three months ended December 31, 2020 about purchases by the company of equity securities that have been registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Period Total Number
of Shares
Purchased 		Average Price
Paid per
Share 		Total Number of
Shares Purchased as
Part of Publicly
Announced Plans
or Programs
Maximum
Number of
Shares that May
Yet Be Purchased
Under Plans or
Programs(1)
October 1–October 31, 2020 —  $ —  —  10,513,093 
November 1–November 30, 2020 —  —  —  10,513,093 
December 1–December 31, 2020 —  —  —  10,513,093 
Total —  $ —  —   
_______________________________________________________________________________
(1)The share repurchase program, as amended, totals 34,000,000 shares. We may repurchase shares from time to time in open market transactions or privately negotiated transactions, including through pre-arranged trading programs, at our discretion, subject to market conditions and other factors and at such time and in amounts that we deem appropriate.
Item 7.    Management's Discussion and Analysis of Financial Condition and Results of Operations
The following discussion and analysis should be read in conjunction with our financial statements.
Results of Operations
In early 2020, we decided to retain our government business, which had been included in Disc Ops since the third quarter of 2019. As a result, the government business is no longer reported as a discontinued operation for any period presented. Our plan to sell the AMECO equipment business remains unchanged and it remains reported as a discontinued operation. We expect to complete the sale of the AMECO equipment business within the first half of 2021. The assets and liabilities of the AMECO business are classified as held for sale for all periods presented.
In light of our decision to retain our government business in 2020, we had the following six reportable segments:
◦Energy & Chemicals
◦Mining & Industrial
◦Infrastructure & Power
◦Government
◦Diversified Services
◦Other
Beginning in the first quarter of 2021, we will operate through three business segments: Energy Solutions, Urban Solutions and Mission Solutions. Energy Solutions will focus on energy transition, chemicals and traditional oil and gas opportunities. Urban Solutions will focus on mining, metals, advanced technologies, manufacturing, life sciences, infrastructure and our professional staffing services. Mission Solutions will focus on delivering solutions to federal agencies across the U.S. government and to select international opportunities. Additionally, we are initiating plans to sell Stork.
During 2019, we approved and initiated a broad restructuring plan designed to optimize costs, improve operational efficiency and support long-term sustainable growth. These restructuring activities included the rationalization of resources, investments, real estate and overhead across various geographies. We also met with a number of our clients, subcontractors
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and suppliers in an attempt to bring resolution to or get clarification on a variety of matters, including outstanding disputes and claims, pending change orders, schedule extensions, accounts receivable and other project close out items. The negotiations and agreements resulting from these meetings, as well as project developments during the second quarter, resulted in the recognition of significant charges across three segments, which are reflected in the results for 2019.
YEAR ENDED DECEMBER 31,
(in millions) 2020 2019 2018
Revenue
Energy & Chemicals $ 5,260.4  $ 5,823.7  $ 7,695.5 
Mining & Industrial 4,149.1  5,057.2  3,491.0 
Infrastructure & Power 1,595.5  1,370.4  1,668.0 
Government 2,922.8  2,969.3  3,678.5 
Diversified Services 1,630.9  2,040.1  2,257.2 
Other 109.8  56.6  60.8 
Total revenue $ 15,668.5  $ 17,317.3  $ 18,851.0 
Segment profit (loss) $ and margin %
Energy & Chemicals $ 163.7  3.1  % $ (95.0) (1.6) % $ 334.5  4.3  %
Mining & Industrial 122.4  2.9  % 158.5  3.1  % 94.3  2.7  %
Infrastructure & Power 13.7  0.9  % (243.9) (17.8) % (30.1) (1.8) %
Government 88.4  3.0  % 200.3  6.7  % 187.3  5.1  %
Diversified Services 14.2  0.9  % 14.6  0.7  % 68.7  3.0  %
Other (85.4) NM (220.1) NM (144.7) NM
Total segment profit (loss) $ and margin %(1)
$ 317.0  2.0  % $ (185.6) (1.1) % $ 510.0  2.7  %
Corporate G&A (240.7) (165.9) (121.2)
Impairment, restructuring and other exit costs (305.6) (532.6) — 
Gain (loss) on pension settlement 0.4  (137.9) (21.9)
Interest expense, net (46.4) (18.5) (40.6)
Earnings (loss) attributable to NCI from Cont Ops 68.3  (31.0) 59.4 
Earnings (loss) from Cont Ops before taxes (207.0) (1,071.5) 385.7 
Less: Income tax expense (benefit) 18.6  485.2  173.3 
Net earnings (loss) from Cont Ops $ (225.6) $ (1,556.7) $ 212.4 
New awards
Energy & Chemicals $ 2,013.2  $ 3,724.1  $ 10,641.4 
Mining & Industrial 2,799.1  1,861.9  8,696.1 
Infrastructure & Power 763.7  2,608.7  2,066.0 
Government 1,882.8  1,999.2  4,130.3 
Diversified Services 1,546.1  2,217.2  2,138.5 
Other —  152.2  — 
Total new awards $ 9,004.9  $ 12,563.3  $ 27,672.3 
New awards related to projects located outside of the U.S. 58% 51% 80%
(1)Total segment profit (loss) is a non-GAAP financial measure. We believe that total segment profit (loss) provides a meaningful perspective on our results as it is the aggregation of individual segment profit (loss) measures that we use to evaluate and manage our performance.
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(in millions) December 31, 2020 December 31, 2019
Backlog
Energy & Chemicals $ 11,020.5  $ 14,128.9 
Mining & Industrial 3,979.7  5,383.9 
Infrastructure & Power 5,244.3  6,079.4 
Government 2,780.3  3,556.1 
Diversified Services 2,425.4  2,541.6 
Other 119.2  244.0 
Total backlog $ 25,569.4  $ 31,933.9 
Backlog related to projects located outside of the U.S. 64% 67%
Backlog related to lump-sum projects 55% 52%
Our business has been adversely affected by the economic impacts of the outbreak of COVID-19 and the steep decline in oil prices that occurred in the early part of 2020. These events have created significant uncertainty and economic volatility and disruption, which have impacted and may continue to impact our business. We have experienced, and may continue to experience, reductions in demand for certain of our services and the delay or abandonment of ongoing or anticipated projects due to our clients’, suppliers’ and other third parties’ diminished financial condition or financial distress, as well as governmental budget constraints. Although we initially assessed our project estimates for COVID-19 during the first quarter of 2020, continued isolation of estimated COVID-19 effects became increasingly difficult to measure as 2020 progressed. Our estimates reflect our best assessment of project results inclusive of COVID-19 effects, which have been dynamic as our projects have seen changes in prevailing regulations as COVID cases crested and fell. These impacts may continue or worsen under prolonged stay-at-home, social distancing, travel restrictions and other similar orders or restrictions. Significant uncertainty still exists concerning the magnitude of the impact and duration of these events.
Because of the foregoing matters, we performed interim impairment testing of our goodwill, intangible assets and investments. We also evaluated the impact of these events on our reserves for credit risk and the fair value of our assets held for sale.
During 2020, we recognized the following significant charges:
• $298 million for impairments of goodwill, intangible assets, investments and other assets;
• $60 million for current expected credit losses associated with Energy & Chemicals clients;
• $146 million for impairments of assets held for sale (included in Disc Ops), of which $12 million related to goodwill; as well as
• Significant forecast revisions for project positions due to COVID-19 related schedule delays and associated cost growth.
During 2019, we recognized charges (related to cumulative catch up adjustments and loss projects) totaling $839 million in the Energy & Chemicals, Infrastructure & Power and Other segments. We also recognized $533 million related to impairments, restructuring and other exit costs. Additionally, we settled the remaining obligations associated with our defined benefit pension plan in the United Kingdom and recognized a loss on pension settlement of $138 million during 2019. During 2018, we recognized charges totaling $417 million related to projects in the Energy & Chemicals, Infrastructure & Power and Other segments. These project charges were partially offset by a gain of $125 million from the sale of a joint venture interest in the United Kingdom. Earnings in 2018 also benefitted from the adoption of ASC 606 which increased earnings before taxes by $132 million, primarily in the Energy & Chemicals segment.
During 2020, consolidated revenue declined primarily due to volume declines on Energy & Chemicals and Mining & Industrial projects, many of which were completed or nearing completion. The revenue decline in 2020 was further compounded by COVID-19 and the decline in oil prices. For example, a large mining project was suspended for six months due to COVID-19 and the volume of work in the Diversified Services segment significantly declined as turnaround work was delayed and maintenance scopes reduced. During 2019, consolidated revenue declined primarily due to volume declines on Energy & Chemicals projects as well as the completion of a power restoration project in Puerto Rico in 2018 and three large power projects in 2019.
During 2020, total segment profit increased due to the project charges in the Energy & Chemicals, Infrastructure & Power and Other segments recognized in 2019 (discussed above). The increase in total segment profit in 2020 was diminished
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by the impact of COVID-19 on numerous projects in 2020. During 2019, total segment profit significantly declined due to the 2019 project charges in the Energy & Chemicals, Infrastructure & Power and Other segments.
The effective tax rate from continuing operations was (9.0%), (45.3%) and 44.9% for 2020, 2019, and 2018, respectively. The 2020 effective tax rate was favorably impacted by a $125 million benefit due to the utilization of a 2019 net operating loss carryback as allowed under the CARES ACT enacted on March 27, 2020. This benefit was offset by a $149 million increase in valuation allowances to reduce deferred tax assets primarily in the U.S. and the Netherlands. The 2019 effective tax rate was unfavorably impacted by $731 million in charges related to establishing valuation allowances to reduce net deferred tax assets in the U.S., the U.K. and Australia. The 2018 effective tax rate was unfavorably impacted due to a $79 million increase in valuation allowances to reduce certain deferred tax assets in the U.S., the Netherlands and Belgium.
Our results reported by foreign subsidiaries with non-U.S. dollar functional currencies are affected by foreign currency volatility. When the U.S. dollar appreciates against the non-U.S. dollar functional currencies of these subsidiaries, our reported revenue, cost and earnings, after translation into U.S. dollars, are lower than what they would have been had the U.S. dollar depreciated against the same foreign currencies or if there had been no change in the exchange rates.
Our margins, in some cases, may be favorably or unfavorably impacted by a change in the amount of materials and customer-furnished materials, which are accounted for as pass-through costs.
The lack of broad based new awards could continue to put pressure on our future earnings streams, particularly in the Energy & Chemicals segment. Backlog included $1.8 billion for projects in a loss position as of December 31, 2020. The decline in backlog during 2020 and 2019 primarily resulted from new award activity being outpaced by work performed. During 2019, certain suspended contracts associated with our joint venture in Mexico were removed from backlog. Although backlog reflects business that is considered to be firm, cancellations, deferrals or scope adjustments may occur. Backlog is adjusted to reflect any known project cancellations, revisions to project scope and cost, foreign currency exchange fluctuations and project deferrals, as appropriate. Backlog differs from RUPO discussed elsewhere. Backlog includes the amount of revenue we expect to recognize under ongoing operations and maintenance contracts for the remainder of the current year renewal period plus up to three additional years if renewal is considered to be probable, while RUPO includes only the amount of revenue we expect to recognize under ongoing operations and maintenance contracts with definite terms and substantive termination provisions.
Impairment, Restructuring and Other Exit Costs
During 2019, we initiated a restructuring plan designed to optimize costs and improve operational efficiency. These efforts primarily relate to the rationalization of resources, investments, real estate and overhead across various geographies, as well as the liquidation of certain components of the AMECO business that are being excluded from sale. Our planned restructuring activities were substantially completed by the end of 2020. Restructuring costs totaled $8 million and $240 million during 2020 and 2019, respectively.
Information about our restructuring, which we believe is complete as of December 31, 2020, follows:
(in millions) Costs Incurred in 2020 Costs Incurred in
2019
Restructuring and other exit costs:
Severance $ 6.6  $ 63.9 
Asset impairments 0.4  90.4 
Entity liquidation costs (including the recognition of cumulative translation adjustments) —  83.7 
Other exit costs 1.0  2.0 
Total restructuring and other exit costs $ 8.0  $ 240.0 
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Impairment expense is summarized as follows:
Year Ended December 31,
(in thousands) 2020 2019
Impairment expense:
Goodwill associated with the Diversified Services reporting unit $ 168,568  $ 2,125 
Intangible customer relationships associated with Stork 26,671  33,657 
Equity method investments in the Energy & Chemicals segment 86,096  256,769 
Information technology assets 16,269  — 
Total impairment expense $ 297,604  $ 292,551 
In the first quarter of 2021, we announced a plan to sell Stork. Beginning in the first quarter of 2021, we expect Stork will be reported as a discontinued operation and the assets and liabilities of Stork will be classified as held for sale. Once classified as available for sale, Stork's assets will be subjected to a quarterly recoverability analysis.
Segment Operations
We provide professional services in the fields of engineering, procurement, construction, fabrication and modularization, operations, maintenance and asset integrity, as well as project management services, on a global basis and serve a diverse set of industries worldwide. We consider charges to include effects that negatively impact a project's gross margin, including negative adjustments to revenue and recognition of project losses.
Energy & Chemicals
Revenue in 2020 decreased compared to 2019 due to significant declines in the volume of execution activities for numerous upstream, downstream and chemicals projects nearing completion, partially offset by increased execution activity for an LNG project in Canada. Revenue in 2019 decreased compared to 2018 due to a significant decline in the volume of customer-furnished materials and project execution activities, combined with the impact of a lower volume of broad based new awards. The revenue decline in 2019 was also partially offset by increased execution activity for the LNG project.
Segment profit significantly increased during 2020 despite the adverse impacts of the recognition of reserves totaling $60 million for expected credit losses associated with certain joint venture clients, as well as margin diminution on a percentage-of-completion basis resulting from project positions taken with respect to COVID-19 related schedule delays and associated cost growth. The increase in segment profit during 2020 is primarily the result of charges taken during 2019, discussed below. Excluding these items, segment profit declined in 2020 due to the reduced execution activity of the upstream, downstream and chemicals projects discussed above, partially offset by the increase in activity for the LNG project and a decrease in overhead.
Segment profit in 2019 significantly decreased compared to 2018 as a result of charges taken during 2019 including $260 million for cost growth on an offshore project, $87 million for cost growth on two downstream projects and scope reductions on a large upstream project, $26 million for the write-off of pre-contract costs, $26 million on embedded foreign currency derivatives and $31 million from the resolution of close-out matters. Segment profit in 2018 was adversely impacted by charges of $133 million for cost growth on a completed, downstream project and $40 million for cost growth on the aforementioned offshore project.
The changes in segment profit margin in 2020 and 2019 were primarily attributable to the same factors that affected revenue and segment profit. Segment profit margin in 2020 was also adversely impacted by a shift from higher margin work in 2019 to lower margin work in 2020 in certain geographies.
No significant awards were booked in 2020 due to the impact of COVID-19 and declining oil prices on our customers' capital spend. New awards in 2019 included a downstream project in the United Kingdom as well as chemicals projects in China, India and on the U.S. gulf coast. New awards in 2018 included an LNG export facility in Canada as well as an engineering and procurement contract for a refinery in Texas.
The decline in backlog during 2020 resulted from the decline in new award activity and the de-recognition of a suspended downstream project. The decrease in backlog during 2019 resulted primarily from new award activity being outpaced by work performed as well as the removal of certain contracts associated with our joint venture in Mexico that were suspended during 2019.
We expect our Energy & Chemicals segment to benefit from opportunities in the chemicals and non-traditional oil and gas markets.
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Mining & Industrial
Revenue decreased in 2020 compared to 2019 primarily due to a six month suspension during 2020 of a large mining project in South America due to COVID-19 and a decline in the volume of execution activities for a large life sciences project and two mining projects completed or nearing completion. These revenue declines were partially offset by increased execution activities on two advanced technologies projects as well as a mining project and a metals project, both in North America. Revenue increased in 2019 compared to 2018 primarily due to increased execution activities for several large mining projects as well as ramping up construction activity on the two advanced technologies projects.
Segment profit declined in 2020 compared to 2019 primarily due to a gain of $31 million recognized in 2019 resulting from a favorable resolution of a longstanding customer dispute on a mining project. Segment profit in 2020 was also adversely impacted by the decline in activity for the life sciences project and mining projects nearing completion as well as the mining project in South America that was impacted by COVID-19. The decrease in segment profit in 2020 was partially offset by a reduction in overhead expenses. Segment profit in 2019 increased compared to 2018 due to the increased volume of execution activities for the large mining projects and the two advanced technologies projects that drove the increase in revenue as well as the favorable resolution of the customer dispute. The decline in segment profit margin in 2020 and the increase in segment profit margin in 2019 was primarily the result of the favorable resolution of the customer dispute in 2019.
New awards in 2020 included a significant North American steel project as well as several front-end studies that we believe positions the segment well for follow-on EPC awards. New awards in 2019 included an advanced manufacturing project in the Netherlands. New awards in 2018 included a copper project in Peru, an iron ore replacement mine in Australia and a mine expansion project in Peru. The decrease in backlog during 2020 and 2019 primarily resulted from work performed outpacing new award activity.
We expect our mining business line to benefit from the growing global demand for copper and our advanced technologies and life sciences business line to benefit from the increasing demand for data storage facilities and biological facilities.
Infrastructure & Power
Revenue in 2020 increased compared to 2019 primarily driven by an increase in execution activities for several infrastructure projects, including a year-over-year increase on a rail project which was canceled in the third quarter of 2020. The increase in revenue during 2020 was partially offset by a decrease in execution activities for several infrastructure projects nearing completion. Revenue in 2019 decreased compared to 2018 primarily due to the substantial completion of the three large power projects during 2019. This decline was partially offset by increased project execution activities on several infrastructure projects. Revenue also reflects the adverse impact of various forecast revisions discussed below.
Segment profit in 2020 significantly improved compared to 2019 primarily due to forecast revisions on several power and infrastructure projects recognized in 2019 (discussed below). A positive settlement on a canceled rail project in 2020 was offset by charges for cost growth in the infrastructure legacy portfolio. Segment profit in 2019 significantly decreased compared to 2018 due to charges of $135 million for the settlement of client disputes and cost growth on certain close-out matters for the three power projects discussed above and $133 million resulting from late engineering changes, schedule-driven cost growth and negotiations with clients and subcontractors on pending change orders for several infrastructure projects. Segment profit in 2018 included $188 million in charges on one of the aforementioned power projects as a result of cost growth and a $125 million gain associated with the sale of a joint venture interest in the United Kingdom. The changes in segment profit margin in 2020 and 2019 were primarily attributable to the same factors impacting segment profit in those years. Lower margin contributions from certain infrastructure projects for which charges were recognized during 2020 and 2019 may continue to adversely impact near term segment profit margin. We expect approximately 35% of the segment's revenue in 2021 will be generated from zero margin projects as of December 31, 2020.
New awards in 2020 included a highway project in Texas. New awards in 2019 included a road project in Texas and a rail project in Chicago. New awards in 2018 included an international bridge project and the LAX Automated People Mover project.
The decrease in backlog during 2020 was primarily due to a decline in new award activity in part driven by more selectivity in pursuing projects as well as delayed procurements. The decrease in backlog during 2019 was primarily due to work performed and project cancellations outpacing new award activity. Backlog included $1.5 billion for projects in a loss position as of December 31, 2020.
We believe our infrastructure business is well positioned for select opportunities in the U.S. due to urbanization and an aging infrastructure system. These opportunities may be enhanced with the introduction of a federal infrastructure spending bill.
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Government
Revenue in 2020 decreased compared to 2019 primarily due to the completion of a nuclear decommissioning project in 2019 as well a decline in work performed for FEMA. The decrease in 2020 revenue was further driven by the recognition of service fee revenue in 2019 upon the favorable settlement of project claims on two cancelled nuclear power projects in the U.S. The decline in revenue in 2020 was partially offset by increased project execution activities at the Strategic Petroleum Reserve as well as our DOE sites. Revenue in 2019 decreased compared to 2018 substantially driven by the completion of a power restoration project in Puerto Rico in 2018 as well as a decrease in project execution activities for a logistics assistance program in Afghanistan, partially offset by an increase in execution activities at the Savannah River DOE site and the favorable settlement of the two nuclear power plant projects in 2019.
The decrease in segment profit in 2020 was substantially driven by the favorable settlement of the two nuclear power plant projects in 2019 as well as the completion of the nuclear decommissioning project in 2019 and the decline in FEMA work in 2020. Segment profit in 2020 was also adversely impacted by COVID-19, particularly as it relates to estimated fee recoveries on certain projects. The increase in segment profit in 2019 was due to the favorable settlement of the two nuclear power plant projects. The changes in segment profit margin in 2020 and 2019 were primarily attributable to the same factors that affected revenue and segment profit.
New awards in 2020, 2019 and 2018 included one-year extensions of the logistics assistance contract in Afghanistan and the Savannah River environmental management contract. New awards in 2018 also included a five-year extension of the Strategic Petroleum Reserve contract and a thirty-month extension at the Portsmouth Gaseous Diffusion Plant site.
The decline in backlog during 2020 and 2019 resulted from new award activity being outpaced by work performed. Backlog included $1.0 billion and $1.9 billion of unfunded government contracts as of December 31, 2020 and 2019, respectively.
Diversified Services
As discussed elsewhere, most of the operating results of our AMECO equipment business are included in Disc Ops. The retained portion of the AMECO operations have been or are in the process of being liquidated but do not meet the qualifications of Disc Ops. These retained operations remain in the Diversified Services segment.
Revenue in 2020 decreased compared to 2019 primarily due to the impact of COVID-19 and declining oil prices resulting in lower volumes in the Stork business and the staffing business as turnaround work is delayed and maintenance scopes reduced. Revenue declines in 2020 were further driven by reduced volume from the winding down of our AMECO operations in Mexico. Revenue in 2019 decreased compared to 2018 primarily due to lower volumes in the Stork business in Europe, the cancellation of a large operations and maintenance project in North America in 2018 and scope reductions on a maintenance project in Australia. The decline in 2019 revenue was further driven by scope reductions on a large power services project in the U.S. and lower volumes at the AMECO equipment business in Mexico. The revenue declines in 2019 were partially offset by higher contributions from the staffing business in North America and Europe.
Segment profit in 2020 remained flat compared to 2019. The lower volumes in the Stork business and the staffing business were offset by a reduction in expenses related to close out activities at our AMECO operations in Mexico as well as a reduction in overhead costs. Segment profit in 2019 decreased compared to 2018 primarily driven by the above mentioned reduced volumes in the operations and maintenance business, including higher margin specialty services, and the closure of the AMECO equipment business in Mexico. The decline in segment profit in 2019 was further driven by charges related to negotiations with clients and joint venture partners. The declines in segment profit margin in 2020 and 2019 were primarily due to the same factors affecting segment profit.
The decrease in backlog during 2020 was primarily due to the postponement of new maintenance work due to COVID-19 and the decline in oil prices. The increase in backlog during 2019 was primarily due to a large award for the power services business. Our equipment and staffing businesses do not report backlog or new awards.
Other
Other includes the operations of NuScale, as well as two lump-sum projects including a plant for which we serve as a subcontractor to a commercial client (the "Radford" project) and a weapons storage and maintenance facility (the "Warren" project). The Radford and Warren projects continue to project losses as of December 31, 2020.
Revenue in 2020 increased compared to 2019 due to increased execution activities for both the Radford and Warren projects.
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Segment loss in 2020 improved due to the recognition of significant charges on the Radford and Warren projects in 2019. Forecast revisions in 2019 resulted in charges of $59 million on the Warren project and $83 million on the Radford project for various engineering and cost growth associated with the facilities. Segment loss in 2018 of $56 million was driven by forecast revisions on the Radford project. Our forecast for both projects is based upon our assessment of the probable cost to finish the projects as well as our assessment of the recovery of unapproved change orders. The Radford project is substantially complete with systems turnover to the client expected in the first quarter of 2021.
NuScale expenses, net of qualified reimbursable expenses, included in the determination of segment loss, were $84 million, $66 million and $74 million during 2020, 2019 and 2018, respectively. The increase in NuScale costs during 2020 was due to an increase in research and development activities as NuScale received final design certification by the U.S. Nuclear Regulatory Commission in August of 2020. Capital contributions by NuScale's NCI holders of $9 million, $49 million and $2 million during 2020, 2019 and 2018, respectively, reduced the need for additional funding from Fluor.
Corporate and Other Matters
YEAR ENDED DECEMBER 31
(in millions) 2020 2019 2018
Corporate G&A
Compensation $ 121.7  $ 87.1  $ 115.3 
Foreign currency (gains) losses 46.8  26.5  (33.4)
Legal and accounting fees associated with the 2020 internal review 42.0  —  — 
Other 30.2  52.3  39.3 
Corporate G&A $ 240.7  $ 165.9  $ 121.2 
The increase in compensation expense in 2020 was primarily due to higher stock price driven compensation, as our stock price increased from the date of grant to the end of the year. The decrease in compensation expense in 2019 was primarily due to lower stock price and performance driven compensation. During 2020 and 2019, most major foreign currencies strengthened against the U.S. dollar resulting in foreign currency exchange losses. In 2018, most major foreign currencies weakened against the U.S. dollar resulting in foreign currency exchange gains. The decrease in other expense in 2020 was driven by the realization of our restructuring efforts and lower travel costs due to COVID-19.
The increase in net interest expense during 2020 was primarily attributable to a decrease in interest income driven by lower interest rates in 2020. The decrease in net interest expense during 2019 was primarily attributable to an increase in interest income from time deposits in 2019 as well as a payment made in 2018 for a "make-whole" premium associated with the redemption of the 2021 Notes.
Critical Accounting Policies and Estimates
Our discussion and analysis of our financial condition and results of operations is based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. Our significant accounting policies are described in the notes to our financial statements. The preparation of our financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. Estimates are based on information available through the date of the issuance of the financial statements and, accordingly, actual results in future periods could differ from these estimates. Significant judgments and estimates used in the preparation of our financial statements apply to the following critical accounting policies:
Revenue Recognition for Long-Term Contracts. We recognize our engineering and construction contract revenue over time as we provide services to satisfy our performance obligations. We generally use the cost-to-cost percentage-of-completion measure of progress as it best depicts how control transfers to our clients. The cost-to-cost approach measures progress towards completion based on the ratio of contract cost incurred to date compared to total estimated contract cost. Use of the cost-to-cost measure of progress requires us to prepare estimates of total expected revenue and cost to complete our projects.
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Due to the nature of our industry, there is significant complexity in our estimation of total expected revenue and cost, for which we must make significant judgments. Our contracts with our customers may contain award fees, incentive fees, liquidated damages or other provisions that can either increase or decrease the contract price to arrive at estimated revenue. These variable amounts generally are awarded upon achievement of certain performance metrics, program milestones or cost targets and can be based upon customer discretion. We estimate variable consideration at the most likely amount to which we expect to be entitled. We include estimated amounts in the transaction price to the extent it is probable we will realize that amount. Our estimates of variable consideration and our determination of its inclusion in project revenue for accounting purposes are based on an assessment of our anticipated performance and other information that may be available to us.
At a project level, we have specific practices and procedures to review our estimate of total revenue and cost. Each project team reviews the progress and execution of our performance obligations, which impact the project’s accounting outcome. As part of this process, the project team reviews information such as any outstanding key contract matters, progress towards completion and the related program schedule and identified risks and opportunities. The accuracy of our revenue and profit recognition in a given period depends on the accuracy of our project estimates, which can change from period to period for factors such as:
•Complexity in original design;
•Extent of changes from original design;
•Different site conditions than assumed in our bid;
•The productivity, availability and skill level of labor;
•Weather conditions when executing a project;
•The technical maturity of the technologies involved;
•Length of time to complete the project;
•Availability and cost of equipment and materials;
•Subcontractor and joint venture partner performance;
•Expected costs of warranties; and
•Our ability to recover for additional contract costs.
We recognize changes in contract estimates on a cumulative catch-up basis in the period in which the changes are identified. Such changes in contract estimates can result in the recognition of revenue in a current period for performance obligations which were satisfied or partially satisfied in prior periods. Changes in contract estimates may also result in the reversal of previously recognized revenue if the current estimate adversely differs from the previous estimate. If we estimate that a project will have costs in excess of revenue, we recognize the total loss in the period it is identified.
Variable Consideration. The nature of our contracts gives rise to several types of variable consideration, including claims, unpriced change orders, award and incentive fees, liquidated damages and penalties. We consider variable consideration in the development of our project forecasts so that our forecasted revenue reflects the amount of consideration we expect to be probable of recovering without a future significant reversal. We estimate the amount of revenue attributable to variable consideration using the expected value method (i.e., the sum of probability-weighted amounts) or the most likely amount method, whichever offers better prediction. Significant judgments are required in developing estimates for variable consideration.
Fair Value Measurements. We are often required to use fair value measurement techniques with inputs that require the use of estimates and involve significant judgment. These circumstances include:
•Goodwill impairment testing of reporting units when quantitative analysis is deemed necessary
•Impairment testing of intangible assets when impairment indicators are present
•Impairment testing of investments as part of other than temporary impairment assessments when impairment indicators are present
•Fair value assessments of businesses held for sale that are reported at fair value less cost to sell
•Purchase price allocations for acquired businesses
When performing quantitative fair value or impairment evaluations, we estimate the fair value of our assets by considering the results of either or both income-based and market-based valuation approaches. Under the income approach, we prepare a discounted cash flow valuation model using recent forecasts and compare the estimated fair value of each asset to its carrying value. Cash flow forecasts are discounted using the appropriate weighted-average cost of capital at the date of evaluation. The weighted-average cost of capital is comprised of the cost of equity and the cost of debt with a weighting for each that reflects our current capital structure. Preparation of long-term forecasts involve significant judgments involving consideration of our backlog, expected future awards, customer attrition, working capital assumptions, and general market trends and conditions. Significant changes in these forecasts or any valuation assumptions, such as the discount rate selected, could affect the estimated fair value of our assets and could result in impairment expenses. Under the market approach, we
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consider market information such as multiples of comparable publicly traded companies and/or completed sales transactions to develop or validate our fair value conclusions, when appropriate and available.
Due to the impact of COVID-19 and the decline in oil prices in 2020, we performed interim impairment testing of our goodwill, intangibles and certain other investments and recognized impairment expenses during the first quarter of 2020 of $169 million, $27 million and $86 million, respectively. All other factors being equal, a one hundred basis point change in the discount rates used in these valuations would change the fair value of these assets by $47 million, $2 million and $3 million, respectively.
During the third quarter of 2019, we performed quantitative testing of our goodwill, intangibles and other investments. The majority of our goodwill resides in our Diversified Services reporting unit. Based on the testing performed, the fair value of the Diversified Services reporting unit exceeded its carrying value, including goodwill, by 20%. All other factors being equal, a one hundred basis point increase in the discount rate used in the valuation would have resulted in its fair value exceeding its carrying value by 7%. During the third quarter of 2019, we recognized impairment charges of $257 million related to certain investments and $34 million related to customer relationship intangible assets. All other factors being equal, a one hundred basis point change in the discount rates used in these valuations would have affected these impairments by $20 million and $4 million, respectively.
Restructuring Accruals. We recognize and accrue restructuring related termination benefits when the recognition criteria under GAAP have been met, depending on the nature of the termination benefit. Recognition of termination benefits requires the use of estimates in determining the expected termination benefits payable, when they are probable of being realized and can be reasonably estimated. Our estimates consider the number of employees that we expect will be eligible to receive the benefit and the amount of benefit potentially payable to each employee based on either the terms of the plan or statutory entitlement.
Recent Accounting Pronouncements
Item is described more fully in the Notes to Financial Statements.
Litigation and Matters in Dispute Resolution
Item is described more fully in the Notes to Financial Statements.
LIQUIDITY AND FINANCIAL CONDITION
Our liquidity is provided by available cash and cash equivalents and marketable securities, cash generated from operations, capacity under our credit facility and, when necessary, access to the capital markets. We have both committed and uncommitted lines of credit available for revolving loans and letters of credit. We believe that for at least the next 12 months, cash generated from operations, along with our unused credit capacity and cash position, is sufficient to support operating requirements. However, we regularly review our sources and uses of liquidity and may pursue opportunities to increase our liquidity position.
In February 2021, we entered into an amended and restated $1.65 billion credit facility which matures in February 2023 and replaces the now terminated $1.7 billion and $1.8 billion Revolving Loan and Letter of Credit Facilities. The amended credit facility contains customary financial and restrictive covenants, including a debt-to-capitalization ratio that cannot exceed 0.65 to 1.00, a limitation on the aggregate amount of debt of the greater of $750 million or €750 million for our subsidiaries, and a minimum liquidity threshold, as defined in the amended credit facility, of $1.5 billion which may be reduced to $1.25 billion upon the repayment of debt. If the amended credit facility had been in place as of December 31, 2020, our financial covenants would have limited our further borrowings to approximately $934 million. If there are future losses, the amount of available credit capacity under our committed facility may be further reduced.
As of December 31, 2020, letters of credit totaling $418 million were outstanding under our predecessor lines of credit. There were no borrowings outstanding under these facilities as of December 31, 2020. These credit facilities also contained customary financial and restrictive covenants, including a debt-to-capitalization ratio that could not exceed 0.6 to 1.0.
Cash and cash equivalents combined with marketable securities were $2.2 billion as of December 31, 2020 and $2.0 billion as of December 31, 2019. Cash and cash equivalents are held in numerous accounts throughout the world to fund our global project execution activities. Non-U.S. cash and cash equivalents amounted to $984 million and $944 million as of December 31, 2020 and 2019, respectively. Non-U.S. cash and cash equivalents exclude deposits of U.S. legal entities that are either swept into overnight, offshore accounts or invested in offshore, short-term time deposits, to which there is unrestricted access.
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In evaluating our liquidity needs, we consider cash and cash equivalents held by our consolidated variable interest entities (joint ventures and partnerships). These amounts (which totaled $655 million and $393 million as of December 31, 2020 and 2019, respectively) were not necessarily readily available for general purposes. We also consider the extent to which client advances (which totaled $125 million and $69 million as of December 31, 2020 and 2019, respectively) are likely to be sustained or consumed over the near term for project execution activities and the cash flow requirements of our various foreign operations. In some cases, it may not be financially efficient to move cash and cash equivalents between countries due to statutory dividend limitations and/or adverse tax consequences. We did not consider any cash to be permanently reinvested outside the U.S. as of December 31, 2020 and 2019, other than unremitted earnings required to meet our working capital and long-term investment needs in non-U.S. foreign jurisdictions where we operate.
  Year Ended December 31,
(in thousands) 2020 2019 2018
OPERATING CASH FLOW $ 185,884  $ 219,018  $ 162,164 
INVESTING CASH FLOW
Proceeds from sales and maturities (purchases) of marketable securities (15,430) 207,374  57,591 
Capital expenditures (113,442) (180,842) (210,998)
Proceeds from sales of property, plant and equipment 62,692  65,977  81,038 
Proceeds from sales of businesses and investments 48,897  —  124,942 
Investments in partnerships and joint ventures (29,219) (52,305) (73,145)
Other 4,940  40,268  21,955 
Investing cash flow (41,562) 80,472  1,383 
FINANCING CASH FLOW
Repurchase of common stock —  —  (50,022)
Dividends paid (28,720) (118,073) (118,734)
Proceeds from issuance of Senior Notes —  —  598,722 
Repayment of 2021 Senior Notes —  —  (503,285)
Distributions paid to NCI (23,184) (33,674) (63,523)
Capital contributions by NCI 110,051  64,646  5,128 
Other (9,701) 9,802  (8,777)
Financing cash flow 48,446  (77,299) (140,491)
Effect of exchange rate changes on cash 8,814  10,262  (62,385)
Increase (decrease) in cash and cash equivalents 201,582  232,453  (39,329)
Cash and cash equivalents at beginning of year 1,997,199  1,764,746  1,804,075 
Cash and cash equivalents at end of year $ 2,198,781  $ 1,997,199  $ 1,764,746 
Cash paid during the year for:
Interest $ 65,641  $ 71,938  $ 66,514 
Income taxes (net of refunds) 65,188  204,080  (28,408)
Operating Activities
Cash flows from operating activities result primarily from our EPC activities and are affected by changes in working capital associated with such activities. Working capital levels vary from period to period and are primarily affected by our volume of work and the billing schedules on our projects. These levels are also impacted by the stage of completion and commercial terms of engineering and construction projects, as well as our execution of our projects compared to their budget. Working capital requirements also vary by project and the payments terms agreed to with our clients, vendors and subcontractors. Most contracts require payments as the projects progress. Additionally, certain projects receive advance payments from clients. A typical trend for our projects is to have higher cash balances during the initial phases of execution due to deposits paid to us which then diminish toward the end of the construction phase. As a result, our cash position is reduced as customer advances are utilized, unless they are replaced by advances on other projects. We maintain cash reserves and borrowing facilities to provide additional working capital in the event that a project’s net operating cash outflows exceed its available cash balances.
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During 2020, consolidated working capital decreased. Specific factors related to the change in working capital include:
•Decreases in accounts receivable which resulted from normal billing and collections for several projects in the Infrastructure & Power, Government and Diversified Services segments.
•Decreases in contract assets which resulted from normal project execution activities for several projects in the Energy & Chemicals, Mining & Industrial, and Diversified Services segments.
During 2019, working capital significantly decreased. Specific factors related to the change in working capital include:
•Decreases in accounts receivable which resulted primarily from normal billing and collections for several projects in the Mining & Industrial segment as well as the LOGCAP IV program in Afghanistan.
•Decreases in contract assets which resulted primarily from normal project execution activities for several projects in the Energy & Chemicals, Infrastructure & Power and Government segments.
Excluding the non-cash impact of adopting ASC 606, working capital increased during 2018. Specific factors related to the change in working capital include:
•Increases in contract assets which resulted primarily from normal project execution activities on a large mining project and several infrastructure projects, partially offset by decreases in contract assets on several Energy & Chemicals projects.
•A decrease in contract liabilities in the Energy & Chemicals segment, which resulted primarily from normal project execution activities on several large projects.
•An increase in accounts payable in the Mining & Industrial segment, which resulted from normal invoicing activities on a large mining project.
•A decrease in other current assets, driven primarily by the receipt of income tax refunds in 2018.
The decrease in operating cash flow in 2020 and the increase in operating cash flow in 2019 resulted primarily from changes in working capital balances.
During the fourth quarter of 2020, we entered into a settlement agreement with a client in connection with a dispute over client-imposed delays and cost overruns on a cancelled rail project in Maryland. We received an initial settlement payment of $116 million in December 2020 and we are contractually owed an additional $150 million to be paid no later than December 2021.
During 2020, we paid approximately $40 million in legal and accounting fees associated with the internal review that was completed in December 2020.
We contributed $130 million, $115 million and $150 million into our DC plans during 2020, 2019 and 2018, respectively, and $25 million, $15 million and $45 million into our DB plans during 2020, 2019 and 2018, respectively. We expect to contribute up to $12 million to our DB plans in 2021, which is expected to be in excess of the minimum funding required.
All periods included the operations of NuScale, which are primarily for research and development activities associated with the licensing and commercialization of small modular nuclear reactor technology. NuScale expenses included in the determination of segment profit were $84 million, $66 million and $74 million during 2020, 2019 and 2018, respectively. NuScale expenses for 2020, 2019 and 2018 were reported net of qualified reimbursable expenses of $71 million, $56 million and $62 million, respectively. Capital contributions by NuScale's NCI holders of $9 million, $49 million and $2 million during 2020, 2019 and 2018, respectively, reduced the need for additional funding from Fluor.
Investing Activities
We hold cash in bank deposits and marketable securities which are governed by our investment policy. This policy focuses on, in order of priority, the preservation of capital, maintenance of liquidity and maximization of yield. These investments may include money market funds, bank deposits placed with highly-rated financial institutions, repurchase agreements that are fully collateralized by U.S. Government-related securities, high-grade commercial paper and high quality short-term and medium-term fixed income securities.
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Capital expenditures are primarily related to construction equipment associated with equipment operations now included in Disc Ops, as well as expenditures for facilities and investments in information technology. Proceeds from the disposal of property, plant and equipment are primarily related to the disposal of construction equipment associated with the equipment business in Disc Ops.
During 2020, we sold substantially all of the assets of our AMECO equipment business in Jamaica as well as 100% of our interest in an equipment rental business in Europe. The operations of the AMECO business in Jamaica were included in Disc Ops through the date of sale. Also in 2020, we sold our interests in two infrastructure joint ventures in the Netherlands that are currently in the operations and maintenance phase of the contract and one infrastructure joint venture in the U.S. In 2018, we sold our interest in a joint venture in the United Kingdom.
Investments in unconsolidated partnerships and joint ventures in 2020 and 2019 included capital contributions to two infrastructure joint ventures in the United States. Investments in 2018 included capital contributions to an infrastructure joint venture in the United States as well as investments in COOEC Fluor. We completed our final funding commitment to COOEC Fluor of $26 million during 2021.
Financing Activities
We have a common stock repurchase program, authorized by the Board of Directors, to purchase shares in the open market or privately negotiated transactions at our discretion. In 2018, we repurchased 1,097,126 shares of common stock under our current and previously authorized stock repurchase programs. As of December 31, 2020, 10,513,093 shares could still be purchased under the existing stock repurchase program.
Quarterly cash dividends were typically paid during the month following the quarter in which they were declared.
Therefore, dividends declared in the fourth quarter of 2019 were paid in the first quarter of 2020. Quarterly cash dividends of
$0.21 per share were declared in 2018 and in the first, second and third quarters of 2019. Quarterly cash dividends
of $0.10 per share were declared in the fourth quarter of 2019. We suspended our dividend during April 2020. The
payment and level of future cash dividends is subject to the discretion of our Board of Directors.
In August 2018, we issued $600 million of 4.250% Senior Notes (the “2028 Notes”) due September 15, 2028 and received proceeds of $595 million, net of underwriting discounts. Interest on the 2028 Notes is payable semi-annually on March 15 and September 15 of each year, beginning on March 15, 2019.
In September 2018, we used a portion of the proceeds from the 2028 Notes to fully redeem our $500 million 3.375%
Senior Notes (the “2021 Notes”) due September 15, 2021. The redemption price of $503 million was equal to 100 percent of
the principal amount of the 2011 Notes plus a “make-whole” premium of $3 million.

Other borrowings represent short-term bank loans and other financing arrangements associated with Stork. During the second and third quarters of 2018, we issued commercial paper to meet our short-term liquidity needs. All of the outstanding commercial paper was repaid in October 2018.
Distributions paid to holders of NCI represent cash outflows to partners of consolidated partnerships or joint ventures created primarily for the execution of single contracts or projects. Distributions in 2020 and 2019 primarily related to a mining joint venture project in Chile. Distributions in 2018 primarily related to transportation joint venture projects in the United States. Capital contributions by NCI in 2020 related to three infrastructure joint ventures in the United States. Capital contributions by NCI in 2019 primarily related to initial investments from new partners in NuScale.
Effect of Exchange Rate Changes on Cash
During 2019, most major foreign currencies strengthened against the U.S. dollar resulting in unrealized translation gains of $101 million of which $10 million related to cash held by foreign subsidiaries. During 2018, most major foreign currencies weakened against the U.S. dollar resulting in unrealized translation losses of $117 million of which $62 million related to cash held by foreign subsidiaries. The cash held in foreign currencies will primarily be used for project-related expenditures in those currencies, and therefore our exposure to exchange gains and losses is generally mitigated.
Off-Balance Sheet Arrangements
Letters of Credit
As of December 31, 2020, letters of credit totaling $418 million were outstanding under committed lines of credit and letters of credit totaling $862 million were outstanding under uncommitted lines of credit. Letters of credit are provided in the ordinary course of business primarily to indemnify our clients if we fail to perform our obligations under our contracts. Surety bonds may be used as an alternative to letters of credit.
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Guarantees
In the ordinary course of business, we enter into various agreements providing performance assurances and guarantees to our clients. These agreements are entered into primarily to support project execution commitments. The performance guarantees have various expiration dates ranging from mechanical completion of the project to a period extending beyond contract completion. The maximum potential amount of future payments that we could be required to make under outstanding performance guarantees, which represents the remaining cost of work to be performed, was estimated to be $14 billion as of December 31, 2020. Amounts that may be required to be paid in excess of estimated cost to complete contracts in progress are not estimable. For cost reimbursable contracts, amounts that may become payable pursuant to guarantee provisions are normally recoverable from the client for work performed. For lump-sum contracts, the performance guarantee amount is the cost to complete the contracted work, less amounts remaining to be billed to the client under the contract. Remaining billable amounts could be greater or less than the cost to complete. In those cases where costs exceed the remaining amounts payable under the contract, we may have recourse to third parties, such as owners, co-venturers, subcontractors or vendors for claims. The performance guarantee obligation was not material as of December 31, 2020 and 2019.
Financial guarantees, made in the ordinary course of business in certain limited circumstances, are entered into with financial institutions and other credit grantors and generally obligate us to make payment in the event of a default by the borrower. These arrangements generally require the borrower to pledge collateral to support the fulfillment of the borrower’s obligation.
Inflation
Although inflation and cost trends affect our results, we mitigate these trends by seeking to fix our cost at or soon after the time of award on lump-sum or fixed-price contracts or to recover cost increases in cost reimbursable contracts.
Variable Interest Entities
We frequently form joint ventures or partnerships with others primarily for the execution of single contracts or projects. We assess our joint ventures and partnerships at inception to determine if any meet the qualifications of a VIE as defined in GAAP. If a joint venture or partnership is a VIE and we are the primary beneficiary, the joint venture or partnership is consolidated and our partners' interests are recognized as NCI. Additional discussion of our VIEs may be found in the Notes to the Consolidated Financial Statements.
Item 7A.    Quantitative and Qualitative Disclosures about Market Risk
Cash and marketable securities are deposited with major banks throughout the world. Such deposits are placed with high quality institutions and the amounts invested in any single institution are limited to the extent possible in order to minimize concentration of counterparty credit risk. Marketable securities may consist of time deposits, registered money market funds, U.S. agency securities, U.S. Treasury securities, commercial paper, non-U.S. government securities and corporate debt securities. We have not incurred any credit risk losses related to deposits in cash or investments in marketable securities.
Certain of our contracts are subject to foreign currency risk. We limit exposure to foreign currency fluctuations in most of our engineering and construction contracts through provisions that require client payments in currencies corresponding to the currency in which cost is incurred. As a result, we generally do not need to hedge foreign currency cash flows for contract work performed. However, in cases where revenue and expenses are not denominated in the same currency, we may hedge our exposure, if material and if an efficient market exists, as discussed below.
We utilize derivative instruments to mitigate certain financial exposures, including currency and oil price risk associated with engineering and construction contracts, currency risk associated with monetary assets and liabilities denominated in nonfunctional currencies and risk associated with interest rate volatility. As of December 31, 2020, we had total gross notional amounts of $977 million of foreign currency contracts (primarily related to the Canadian Dollar, Chinese Yuan, British Pound, Euro, Indian Rupee and Philippine Peso) and $28 million of commodity contracts. The foreign currency and commodity contracts are of varying duration, none of which extend beyond December 2024. Our historical gains and losses associated with foreign currency contracts have typically been immaterial, and have largely mitigated the exposures being hedged. We do not enter into derivative transactions for speculative purposes.
Our results reported by foreign subsidiaries with non-U.S. dollar functional currencies are also affected by foreign currency volatility. When the U.S. dollar appreciates against the non-U.S. dollar functional currencies of these subsidiaries, our reported revenue, cost and earnings, after translation into U.S. dollars, are lower than what they would have been had the U.S. dollar depreciated against the same foreign currencies or if there had been no change in the exchange rates.
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Our long-term debt obligations typically carry a fixed-rate coupon, and therefore, our exposure to interest rate risk is not material.
Item 8.    Financial Statements and Supplementary Data
The information required by this Item is submitted as a separate section of this Form 10-K as described in Item 15. 
Item 9.    Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A.    Controls and Procedures
Evaluation of Disclosure Controls and Procedures
As defined in Rule 13a-15 and 15d-15 of the Exchange Act, our management, with the participation of our CEO and CFO, is responsible for establishing and maintaining disclosure controls and procedures. These controls and procedures should be designed to provide reasonable assurance that information required to be disclosed by us in reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that the information required to be disclosed by us in reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including the CEO and CFO to allow timely decisions regarding required disclosure.
Based on their evaluation, our CEO and CFO have concluded that our disclosure controls and procedures were effective as of December 31, 2020.
Management's Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate ICFR that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP.
Our management, including our CEO and CFO, conducted an assessment of the effectiveness of our ICFR as of December 31, 2020 based upon the framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO 2013) and concluded that our ICFR was effective.

Ernst & Young LLP, our independent registered public accounting firm, has issued an attestation report on the effectiveness of our ICFR. Their report follows this management report.
Changes in Internal Control over Financial Reporting
As disclosed in Part II, Item 9A. Controls and Procedures in our 2019 10-K, we concluded that our disclosure controls and procedures were not effective as of December 31, 2019 due to the existence of material weakness in our ICFR. Material weakness describes a deficiency, or combination of deficiencies, in ICFR, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements would not be prevented or detected on a timely basis.
During 2020, management implemented several remediations to address the material weakness by:
•Taking personnel actions, including separations, for individuals involved in projects associated with the material weaknesses
•Establishing additional monitoring procedures to help ensure that our policies and procedures are consistently followed at the project level, including enhanced requirements for business line approval and supporting documentation
•Reinforcing existing policies, including those policies that are critical to the generation of accounting information, to provide further assurance that the financial statements are subject to additional project-level controls; and
•Conducting expanded training on ethical behavior and internal certification processes.

Except for the changes made in connection with our implementation of the remediation efforts discussed above, there have been no changes in our ICFR during the fourth quarter of 2020 that have materially affected, or are reasonably likely to materially affect, our ICFR.





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Report of Independent Registered Public Accounting Firm

To the Shareholders and the Board of Directors of Fluor Corporation

Opinion on Internal Control Over Financial Reporting

We have audited Fluor Corporation’s internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Fluor Corporation (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020, based on the COSO criteria.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets of Fluor Corporation as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements”) and our report dated February 26, 2021 expressed an unqualified opinion thereon.

Basis for Opinion

Fluor Corporation’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on Fluor Corporation’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to Fluor Corporation in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects.

Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

Definition and Limitations of Internal Control Over Financial Reporting

A company’s internal control over financial reporting is a process designed 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

/s/ Ernst & Young LLP

Dallas, Texas

February 26, 2021





48
Item 9B.    Other Information
None.
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PART III
Item 10.    Directors, Executive Officers and Corporate Governance
Directors, Executive Officers, Promoters and Control Persons
The information required by Paragraph (a), and Paragraphs (c) through (g) of Item 401 of Regulation S-K (except for information required by Paragraphs (d) — (f) of that Item to the extent the required information pertains to our executive officers) and Item 405 of Regulation S-K will be set forth in our definitive proxy statement to be filed with the SEC pursuant to Regulation 14A within 120 days after the close of our fiscal year (our "Proxy Statement") and is incorporated herein by reference. The information required by Paragraph (b) of Item 401 of Regulation S-K, as well as the information required by Paragraphs (d) — (f) of that Item to the extent the required information pertains to our executive officers, is set forth herein at Part I, Item 1 of this 2020 10-K under the heading "Information about our Executive Officers."
Code of Ethics
We have long maintained and enforced a Code of Business Conduct and Ethics that applies to our CEO, CFO and CAO. A copy of our Code of Business Conduct and Ethics, as amended, has been posted on the "Sustainability" — "Ethics and Compliance" portion of our website, www.fluor.com.
We have disclosed and intend to continue to disclose any changes or amendments to our code of ethics or waivers from our code of ethics applicable to our CEO, CFO and CAO by posting such changes or waivers to our website.
Corporate Governance
We have adopted corporate governance guidelines, which are available on our website at www.fluor.com under the "Sustainability" portion of our website under the heading "Corporate Governance Documents" filed under "Governance." Information regarding the Audit Committee is hereby incorporated by reference from the information that will be contained in our Proxy Statement.
Item 11.    Executive Compensation
Information required by this item will be included in our Proxy Statement, which information is incorporated herein by reference.
Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Equity Compensation Plan Information
The following table provides information as of December 31, 2020 with respect to the shares of common stock that may be issued under our equity compensation plans:
Plan Category (a)
Number of securities to be
issued upon exercise of
outstanding options,
warrants and rights 		(b)
Weighted average
exercise price of
outstanding options,
warrants and rights 		(c)
Number of securities available for
future issuance under equity
compensation plans (excluding
securities listed in column (a))
Equity compensation plans approved by stockholders(1)
9,434,449
$45.80(3)
9,179,797
Equity compensation plans not approved by stockholders(2)
427,420
$16.55(3)
—
Total 9,861,869

9,179,797
_______________________________________________________________________________
(1)Consists of (a) the Amended and Restated 2008 Executive Performance Incentive Plan, under which 3,631,290 shares are issuable upon exercise of outstanding options, and under which no shares remain for future issuance; (b) the 2017 Performance Incentive Plan, under which 1,845,282 shares are issuable upon exercise of outstanding options, 2,096,516 shares are issuable upon vesting of outstanding restricted stock units, 1,554,108 shares are issuable if specified performance target awards are met under outstanding performance-based award units, and under which no shares remain available for issuance; (c) the 2020 Performance Incentive Plan, under which 9,179,797 remain available for issuance; (d) 17,212, 23,177 and 8,708 vested restricted stock units under the 2008 Executive Performance Plan, 2017 Performance Incentive Plan and 2020 Performance Incentive Plan, respectively, that were deferred by non-associate directors participating in the 409A Director Deferred Compensation Program that are distributable in the form of shares;
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(e) 108,734 vested restricted stock units granted to non-associate directors under the 2017 Performance Incentive Plan that are subject to a post-vest holding period and for which shares have not been issued; and (f) 149,422 vested restricted stock units and performance-based award units deferred by executive officers under the 2008 Executive Performance Incentive Plan.
(2)Consists of inducement awards made to Mr. David E. Constable in connection with his appointment as CEO.
(3)Weighted-average exercise price of outstanding options only.
The additional information required by this item will be included in our Proxy Statement, which information is incorporated by reference.
Item 13.    Certain Relationships and Related Transactions, and Director Independence
Information required by this item will be included in our Proxy Statement, which information is incorporated herein by reference.
Item 14.    Principal Accountant Fees and Services
Information required by this item will be included in our Proxy Statement, which information is incorporated herein by reference.
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PART IV
Item 15.    Exhibits and Financial Statement Schedules
(a)Documents filed as part of this 2020 10-K:
1.Financial Statements:
Our consolidated financial statements at December 31, 2020 and 2019 and for each of the three years in the period ended December 31, 2020, together with the report of our independent registered public accounting firm on those consolidated financial statements are hereby filed as part of this 2020 10-K, beginning on page F-1.
2.Financial Statement Schedules:
No financial statement schedules are presented since the required information is not present or not present in amounts sufficient to require submission of the schedule, or because the information required is included in the consolidated financial statements and notes thereto.
3.Exhibits:
EXHIBIT INDEX
Exhibit Description
3.1
3.2
3.3
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
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Exhibit Description
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
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Exhibit Description
10.20
10.21
10.22
10.23
10.24
10.25
10.26
10.27
10.28
10.29
10.30
10.31
10.32
10.33
10.34
10.35
10.36
10.37
10.38
10.39
10.40
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Exhibit Description
10.41
10.42
10.43
10.44
10.45
10.46
10.47
10.48
21.1
23.1
31.1
31.2
32.1
32.2
101.INS Inline XBRL Instance Document.*
101.SCH Inline XBRL Taxonomy Extension Schema Document.*
101.CAL Inline XBRL Taxonomy Extension Calculation Linkbase Document.*
101.LAB Inline XBRL Taxonomy Extension Label Linkbase Document.*
101.PRE Inline XBRL Taxonomy Extension Presentation Linkbase Document.*
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Exhibit Description
101.DEF Inline XBRL Taxonomy Extension Definition Linkbase Document.*
104 The cover page from the Company's 2020 10-K for the year ended December 31, 2020, formatted in Inline XBRL (included in the Exhibit 101 attachments).*
_______________________________________________________________________________
*    Exhibit filed with this report.
**    Management contract or compensatory plan or arrangement.
Attached as Exhibit 101 to this report are the following documents formatted in XBRL (Extensible Business Reporting Language): (i) the Consolidated Statement of Operations for the years ended December 31, 2020, 2019 and 2018, (ii) the Consolidated Balance Sheet at December 31, 2020 and December 31, 2019, (iii) the Consolidated Statement of Cash Flows for the years ended December 31, 2020, 2019 and 2018 and (iv) the Consolidated Statement of Equity for the years ended December 31, 2020, 2019 and 2018.
Item 16.    Form 10-K Summary
None.

SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this 2020 10-K to be signed on its behalf by the undersigned, thereunto duly authorized.
FLUOR CORPORATION
By: /s/ JOSEPH L. BRENNAN
Joseph L. Brennan,
Chief Financial Officer
February 26, 2021
Pursuant to the requirements of the Securities Exchange Act of 1934, this 2020 10-K has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
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Signature Title Date
 
Principal Executive Officer and Director:
/s/ DAVID E. CONSTABLE
David E. Constable Chief Executive Officer February 26, 2021
Principal Financial Officer:
/s/ JOSEPH L. BRENNAN
Joseph L. Brennan Chief Financial Officer February 26, 2021
Principal Accounting Officer:
/s/ JOHN C. REGAN
John C. Regan Chief Accounting Officer February 26, 2021
Other Directors:
/s/ ALAN L. BOECKMANN
Alan L. Boeckmann Executive Chairman February 26, 2021
/s/ ALAN M. BENNETT
Alan M. Bennett Director February 26, 2021
/s/ ROSEMARY T. BERKERY
Rosemary T. Berkery Director February 26, 2021
/s/ H. PAULETT EBERHART
H. Paulett Eberhart Director February 26, 2021
/s/ PETER J. FLUOR
Peter J. Fluor Director February 26, 2021
/s/ JAMES T. HACKETT
James T. Hackett Director February 26, 2021
/s/ THOMAS C. LEPPERT
Thomas C. Leppert Director February 26, 2021
/s/ TERI P. MCCLURE
Teri P. McClure Director February 26, 2021
/s/ ARMANDO J. OLIVERA
Armando J. Olivera Director February 26, 2021
/s/ MATTHEW K. ROSE
Matthew K. Rose Director February 26, 2021

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FLUOR CORPORATION
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
TABLE OF CONTENTS PAGE
Report of Independent Registered Public Accounting Firm
F-2
Consolidated Statement of Operations
F-5
Consolidated Statement of Comprehensive Income (Loss)
F-6
Consolidated Balance Sheet
F-7
Consolidated Statement of Cash Flows
F-8
Consolidated Statement of Changes in Equity
F-9
Notes to Consolidated Financial Statements
F-10

F-1
Table of Contents
Report of Independent Registered Public Accounting Firm
To the Shareholders and the Board of Directors of Fluor Corporation
Opinion on the Financial Statements

We have audited the accompanying consolidated balance sheets of Fluor Corporation (the Company) as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income (loss), changes in equity and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the “consolidated financial statements“). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with U.S. generally accepted accounting principles.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) and our report dated February 26, 2021 expressed an unmodified opinion thereon.

Basis for Opinion

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

Critical Audit Matters

The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective or complex judgments. The communication of the critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.














F-2
Table of Contents
Estimation of the Fair Value of Goodwill and Intangibles
Description of the Matter
As more fully described in Note 6 to the consolidated financial statements, certain of the Company’s businesses were adversely affected by the economic impacts of the steep decline in oil prices and the outbreak of COVID-19. These events caused significant uncertainty, economic volatility and disruption that affected certain of the Company’s operations, and the Company’s impairment tests of its goodwill and intangible assets. As a result of the impairment tests, the Company recognized a $195 million impairment loss related to goodwill and certain intangible customer relationships within the Diversified Services reporting unit, which is the amount by which the carrying value exceeded the estimated fair value of these assets.

Auditing management’s assessment of impairment involved a high degree of subjectivity due to the significant estimation uncertainty related to assumptions used in estimating the fair value of the reporting units of goodwill and intangible assets. When estimating the fair value of the reporting units for purposes of testing goodwill for impairment, significant assumptions used in management’s assessments included revenue growth rates, expected cash outflows, terminal growth rates and discount rates. When estimating the fair value of intangible assets for purposes of testing for impairment, significant assumptions used in management’s assessments included revenue growth rates, expected cash outflows, royalty rates, attrition rate and discount rates. The aforementioned assumptions are affected by expectations about future market or economic conditions that materially impact the fair value of the reporting units as well as intangible assets.
How We Addressed the Matter in Our Audit
We obtained an understanding, evaluated the design, and tested the operating effectiveness of controls over the Company's processes to estimate the fair value of the Company’s reporting units of goodwill and intangible assets. This included controls over management's review of the significant assumptions underlying the fair value estimates.

Our testing of the Company's estimates of fair value included, among other procedures, evaluating the significant assumptions as discussed above. For example, we compared the significant assumptions to current industry and economic trends and historical performance, performed sensitivity analyses of the significant assumptions to evaluate the change in the fair value estimates that would result from changes in the assumptions and recalculated management's estimates. We also involved our valuation specialists to assist in our evaluation of key assumptions, which included terminal growth rates, royalty rates, attrition rate, and the discount rates used in the fair value estimates.

F-3
Table of Contents
Long-term revenue recognition on engineering and construction contracts
Description of the Matter
As described in Note 2 to the consolidated financial statements, the Company recognizes engineering and construction contract revenue over time, as performance obligations are satisfied, due to the continuous transfer of control to the customer, using the percentage-of-completion method of accounting, based primarily on contract cost incurred to date compared to total estimated contract cost. Revenue recognition under this method is judgmental, particularly on lump-sum contracts, as it requires the Company to prepare estimates of total contract revenue and total contract costs, including costs to complete in-process contracts.

Auditing the Company’s estimates of total contract revenue and costs used to recognize revenue on engineering and construction contracts involved significant auditor judgment, as it required the evaluation of subjective factors such as assumptions related to project schedule and completion, forecasted labor, material and subcontract costs and variable consideration estimates related to incentive fees, unpriced changes orders and contractual disputes and claims. These assumptions involved significant management judgment, which affects the measurement of revenue recognized by the Company.
How We Addressed the Matter in Our Audit
We obtained an understanding, evaluated the design, and tested the operating effectiveness of controls over the estimation process that affect revenue recognized on engineering and construction contracts. This included controls over management’s monitoring and review of project costs and variable consideration estimates, including the Company’s procedures to validate the completeness and accuracy of data used to determine the estimates.

To evaluate the Company’s contract estimates related to revenue recognized on engineering and construction contracts, we selected a sample of projects and, among other procedures, obtained and inspected the contract agreements, amendments and change orders to test the existence of customer arrangements and understand the scope and pricing of the related contracts; performed site-visits for certain contracts to observe progress; observed selected contract review meetings, inspected presentations prepared by management and interviewed contract team personnel to obtain an understanding of the status of operational performance and progress on the related contracts; evaluated the Company’s estimated revenue and costs to complete by obtaining and analyzing supporting documentation of management’s estimates of variable consideration and contract costs, including external letters from legal counsel supporting the Company’s legal basis related to certain contractual matters including contractual disputes; and compared contract profitability estimates in the current year to historical estimates and actual performance.
                                        

/s/ Ernst & Young LLP
We have served as the Company‘s auditor since 1973.
Dallas, Texas

February 26, 2021
F-4
Table of Contents
FLUOR CORPORATION
CONSOLIDATED STATEMENT OF OPERATIONS
  Year Ended December 31,
(in thousands, except per share amounts) 2020 2019 2018
Revenue $ 15,668,477  $ 17,317,284  $ 18,851,008 
Cost of revenue 15,283,226  17,533,864  18,281,628 
Other (income) and expenses
Corporate general and administrative expense 240,692  165,921  121,164 
Impairment, restructuring and other exit costs 305,590  532,600  — 
(Gain) loss on pension settlement (406) 137,898  21,900 
Interest expense 72,120  74,104  77,144 
Interest income (25,693) (55,608) (36,577)
Total cost and expenses 15,875,529  18,388,779  18,465,259 
Earnings (loss) from Cont Ops before taxes (207,052) (1,071,495) 385,749 
Income tax expense (benefit) 18,592  485,230  173,331 
Net earnings (loss) from Cont Ops (225,644) (1,556,725) 212,418 
Net earnings (loss) from Disc Ops (141,147) 3,603  20,435 
Net earnings (loss) (366,791) (1,553,122) 232,853 
Less: Net earnings (loss) attributable to NCI from Cont Ops 68,255  (30,958) 59,385 
Net earnings (loss) attributable to Fluor Corporation from Cont Ops (293,899) (1,525,767) 153,033 
Net earnings (loss) attributable to Fluor Corporation from Disc Ops (141,147) 3,603  20,435 
Net earnings (loss) attributable to Fluor Corporation $ (435,046) $ (1,522,164) $ 173,468 
Basic earnings (loss) per share attributable to Fluor Corporation
Net earnings (loss) from Cont Ops $ (2.09) $ (10.89) $ 1.09 
Net earnings (loss) from Disc Ops (1.01) 0.02  0.15 
Net earnings (loss) $ (3.10) $ (10.87) $ 1.24 
Diluted earnings (loss) per share attributable to Fluor Corporation
Net earnings (loss) from Cont Ops $ (2.09) $ (10.89) $ 1.08 
Net earnings (loss) from Disc Ops (1.01) 0.02  0.15 
Net earnings (loss) $ (3.10) $ (10.87) $ 1.23 

The accompanying notes are an integral part of these financial statements.
F-5
Table of Contents
FLUOR CORPORATION
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME (LOSS)
  Year Ended December 31,
(in thousands) 2020 2019 2018
Net earnings (loss) (366,791) (1,553,122) 232,853 
OCI, net of tax:
Foreign currency translation adjustment (17,127) 65,500  (100,561)
Ownership share of equity method investees' OCI (18,528) (11,784) 8,942 
Defined benefit plan adjustments (19,392) 105,452  (52,591)
Unrealized gain (loss) on hedges 18,897  3,140  274 
Unrealized gain (loss) on available-for-sale securities —  —  709 
Total OCI, net of tax (36,150) 162,308  (143,227)
Comprehensive income (loss) (402,941) (1,390,814) 89,626 
Less: Comprehensive income (loss) attributable to NCI 69,138  (32,310) 57,145 
Comprehensive income (loss) attributable to Fluor Corporation $ (472,079) $ (1,358,504) $ 32,481 

The accompanying notes are an integral part of these financial statements.


F-6
Table of Contents
FLUOR CORPORATION
CONSOLIDATED BALANCE SHEET
(in thousands, except share and per share amounts) December 31, 2020 December 31, 2019
ASSETS
Current assets
Cash and cash equivalents ($654,852 and $392,772 related to VIEs)
$ 2,198,781  $ 1,997,199 
Marketable securities ($66 related to VIEs in both periods)
23,345  7,262 
Accounts and notes receivable, net ($248,106 and $329,548 related to VIEs)
1,181,590  1,217,464 
Contract assets ($244,552 and $294,116 related to VIEs)
967,827  1,238,173 
Other current assets ($33,884 and $32,271 related to VIEs)
424,849  389,565 
Current assets held for sale 237,617  517,100 
Total current assets 5,034,009  5,366,763 
Noncurrent assets
Property, plant and equipment ($37,236 and $29,492 related to VIEs)
561,084  594,826 
Goodwill 349,258  508,415 
Investments 532,065  600,814 
Deferred taxes 77,915  62,688 
Deferred compensation trusts 350,427  341,235 
Other assets ($41,124 and $45,425 related to VIEs)
405,054  491,917 
Total noncurrent assets 2,275,803  2,599,895 
Total assets $ 7,309,812  $ 7,966,658 
LIABILITIES AND EQUITY
Current liabilities
Accounts payable ($335,902 and $501,525 related to VIEs)
$ 1,232,236  $ 1,546,840 
Short-term borrowings 25,415  38,728 
Contract liabilities ($262,812 and $232,160 related to VIEs)
1,141,415  1,157,788 
Accrued salaries, wages and benefits ($28,381 and $31,178 related to VIEs)
637,563  609,094 
Other accrued liabilities ($44,244 and $21,088 related to VIEs)
490,104  470,350 
Current liabilities related to assets held for sale 45,304  82,322 
Total current liabilities 3,572,037  3,905,122 
Long-term debt 1,710,033  1,651,739 
Deferred taxes 80,745  83,295 
Other noncurrent liabilities ($9,528 and $11,366 related to VIEs)
683,770  742,410 
Contingencies and commitments
Equity
Shareholders' equity
Preferred stock — authorized 20,000,000 shares ($0.01 par value), none issued
—  — 
Common stock — authorized 375,000,000 shares ($0.01 par value); issued and outstanding — 140,715,205 and 140,174,400 shares in 2020 and 2019, respectively
1,404  1,399 
Additional paid-in capital 195,940  165,314 
AOCI (416,906) (379,873)
Retained earnings 1,249,809  1,700,912 
Total shareholders' equity 1,030,247  1,487,752 
NCI 232,980  96,340 
Total equity 1,263,227  1,584,092 
Total liabilities and equity $ 7,309,812  $ 7,966,658 
The accompanying notes are an integral part of these financial statements.

F-7
Table of Contents
FLUOR CORPORATION
CONSOLIDATED STATEMENT OF CASH FLOWS
  Year Ended December 31,
(in thousands) 2020 2019 2018
OPERATING CASH FLOW
Net earnings (loss) $ (366,791) $ (1,553,122) $ 232,853 
Adjustments to reconcile net earnings (loss) to operating cash flow:
Impairment expense - Cont Ops 297,604  383,017  — 
Impairment expense - Disc Ops 145,700  —  — 
(Gain) loss on pension settlement (406) 137,898  21,900 
Write-off of cumulative translation loss —  83,665  — 
Depreciation 102,451  154,599  197,585 
Amortization of intangibles 3,123  15,882  19,071 
(Earnings) loss from equity method investments, net of distributions (3,881) 9,348  980 
(Gain) loss on sales of assets (510) 7,284  (147,074)
Amortization of stock-based awards 21,882  36,075  43,029 
(Gain) loss on deferred compensation trust (32,792) (55,820) 18,010 
(Gain) loss on deferred compensation obligation 34,039  54,490  (22,272)
Deferred taxes (20,285) 320,633  60,709 
Net retirement plan accrual (contributions) (20,770) (2,325) (38,372)
Changes in assets and liabilities 29,801  633,027  (227,732)
Other (3,281) (5,633) 3,477 
Operating cash flow 185,884  219,018  162,164 
INVESTING CASH FLOW
Purchases of marketable securities (35,078) (31,165) (483,513)
Proceeds from sales and maturities of marketable securities 19,648  238,539  541,104 
Capital expenditures (113,442) (180,842) (210,998)
Proceeds from sales of property, plant and equipment 62,692  65,977  81,038 
Proceeds from sales of other assets 48,897  —  124,942 
Investments in partnerships and joint ventures (29,219) (52,305) (73,145)
Return of capital from partnerships and joint ventures 529  24,065  22,284 
Proceeds from company owned life insurance 4,574  16,414  1,040 
Other (163) (211) (1,369)
Investing cash flow (41,562) 80,472  1,383 
FINANCING CASH FLOW
Repurchase of common stock —  —  (50,022)
Dividends paid (28,720) (118,073) (118,734)
Proceeds from issuance of 2028 Notes —  —  598,722 
Repayment of 2021 Notes —  —  (503,285)
Debt issuance costs —  —  (5,061)
Other borrowings 3,881  9,093  3,235 
Distributions paid to NCI (23,184) (33,674) (63,523)
Capital contributions by NCI 110,051  64,646  5,128 
Taxes paid on vested restricted stock (1,313) (3,572) (5,686)
Stock options exercised —  1,466  7,258 
Other (12,269) 2,815  (8,523)
Financing cash flow 48,446  (77,299) (140,491)
Effect of exchange rate changes on cash 8,814  10,262  (62,385)
Increase (decrease) in cash and cash equivalents 201,582  232,453  (39,329)
Cash and cash equivalents at beginning of year 1,997,199  1,764,746  1,804,075 
Cash and cash equivalents at end of year $ 2,198,781  $ 1,997,199  $ 1,764,746 
The accompanying notes are an integral part of these financial statements.
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FLUOR CORPORATION
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
(in thousands, except per share amounts) Common Stock Additional Paid-In Capital AOCI Retained
Earnings 		Total Shareholders' Equity NCI Total
Equity
Shares Amount
BALANCE AS OF DECEMBER 31, 2017 139,918  $ 1,399  $ 88,222  $ (402,543) $ 3,566,194  $ 3,253,272  $ 150,089  $ 3,403,361 
Net earnings —  —  —  —  173,468  173,468  59,385  232,853 
Cumulative adjustment for the adoption of ASC 606 —  —  —  —  (326,639) (326,639) (963) (327,602)
OCI —  —  —  (140,988) —  (140,988) (2,239) (143,227)
Dividends ($0.84 per share)
—  —  153  —  (118,869) (118,716) —  (118,716)
Distributions to NCI —  —  —  —  —  —  (63,523) (63,523)
Capital contributions by NCI —  —  —  —  —  —  5,128  5,128 
Other NCI transactions —  —  5,329  —  —  5,329  (1,749) 3,580 
Stock-based plan activity 833  8  38,413  —  —  38,421  —  38,421 
Repurchase of common stock (1,097) (11) (50,011) —  —  (50,022) —  (50,022)
BALANCE AS OF DECEMBER 31, 2018 139,654  $ 1,396  $ 82,106  $ (543,531) $ 3,294,154  $ 2,834,125  $ 146,128  $ 2,980,253 
Net loss —  —  —  —  (1,522,164) (1,522,164) (30,958) (1,553,122)
Cumulative adjustment for the adoption of ASC 842 —  —  —  —  20,544  20,544  —  20,544 
Cumulative adjustment for the adoption of ASC 606 for certain investments —  —  —  —  11,934  11,934  —  11,934 
OCI —  —  —  163,658  —  163,658  (1,350) 162,308 
Dividends ($0.73 per share)
—  —  304  —  (103,556) (103,252) —  (103,252)
Distributions to NCI —  —  —  —  —  —  (33,674) (33,674)
Capital contributions by NCI —  —  —  —  —  —  64,646  64,646 
Other NCI transactions —  —  48,997  —  —  48,997  (48,452) 545 
Stock-based plan activity 520  3  33,907  —  —  33,910  —  33,910 
BALANCE AS OF DECEMBER 31, 2019 140,174  $ 1,399  $ 165,314  $ (379,873) $ 1,700,912  $ 1,487,752  $ 96,340  $ 1,584,092 
Net earnings (loss) —  —  —  —  (435,046) (435,046) 68,255  (366,791)
Cumulative adjustment for the adoption of ASC 326 —  —  —  —  (1,977) (1,977) —  (1,977)
OCI —  —  —  (37,033) —  (37,033) 883  (36,150)
Dividends ($0.10 per share)
—  —  —  —  (14,120) (14,120) —  (14,120)
Distributions to NCI —  —  —  —  —  —  (23,184) (23,184)
Capital contributions by NCI —  —  —  —  —  —  110,051  110,051 
Other NCI transactions —  —  10,099  —  —  10,099  (19,365) (9,266)
Stock-based plan activity 541  5  20,527  —  40  20,572  —  20,572 
BALANCE AS OF DECEMBER 31, 2020 140,715  $ 1,404  $ 195,940  $ (416,906) $ 1,249,809  $ 1,030,247  $ 232,980  $ 1,263,227 

The accompanying notes are an integral part of these financial statements.


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FLUOR CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

1.    Description of Business
Fluor Corporation (“we”, “us”, “our” or “the company”) is a holding company that owns the stock of a number of subsidiaries, as well as interests in joint ventures. Acting through these entities, we are one of the largest professional services firms providing engineering, procurement, construction, fabrication and modularization, operations, maintenance and asset integrity, as well as project management services, on a global basis. We provide services to our clients in a diverse set of industries worldwide including oil and gas, chemicals and petrochemicals, mining and metals, infrastructure, life sciences, advanced manufacturing and advanced technologies. We are also a service provider to the U.S. federal government and governments abroad; and, we perform operations, maintenance and asset integrity activities globally for major industrial clients.
We had the following six reportable segments as of December 31, 2020:
•Energy & Chemicals
•Mining & Industrial
•Infrastructure & Power
•Government
•Diversified Services
•Other
The Energy & Chemicals segment focuses on opportunities in the upstream, midstream, downstream, chemical, petrochemical, offshore and onshore oil and gas production, LNG and pipeline markets. This segment has long served a broad spectrum of industries offering a full range of design, engineering, procurement, construction, fabrication and project management services.
The Mining & Industrial segment provides design, engineering, procurement, construction and project management services to the mining and metals, life sciences, advanced manufacturing and advanced technologies sectors.
The Infrastructure & Power segment provides design, engineering, procurement, construction and project management services to the transportation and power sectors.
The Government segment provides engineering and construction services, logistics and life-support, contingency operations support, management, mission operations, environmental remediation and decommissioning to the U.S. government and governments abroad.
The Diversified Services segment provides a wide array of asset maintenance, asset integrity and staffing services around the world. Most of the operating results of our AMECO equipment business previously included in Diversified Services are now included in discontinued operations. Certain operations of AMECO, primarily in Mexico, are in the process of being liquidated and did not meet the qualifications of discontinued operations. These retained operations will remain in the Diversified Services segment until their liquidation.
Other includes the operations of NuScale, as well as two lump-sum projects including a plant for which we serve as a subcontractor to a commercial client (the "Radford" project) and a weapons storage and maintenance facility (the "Warren" project). The Radford project is substantially complete with systems turnover to the client expected in the first quarter of 2021.
In the first quarter of 2020, we decided to retain our government business, which had previously been included in Disc Ops. As a result, the government business is no longer reported as a discontinued operation for any period presented. Our plan to sell the AMECO equipment business remains unchanged and it remains reported as a discontinued operation. We expect to complete the sale of the AMECO equipment business within the first half of 2021. The assets and liabilities of the AMECO business are classified as held for sale for all periods presented.
In the first quarter of 2021, we announced a plan to sell Stork, which we expect will be reported as a discontinued operation beginning with the first quarter of 2021.
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

2.    Significant Accounting Policies
Principles of Consolidation
The financial statements include the accounts of Fluor Corporation and its subsidiaries. All significant intercompany transactions of consolidated subsidiaries are eliminated. Certain amounts disclosed in 2019 and 2018 have been reclassified to conform to the 2020 presentation, which includes presenting the operations of the government business in Cont Ops. Management has evaluated all material events occurring subsequent to December 31, 2020 through the filing date of the 2020 10-K.
We frequently form joint ventures or partnerships with others primarily for the execution of single contracts or projects. If a joint venture or partnership is a VIE and we are the primary beneficiary, the joint venture or partnership is consolidated and our partners' interests are recognized as NCI. As is customary in our industry, for other construction partnerships and joint ventures, we generally recognize our proportionate share of revenue, cost and profit and use the one-line equity method for the investment. In other instances, the cost and equity methods of accounting are used, depending on our respective ownership interest and amount of influence on the entity, as well as other factors. At times, we also execute projects through collaborative arrangements for which we recognize our relative share of revenue and cost.
Use of Estimates
The preparation of financial statements in accordance with GAAP requires management to make estimates and assumptions that affect reported amounts. These estimates are based on information available through the date of the issuance of the financial statements. Therefore, actual results could differ from those estimates.
Foreign Currency Translation
Our reporting currency is the U.S. dollar. For our international subsidiaries, the functional currency is typically the currency of the primary economic environment in which each subsidiary operates. Translation gains and losses are recorded in OCI. Gains and losses from remeasuring foreign currency transactions into the functional currency are included in earnings.
Revenue Recognition
Engineering and construction contracts. We recognize engineering and construction contract revenue over time as we provide services to satisfy our performance obligations. We generally use the cost-to-cost percentage-of-completion measure of progress as it best depicts how control transfers to our clients. The cost-to-cost approach measures progress towards completion based on the ratio of contract cost incurred to date compared to total estimated contract cost. Engineering and construction contracts are generally accounted for as a single unit of account (a single performance obligation) and are not segmented between types of services on a single project. Cost of revenue includes an allocation of depreciation and amortization. Where applicable, customer-furnished materials, labor and equipment and subcontractor materials, labor and equipment, are included in revenue and cost of revenue when management believes that we are acting as a principal rather than as an agent (i.e., we integrate the materials, labor and equipment into the deliverables promised to the customer). Customer-furnished materials are only included in revenue and cost when the contract includes construction activity and we have visibility into the amount the customer is paying for the materials or there is a reasonable basis for estimating the amount. We recognize revenue, but not profit, on certain uninstalled materials that are not specifically produced, fabricated, or constructed for a project. Revenue on these uninstalled materials is recognized when the cost is incurred and control is transferred. Changes to total estimated contract cost or losses, if any, are recognized in the period in which they are determined as assessed at the contract level. Pre-contract costs are expensed as incurred unless they are expected to be recovered from the client. Project mobilization costs are generally charged to project costs as incurred when they are an integrated part of the performance obligation being transferred to the client. Customer payments on engineering and construction contracts are typically due within 30 to 45 days of billing, depending on the contract.
Service contracts. For the majority of our operations and maintenance contracts, revenue is recognized when services are performed and contractually billable. For all other service contracts, we recognize revenue over time using the cost-to-cost percentage-of-completion method. Service contracts that include multiple performance obligations are segmented between types of services. For contracts with multiple performance obligations, we allocate the transaction price to each performance obligation using an estimate of the stand-alone selling price of each distinct service in the contract. Revenue recognized on service contracts that has not been billed to clients is recorded as contract assets. Amounts billed to clients in excess of revenue recognized on service contracts to date are recorded as contract liabilities. Customer payments on service contracts are typically due within 30 to 90 days of billing, depending on the contract.
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Variable consideration. The nature of our contracts gives rise to several types of variable consideration, including claims, unpriced change orders, award and incentive fees, liquidated damages and penalties. We consider variable consideration in the development of our project forecasts so that our forecasted revenue reflects the amount of consideration we expect to be probable of recovering without a significant reversal. We estimate the amount of revenue to be recognized on variable consideration using the expected value method (i.e., the sum of probability-weighted amounts) or the most likely amount method, whichever offers better prediction.
Warranties. We generally provide limited duration warranties for work performed under our contracts. Historically, warranty claims have not resulted in material costs incurred, and any estimated costs for warranties are included in the individual project cost estimates for purposes of accounting for long-term contracts.

Practical Expedients. If we have a right to consideration from a customer in an amount that corresponds directly with the value of our performance completed to date (a service contract in which we bill a fixed amount for each hour of service provided), we recognize revenue in the amount to which we have a right to invoice for services performed. We do not adjust the contract price for the effects of a significant financing component where, at contract inception, the period between service provision and customer payment will be one year or less. We exclude from the measurement of the transaction price all taxes assessed by governmental authorities that are collected by us from our customers (use taxes, value added taxes, some excise taxes).

RUPO. RUPO represents a measure of the value of work to be performed on contracts awarded and in progress. Although RUPO reflects business that is considered to be firm, cancellations, deferrals or scope adjustments may occur. RUPO is adjusted to reflect any known project cancellations, revisions to project scope and cost, foreign currency exchange fluctuations and project deferrals, as appropriate. RUPO differs from backlog discussed elsewhere in the 2020 10-K. Backlog includes the amount of revenue we expect to recognize under ongoing operations and maintenance contracts for the remainder of the current year renewal period plus up to three additional years if renewal is considered to be probable, while RUPO includes only the amount of revenue we expect to recognize under ongoing operations and maintenance contracts with definite terms and substantive termination provisions.
Project Estimates
    Due to the nature of our industry, there is significant complexity in our estimation of total expected revenue and cost, for which we must make significant judgments. Our contracts with our customers may contain award fees, incentive fees, liquidated damages or other provisions that can either increase or decrease the contract price to arrive at estimated revenue. These variable amounts generally are earned upon achievement of certain performance metrics, program milestones or cost targets and can be based upon customer discretion. We estimate variable consideration at the most likely amount to which we expect to be entitled. We include estimated amounts in the transaction price to the extent it is probable we will realize that amount. Our estimates of variable consideration and our determination of its inclusion in project revenue for accounting purposes are based on an assessment of our anticipated performance and other information that may be available to us.

    At a project level, we have specific practices and procedures to review our estimate of total revenue and cost. Each project team reviews the progress and execution of our performance obligations, which impact the project’s accounting outcome. As part of this process, the project team reviews information such as any outstanding key contract matters, progress towards completion and the related program schedule and identified risks and opportunities. The accuracy of our revenue and profit recognition in a given period depends on the accuracy of our project estimates, which can change from period to period for factors such as:

•Complexity in original design;
•Extent of changes from original design;
•Different site conditions than assumed in our bid;
•The productivity, availability and skill level of labor;
•Weather conditions when executing a project;
•The technical maturity of the technologies involved;
•Length of time to complete the project;
•Availability and cost of equipment and materials;
•Subcontractor and joint venture partner performance;
•Expected costs of warranties; and
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

•Our ability to recover for additional contract costs.

    We recognize changes in contract estimates on a cumulative catch-up basis in the period in which the changes are identified. Such changes in contract estimates can result in the recognition of revenue in a current period for performance obligations which were satisfied or partially satisfied in prior periods. Changes in contract estimates may also result in the reversal of previously recognized revenue if the current estimate adversely differs from the previous estimate. If we estimate that a project will have costs in excess of revenue, we recognize the total loss in the period it is identified.
Contract Assets and Liabilities
    Contract assets represent revenue recognized in excess of amounts billed and include unbilled receivables (typically for cost reimbursable contracts) and contract work in progress (typically for fixed-price contracts). Unbilled receivables, which represent an unconditional right to payment subject only to the passage of time, are recognized as accounts receivable when they are billed under the terms of the contract. Advances that are payments on account of contract assets are deducted from contract assets. We anticipate that substantially all incurred cost associated with contract assets as of December 31, 2020 will be billed and collected within one year. Contract liabilities represent amounts billed to clients in excess of revenue recognized to date.
Segment Reporting
Management evaluates segment performance based on segment profit. We incur cost and expenses and hold certain assets at the corporate level which relate to our business as a whole. Certain of these amounts have been charged to our business segments by various methods, largely on the basis of usage. Total assets not allocated to segments and held in "Corporate and other" primarily include cash, marketable securities, income-tax related assets, pension assets, deferred compensation trust assets and corporate property, plant and equipment.
Segment profit is an earnings measure that we utilize to evaluate and manage our business performance. Segment profit is calculated as revenue less cost of revenue and earnings attributable to NCI.
Variable Interest Entities
We assess our partnerships and joint ventures at inception to determine if any meet the qualifications of a VIE. We consider a partnership or joint venture a VIE if it has any of the following characteristics:
(a) the total equity investment is not sufficient to permit the entity to finance its activities without additional subordinated financial support,
(b) characteristics of a controlling financial interest are missing (either the ability to make decisions through voting or other rights, the obligation to absorb the expected losses of the entity or the right to receive the expected residual returns of the entity), or
(c) the voting rights of the equity holders are not proportional to their obligations to absorb the expected losses of the entity and/or their rights to receive the expected residual returns of the entity, and substantially all of the entity's activities either involve or are conducted on behalf of an investor that has disproportionately few voting rights.

Upon the occurrence of certain events, we reassess our initial determination of whether the partnership or joint venture is a VIE. The majority of our partnerships and joint ventures qualify as VIEs because the total equity investment is typically nominal and not sufficient to permit the entity to finance its activities without additional subordinated financial support.

We also perform a qualitative assessment of each identified VIE to determine if we are its primary beneficiary. We conclude that we are the primary beneficiary and consolidate the VIE if we have both:

(a) the power to direct the economically significant activities of the entity and
(b) the obligation to absorb losses of, or the right to receive benefits from, the entity that could potentially be significant to the VIE.

We consider the contractual agreements that define the ownership structure, distribution of profits and losses, risks, responsibilities, indebtedness, voting rights and board representation of the respective parties in determining if we are the primary beneficiary. We also consider all parties that have direct or implicit variable interests when determining whether we
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

are the primary beneficiary. Management's assessment of whether we are the primary beneficiary of a VIE is continuously performed.
Cash and Cash Equivalents
Cash and cash equivalents include securities with maturities of three months or less at the date of purchase.
Marketable Securities
Marketable securities consist of time deposits placed with investment grade banks with original maturities greater than three months, which are typically held-to-maturity because we have the intent and ability to hold them until maturity. Held-to-maturity securities are carried at amortized cost. Our investments in debt securities are classified as available-for-sale because they may be sold prior to their maturity date. Available-for-sale securities are carried at fair value. The cost of securities sold is determined by using the specific identification method. Marketable securities are assessed at least annually for other-than-temporary impairment.
Research and Development
We have a controlling interest in NuScale, a research and development operation associated with the licensing and commercialization of small modular nuclear reactor technology. Since May 2014, NuScale has been receiving reimbursement from the DOE for certain qualified expenditures under cost-sharing award agreements that require NuScale to use the DOE funds to cover first-of-a-kind engineering costs associated with small modular reactor design development and certification. Costs incurred by NuScale are expensed as incurred, net of qualifying DOE reimbursements, and reported in "Cost of revenue". The U.S. Nuclear Regulatory Commission approved NuScale's design certification application in August 2020. Aside from NuScale, we generally do not engage in significant research and development activities.
Property, Plant and Equipment
Property, plant and equipment is recorded at cost. Leasehold improvements are amortized over the shorter of their economic lives or the lease terms. Depreciation is calculated using the straight-line method over the following ranges of estimated useful service lives, in years:
Estimated Useful Service Lives
Buildings
20 – 40
Building and leasehold improvements
6 – 20
Machinery and equipment
2 – 10
Furniture and fixtures
2 – 10
Goodwill and Intangible Assets
Goodwill and intangible assets with indefinite lives are not amortized but are subject to at least annual impairment tests during the fourth quarter. For impairment testing, goodwill is allocated to the applicable reporting units based on the current reporting structure. We compare the fair value of each reporting unit with its carrying amount. If the carrying amount of a reporting unit exceeds its fair value, an impairment loss is recognized. Intangible assets with indefinite lives are impaired if their carrying value exceeds their fair value. In-process research and development associated with our investment in NuScale is considered indefinite lived until the related technology is available for commercial use.
Interim impairment testing of goodwill and intangible assets is performed if indicators of potential impairment exist. Such indicators may include the results of operations of certain businesses and geographies and the performance of the company stock price.
Intangible assets with finite lives are amortized on a straight-line basis over their useful lives.
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Income Taxes
Deferred tax assets and liabilities are recognized for the expected future tax consequences of events that have been recognized in our financial statements or tax filings. We evaluate the realizability of our deferred tax assets and record a valuation allowance to reduce deferred tax assets to amounts that are more likely than not to be realized. The factors used to assess the likelihood of realization are our forecast of future taxable income and available tax planning strategies that could be implemented to realize such assets. Failure to achieve forecasted taxable income could affect the ultimate realization of deferred tax assets and could adversely impact our future effective tax rate.
Income tax positions are recognized when they meet a more-likely-than-not recognition threshold. Previously recognized tax positions that no longer meet the more-likely-than-not threshold are derecognized upon such determination. We recognize potential interest and penalties related to unrecognized tax positions as a component of income tax expense.
Judgment is required in determining the provision for income taxes as we consider our worldwide taxable earnings and the impact of the continuing audit process conducted by various tax authorities. The final outcome of any audits could differ materially from amounts recognized by the company.
We account for the GILTI effects in the period that is subject to such tax.
Derivatives and Hedging
We attempt to limit foreign currency exposure in most of our contracts by denominating contract revenue in the currencies in which cost is incurred. Certain financial exposure, which includes currency and commodity price risk associated with engineering and construction contracts, currency risk associated with monetary assets and liabilities denominated in nonfunctional currencies and risk associated with interest rate volatility, may subject us to earnings volatility. We may implement a hedging strategy utilizing derivatives instruments or hedging instruments to mitigate such risk. Our hedging instruments are designated as either fair value or cash flow hedges. We formally document our hedge relationships at inception, including identification of the hedging instruments and the hedged items, our risk management objectives and strategies for undertaking the hedge transaction, and the initial quantitative assessment of the hedging instrument's effectiveness in offsetting changes in the fair value of the hedged items. We subsequently assess hedge effectiveness qualitatively, unless the hedge relationship is no longer highly effective. All hedging instruments are recorded at fair value. For fair value hedges, the change in fair value is offset against the change in the fair value of the underlying asset or liability through earnings. For cash flow hedges, the change in fair value is recorded as a component of AOCI and is reclassified into earnings when the hedged item settles. For derivatives that are not designated or do not qualify as hedging instruments, the change in the fair value of the derivative is offset against the change in the fair value of the underlying asset or liability through earnings. In certain limited circumstances, foreign currency payment provisions could be deemed embedded derivatives. If an embedded foreign currency derivative is identified, the derivative is bifurcated from the host contract and the change in fair value is recognized through earnings. We maintain master netting arrangements with certain counterparties to facilitate the settlement of derivative instruments; however, we report the fair value of derivatives on a gross basis.
Concentrations of Credit Risk
Accounts receivable and all contract work in progress are from clients in various industries and locations throughout the world. Most contracts require payments as the projects progress or, in certain cases, advance payments. We generally do not require collateral, but in most cases can place liens against the project assets or terminate the contract, if a material default occurs. We evaluate the counterparty credit risk as part of our project risk review process and in determining the appropriate level of reserves. We maintain reserves for potential credit losses and generally such losses have been minimal and within management's estimates.
Cash and marketable securities are deposited with major banks throughout the world. Such deposits are placed with high quality institutions and the amounts invested in any single institution are limited to the extent possible in order to minimize concentration of counterparty credit risk.
Our counterparties for derivatives are large financial institutions selected based on profitability, strength of balance sheet, credit ratings and capacity for timely payment of financial commitments. There are no significant concentrations of credit risk with any individual counterparty related to our derivative contracts.
We monitor the credit quality of our counterparties and have not incurred any significant credit risk losses related to our deposits or derivative contracts.
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Stock-Based Plans
Our stock plans provide for grants of nonqualified or incentive stock options, RSUs, restricted stock and performance-based award units, including VDI units. All grants of stock options and RSUs as well as performance-based units awarded to Section 16 officers in 2020, 2019 and 2018 can only be settled in company stock and are accounted for as equity awards.
All expense under stock-based awards is recognized based on the fair values of the awards. Stock option awards have grant exercise prices equal to the grant date market price of the company's stock. The fair value of grants of RSUs and restricted stock is determined using the closing price of our common stock on the date of grant but may be discounted for any post-vest holding periods. The grant date fair value of performance-based award units is determined by adjusting the closing price of the company's common stock on the date of grant for any post-vest holding period discounts and for the effect of market conditions, when applicable. Stock-based compensation expense is generally recognized over the required service period, or over a shorter period when employee retirement eligibility is a factor.
We also grant SGI awards and performance-based awards to non-Section 16 executives which are settled in cash. These awards are classified as liabilities and remeasured at fair value through expense at the end of each reporting period using our closing stock price until the awards are settled. Awards that may be settled in cash or company stock at the election of the recipient are also classified as liability awards.
Leases
We recognize right-of-use assets and lease liabilities for leases with terms greater than 12 months or leases that contain a purchase option that is reasonably certain to be exercised. Leases are classified as either finance or operating leases. This classification dictates whether lease expense is recognized based on an effective interest method or on a straight-line basis over the term of the lease.

Our right-of use assets and lease liabilities primarily relate to office facilities, equipment used in connection with long-term construction contracts and other personal property. Certain of our facility and equipment leases include one or more options to renew, with renewal terms that can extend the lease term up to 10 years. The exercise of lease renewal options is at our discretion. Renewal periods are included in the expected lease term if they are reasonably certain of being exercised by us. Certain leases also include options to purchase the leased property. None of our lease agreements contain material residual value guarantees or material restrictions or covenants.

Long-term leases (leases with terms greater than 12 months) are recorded as liabilities at the present value of the minimum lease payments not yet paid. We use our incremental borrowing rate to determine the present value of the lease when the rate implicit in the lease is not readily determinable. Certain lease contracts contain nonlease components such as maintenance, utilities, fuel and operator services. We recognize both the lease component and nonlease components as a single lease component for all of its right-of-use assets. From time to time, certain service or purchase contracts may contain an embedded lease.

Short-term leases (leases with an initial term of 12 months or less or leases that are cancelable by the lessee and lessor without significant penalties) are not capitalized but are expensed on a straight-line basis over the lease term. The majority of our short-term leases relate to equipment used on construction projects. These leases are entered into at periodic rental rates for an unspecified duration and typically have a termination for convenience provision.
3.    Recent Accounting Pronouncements
Accounting Pronouncements Implemented During 2020
On January 1, 2020, we adopted ASC Topic 326, “Financial Instruments - Credit Losses,” which replaces the incurred loss impairment methodology with a methodology that reflects expected credit losses and requires consideration of a broader range of information to estimate credit losses. The new guidance requires financial assets measured at amortized cost to be presented at the net amount expected to be collected. We adopted ASC 326 using the modified retrospective method, and accordingly, the new guidance was applied to financial assets measured at amortized cost (primarily accounts receivable and contract assets) that existed as of January 1, 2020 (the date of initial application). As a result, we recorded additional reserves for credit losses of $2 million and a cumulative effect adjustment to decrease retained earnings by $2 million as of January 1, 2020. The adoption of ASC 326 did not have a material impact on our results of operations or any impact on our cash flows. We utilize a combination of methods for estimating expected credit losses including loss rates, aging schedules and
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FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

probability-of-default. In evaluating our historical loss rates, accounts receivable and contract assets are pooled into the following categories based on similar risk characteristics: (1) EPC management; (2) government; (3) operations and maintenance; and (4) equipment leasing. Historical loss experience is adjusted for current conditions and reasonable and supportable forecasts, when applicable. Significantly aged receivables are evaluated individually by credit rating. Our reserve for credit losses amounted to $39 million and $35 million as of December 31, 2020 and 2019.

In the first quarter of 2020, we adopted ASU 2019-12, “Simplifying the Accounting for Income Taxes,” which eliminates certain exceptions related to the approach for intraperiod tax allocation, the methodology for calculating income taxes in an interim period and the recognition of deferred tax liabilities for outside basis differences. The adoption did not have a material impact on our financial statements.

In the first quarter of 2020, we adopted ASU 2018-18, “Clarifying the Interaction between Topic 808 and Topic 606,” which clarifies that certain transactions between participants in a collaborative arrangement should be accounted for under ASC 606 when the counterparty is a customer. The adoption did not have any impact on our financial statements.

In the first quarter of 2020, we adopted ASU 2018-17, “Targeted Improvements to Related Party Guidance for Variable Interest Entities,” which amends the guidance for determining whether a decision-making fee is a variable interest. The adoption did not have any impact on our financial statements.

In the first quarter of 2020, we adopted ASU 2018-15, “Customer’s Accounting for Implementation Costs Incurred in a Cloud Computing Arrangement That Is a Service Contract,” which requires customers in a hosting arrangement that is a service contract to capitalize certain implementation costs as if the arrangement was an internal-use software project. The adoption did not have any impact on our financial statements.

In the first quarter of 2020, we adopted ASU 2018-13, “Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement,” which amends certain disclosure requirements for fair value measurements. For example, public companies will now be required to disclose the range and weighted average used to develop significant unobservable inputs for Level 3 fair value measurements. The adoption did not have any impact on our financial statements, but we have made additional disclosures related to the range and weighted average rates used to develop significant inputs for nonrecurring Level 3 measurements.
In the fourth quarter of 2020, we adopted ASU 2018-14, “Disclosure Framework - Changes to the Disclosure Requirements for Defined Benefit Plans,” which amends certain disclosure requirements related to defined benefit pension and other postretirement plans. The adoption did not have a material impact on our financial statements.

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4.    Earnings Per Share
Potentially dilutive securities include stock options, RSUs, restricted stock and performance-based award units. Diluted EPS reflects the assumed exercise or conversion of all dilutive securities using the treasury stock method.
Year Ended December 31,
(in thousands, except per share amounts) 2020 2019 2018
Amounts attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops $ (293,899) $ (1,525,767) $ 153,033 
Net earnings (loss) from Disc Ops (141,147) 3,603  20,435 
Net earnings (loss) $ (435,046) $ (1,522,164) $ 173,468 
Basic EPS attributable to Fluor Corporation:
Weighted average common shares outstanding 140,511  140,061  140,413 
Net earnings (loss) from Cont Ops $ (2.09) $ (10.89) $ 1.09 
Net earnings (loss) from Disc Ops (1.01) 0.02  0.15 
Net earnings (loss) $ (3.10) $ (10.87) $ 1.24 
Diluted EPS attributable to Fluor Corporation:
Weighted average common shares outstanding 140,511  140,061  140,413 
Dilutive effects:
Stock options, RSUs, restricted stock and performance-based award units (1)
—  —  859 
Weighted average diluted shares outstanding 140,511  140,061  141,272 
Net earnings (loss) from Cont Ops $ (2.09) $ (10.89) $ 1.08 
Net earnings (loss) from Disc Ops (1.01) 0.02  0.15 
Net earnings (loss) $ (3.10) $ (10.87) $ 1.23 
(1) Anti-dilutive securities not included in shares outstanding
709  593  — 
During 2018, we repurchased and canceled 1.1 million shares of common stock for $50 million.
Limited Duration Stockholder Rights Agreement
In March 2020, the board of directors declared a dividend distribution of one preferred share purchase right for each outstanding share of our common stock, payable to holders of record as of April 10, 2020. The rights are designed to protect against unsolicited takeovers. The rights will be exercisable only if a person or group acquires 10% or more of our outstanding common stock. Each right will entitle stockholders to purchase one one thousandth of a share of a new series of junior participating preferred stock at an exercise price of $50. In addition, if a person or group acquires 10% of our outstanding common stock (unless such person or group acquires 50% or more), the board of directors may exchange one share of common stock for each outstanding right. Prior thereto, the rights are redeemable for $0.01 per right at the option of the board of directors. The rights are scheduled to expire in March 2021.





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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

5.    Operating Information by Segment and Geographic Area
  Year Ended December 31,
(in millions) 2020 2019 2018
Revenue
Energy & Chemicals $ 5,260.4  $ 5,823.7  $ 7,695.5 
Mining & Industrial 4,149.1  5,057.2  3,491.0 
Infrastructure & Power 1,595.5  1,370.4  1,668.0 
Government 2,922.8  2,969.3  3,678.5 
Diversified Services 1,630.9  2,040.1  2,257.2 
Other 109.8  56.6  60.8 
Total revenue $ 15,668.5  $ 17,317.3  $ 18,851.0 
Segment profit (loss)
Energy & Chemicals $ 163.7  $ (95.0) $ 334.5 
Mining & Industrial 122.4  158.5  94.3 
Infrastructure & Power 13.7  (243.9) (30.1)
Government 88.4  200.3  187.3 
Diversified Services 14.2  14.6  68.7 
Other (85.4) (220.1) (144.7)
Total segment profit $ 317.0  $ (185.6) $ 510.0 
Depreciation (all but Corporate included in segment profit)
Energy & Chemicals $ —  $ —  $ — 
Mining & Industrial —  —  — 
Infrastructure & Power 10.0  7.3  6.7 
Government 4.0  4.0  3.6 
Diversified Services 21.9  34.5  52.1 
Other 1.7  2.8  3.2 
Corporate 64.9  61.7  59.8 
Total depreciation(1)
$ 102.5  $ 110.3  $ 125.4 
Capital expenditures
Energy & Chemicals $ —  $ —  $ — 
Mining & Industrial —  —  — 
Infrastructure & Power 28.8  12.2  24.5 
Government 3.2  3.0  6.9 
Diversified Services 24.6  33.6  46.9 
Other 3.4  1.5  1.8 
Corporate 30.0  62.5  90.0 
Total capital expenditures(2)
$ 90.0  $ 112.8  $ 170.1 
December 31, 2020 December 31, 2019
Total assets
Energy & Chemicals $ 1,004.6  $ 1,139.3 
Mining & Industrial 508.5  594.9 
Infrastructure & Power 469.3  471.3 
Government 575.4  629.1 
Diversified Services 950.6  1,290.6 
Other 38.1  68.5 
Corporate 3,574.7  3,379.3 
Discontinued Operations - Assets held for sale 188.6  393.7 
Total assets $ 7,309.8  $ 7,966.7 
Goodwill
Energy & Chemicals $ 12.6  $ 12.6 
Mining & Industrial 9.2  8.2 
Infrastructure & Power 2.5  2.5 
Government 58.0  58.0 
Diversified Services 260.8  420.9 
Other 6.2  6.2 
Total Goodwill $ 349.3  $ 508.4 
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(1) Depreciation of $44 million and $72 million during 2019 and 2018, respectively, was included in discontinued operations and excluded from the table above.
(2) Capital expenditures of $23 million, $68 million and $41 million during 2020, 2019 and 2018, respectively, were included in discontinued operations and excluded from the table above.
Energy & Chemicals. The revenue of a single Energy & Chemicals customer and its affiliates amounted to 12% of our consolidated revenue during 2020. The revenue of a different Energy & Chemicals customer and its affiliates amounted to 11% and 18% of our consolidated revenue during 2019 and 2018, respectively.
Segment profit in 2020 included the adverse impacts of the recognition of reserves totaling $60 million for expected credit losses associated with certain joint venture clients, as well as margin diminution on a percentage-of-completion basis resulting from project positions taken with respect to COVID-19 related schedule delays and associated cost growth. Segment loss in 2019 included charges associated with forecast revisions on certain projects including $260 million (or $1.85 per share) for cost growth on an offshore project; $87 million (or $0.62 per share) for cost growth on two downstream projects and scope reductions on a large upstream project; $26 million (or $0.19 per share) for the write-off of pre-contract costs, $26 million (or $0.19 per share) on embedded foreign currency derivatives and $31 million (or $0.22 per share) from the resolution of close-out matters. Segment profit in 2018 included charges of $133 million (or $0.89 per share) for cost growth on a completed, downstream project and $40 million (or $0.23 per share) for cost growth on the aforementioned offshore project.
We are currently in discussions with the clients of the two lump-sum, downstream projects mentioned above over unapproved change orders totaling $66 million for cost growth and extension of time due to client-caused delays. Our current forecasts are based on the probability of favorably resolving these matters. Revenue and segment profit could be adversely affected if these matters are not successfully resolved, including the assessment of liquidated damages for which our combined maximum exposure for both projects is approximately $121 million.
Mining & Industrial. Segment profit in 2019 included a gain of $31 million (or $0.16 per share) resulting from a favorable resolution of a longstanding customer dispute on a mining project.
Infrastructure & Power. Segment profit in 2020 included a positive settlement on a canceled rail project offset by charges for cost growth in the infrastructure legacy portfolio. Segment loss in 2019 included charges totaling $135 million (or $0.96 per share) for the settlement of client disputes and cost growth on certain close-out matters for three power projects that were substantially complete as of December 31, 2019. Segment loss in 2019 was further driven by charges totaling $133 million (or $0.95 per share) resulting from late engineering changes, schedule-driven cost growth and negotiations with clients and subcontractors on pending change orders, for several infrastructure projects. Segment loss in 2018 included charges totaling $188 million (or $1.02 per share) resulting from cost growth at one of the aforementioned power projects. The charges in 2018 were largely offset by a gain of $125 million (or $0.74 per share) on the sale of a joint venture interest in the United Kingdom.
Government. Revenue from work performed for various agencies of the U.S. government amounted to 18%, 15% and 18% of our consolidated revenue during 2020, 2019 and 2018, respectively.
During 2019, we settled with a client in connection with the cancellation of two subcontracts at nuclear power plant projects in South Carolina and Georgia. The settlement resolved our claims arising prior to the bankruptcy filing in March 2017. Proceeds from the settlement were received during 2019. As a result of the settlement, we de-recognized pre-petition accounts receivable of $68 million and also recorded $89 million of previously unrecognized service fee revenue.
Diversified Services.  During 2020, 2019 and 2018, intercompany revenue for the Diversified Services segment, excluded from the amounts shown above, was $270 million, $322 million and $332 million, respectively.
Other. Segment loss in 2019 included charges of $59 million (or $0.42 per share) on the Warren project and $83 million (or $0.59 per share) on the Radford project for various engineering and cost growth associated with the facilities. Segment loss in 2018 of $56 million (or $0.30 per share) was driven by forecast revisions on the Radford project. There were no similar material charges in 2020. Segment loss for all periods included the operations of NuScale, which are primarily for research and development activities associated with the licensing and commercialization of small modular nuclear reactor technology. NuScale expenses included in the determination of segment loss were $84 million, $66 million and $74 million during 2020,
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

2019 and 2018, respectively. NuScale expenses in 2020, 2019 and 2018 were reported net of qualified reimbursable expenses of $71 million, $56 million and $62 million, respectively.
Reconciliation of Total Segment Profit (Loss) to Earnings (Loss) from Continuing Operations Before Taxes
Year Ended December 31,
(in millions) 2020 2019 2018
Total segment profit (loss) $ 317.0  $ (185.6) $ 510.0 
Corporate general and administrative expense (240.7) (165.9) (121.2)
Impairment, restructuring and other exit costs (305.6) (532.6) — 
Gain (loss) on pension settlement 0.4  (137.9) (21.9)
Interest income (expense), net (46.4) (18.5) (40.6)
Earnings (loss) attributable to NCI from continuing operations 68.2  (31.0) 59.4 
Earnings (loss) from continuing operations before taxes $ (207.1) $ (1,071.5) $ 385.7 
Foreign currency exchange gains and (losses) of ($47 million), ($27 million) and $33 million were included in Corporate G&A during 2020, 2019 and 2018, respectively.
Operating Information by Geographic Area
Revenue by project location
Year Ended December 31, 		Total Assets
As of December 31,
(in millions) 2020 2019 2018 2020 2019
North America $ 9,806.4  $ 8,439.7  $ 8,982.1  $ 3,982.4  $ 3,728.8 
Asia Pacific (includes Australia) 1,398.2  1,763.3  1,494.0  562.1  533.7 
Europe 2,517.5  3,731.6  5,326.6  1,403.9  1,906.9 
Central and South America 1,388.1  2,375.3  1,262.6  812.8  1,233.6 
Middle East and Africa 558.3  1,007.4  1,785.7  548.6  563.7 
Total $ 15,668.5  $ 17,317.3  $ 18,851.0  $ 7,309.8  $ 7,966.7 
6.    Impairment, Restructuring and Other Exit Costs
Restructuring and Other Exit Costs

During 2019, we initiated a restructuring plan designed to optimize costs and improve operational efficiency. These efforts primarily relate to the rationalization of resources, investments, real estate and overhead across various geographies, as well as the liquidation of certain components of the AMECO business that are being excluded from sale. Our planned restructuring activities were substantially completed by the end of 2020. Restructuring costs totaled $8 million and $240 million during 2020 and 2019, respectively.

Information about our restructuring, which we believe is complete as of December 31, 2020, follows:
(in millions) Costs Incurred in 2020 Costs Incurred in
2019
Restructuring and other exit costs:
Severance $ 6.6  $ 63.9 
Asset impairments 0.4  90.4 
Entity liquidation costs (including the recognition of cumulative translation adjustments) —  83.7 
Other exit costs 1.0  2.0 
Total restructuring and other exit costs $ 8.0  $ 240.0 
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Asset impairment charges included the write down of assets held for sale to fair value less cost to sell and the write down of certain other assets to fair value. The fair value of assets and liabilities held for sale and other impaired assets, primarily construction equipment, was estimated using observable Level 2 inputs for identical assets. See Note 24 for a summary of assets and liabilities classified as held for sale as of December 31, 2020 and 2019. The fair value of the other impaired assets was $25 million as of December 31, 2019. These assets were included in "Property, plant and equipment" and "Other assets". The fair value of these other assets was estimated using observable Level 2 inputs for identical assets.
A reconciliation of restructuring liabilities follow:
(in thousands) Severance Lease Exit Costs Other Total
Balance as of December 31, 2019 $ 46,303  $ 570  $ 307  $ 47,180 
Restructuring charges accrued during the period 6,965  334  687  7,986 
Cash payments / settlements during the period (32,292) (799) (993) (34,084)
Currency translation 2,282  1  (1) 2,282 
Balance as of December 31, 2020 $ 23,258  $ 106  $ —  $ 23,364 
Impairment
Impairment expense is summarized as follows:
Year Ended December 31,
(in thousands) 2020 2019
Impairment expense:
Goodwill associated with the Diversified Services reporting unit $ 168,568  $ 2,125 
Intangible customer relationships associated with Stork 26,671  33,657 
Equity method investments in the Energy & Chemicals segment 86,096  256,769 
Information technology assets 16,269  — 
Total impairment expense $ 297,604  $ 292,551 
2020 Impairment
Our business has been adversely affected by the economic impacts of the outbreak of COVID-19 and the steep decline in oil prices that occurred in the early part of 2020. These events have created significant uncertainty and economic volatility and disruption, which have impacted and may continue to impact our business. We have experienced, and may continue to experience, reductions in demand for certain of our services and the delay or abandonment of ongoing or anticipated projects due to our clients’, suppliers’ and other third parties’ diminished financial condition or financial distress, as well as governmental budget constraints. These impacts are expected to continue or worsen under prolonged stay-at-home, social distancing, travel restrictions and other similar orders or restrictions. Significant uncertainty still exists concerning the magnitude of the impact and duration of these events. Because of these events, we performed interim impairment testing of our goodwill, intangible assets and investments and recognized the above impairment expense during the first quarter of 2020.
As part of our assessment of goodwill, the fair value of the reporting units was determined using an income based approach that utilized unobservable Level 3 inputs, including significant management assumptions such as expected awards, forecasted revenue and operating margins, weighted average cost of capital, working capital assumptions and general market trends and conditions.
The customer relationships' valuation approach utilized unobservable Level 3 inputs including ranges of assumptions of long-term revenue growth from 2% to 5.5% with a weighted average of 2.4%, weighted average cost of capital of 12% and a customer attrition factor of 10%.

The valuation of the equity method investments utilized unobservable Level 3 inputs based on the forecast of anticipated volumes and overhead absorption in a cyclical business.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

2019 Impairment
During 2019, we recognized impairment expense on our intangible customer relationships associated with Stork. The fair value of the customer relationships was determined by a third party using an income-based approach that utilized unobservable Level 3 inputs, including significant management assumptions such as forecasted revenue and operating margins, customer attrition and weighted average cost of capital. The net carrying value of the customer relationships was $31 million as of December 31, 2019.
We also evaluated our significant investments and determined that certain of our investments were impaired during 2019. The fair value of these investments were determined using income-based approaches that utilized unobservable Level 3 inputs, including significant management assumptions such as forecasted revenue and operating margins and weighted average cost of capital. The net carrying value of these investments totaled $95 million as of December 31, 2019.
7.    Income Taxes
In March 2020, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was enacted. The CARES Act, among other things, includes provisions relating to net operating loss carryback periods, alternative minimum tax credit refunds, modifications to the net interest deduction limitations and deferral of employer payroll taxes. We recorded a discrete benefit of $125 million due to utilization of a 2019 net operating loss in the carryback period. Prior to the CARES Act, this loss could only be carried forward and was offset by a valuation allowance. Through December 31, 2020, we have deferred payroll taxes of $41 million under the CARES Act, with approximately half of the deferral payable in 2021 and and the remainder payable in 2022.

The income tax expense (benefit) components recognized in continuing operations follow:
  Year Ended December 31,
(in thousands) 2020 2019 2018
Current:
Federal $ (121,411) $ (36,591) $ (19,199)
Foreign 140,551  163,141  115,281 
State and local 5,343  4,295  12,377 
Total current 24,483  130,845  108,459 
Deferred:
Federal 17,451  325,351  16,800 
Foreign (23,342) 9,593  55,208 
State and local —  19,441  (7,136)
Total deferred (5,891) 354,385  64,872 
Total income tax expense $ 18,592  $ 485,230  $ 173,331 
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

A reconciliation of U.S. statutory federal income tax expense (benefit) to income tax expense (benefit) from continuing operations follows:
  Year Ended December 31,
(in thousands) 2020 2019 2018
U.S. statutory federal tax expense (benefit) $ (43,481) $ (225,014) $ 81,007 
Increase (decrease) in taxes resulting from:
State and local income taxes (10,614) (11,135) (13,668)
U.S. tax on GILTI —  —  10,649 
NCI (9,466) 11,565  (7,200)
Foreign tax differential, net 38,667  13,479  1,460 
Valuation allowance, net 148,783  730,787  79,168 
Other changes to uncertain tax positions 7,484  4,098  7,753 
Stranded tax effects from AOCI —  (35,619) — 
Impact of tax reform —  —  (1,373)
CARES Act Benefit (124,753) —  — 
Other, net 11,972  (2,931) 15,535 
Total income tax expense $ 18,592  $ 485,230  $ 173,331 
Deferred taxes reflect the tax effects of differences between the amounts recorded as assets and liabilities for financial reporting purposes and the amounts recorded for income tax purposes. The tax effects of significant temporary differences giving rise to deferred tax assets and liabilities are as follows:
  December 31,
(in thousands) 2020 2019
Deferred tax assets:
Accrued liabilities not currently deductible:
Employee compensation and benefits $ 104,305  $ 116,162 
Project and non-project reserves 71,999  60,768 
Net operating loss carryforward 326,402  357,803 
Tax basis of investment in excess of book basis 118,915  88,255 
U.S. foreign tax credit carryforward 414,348  226,845 
AOCI 62,681  67,258 
Other 103,955  85,059 
Total deferred tax assets 1,202,605  1,002,150 
Valuation allowance (1,080,752) (910,336)
Deferred tax assets, net $ 121,853  $ 91,814 
Deferred tax liabilities:
Book basis of property and equipment in excess of tax basis (43,475) (29,846)
Dividend withholding on unremitted non-U.S. earnings (57,859) (49,663)
Other (23,349) (32,912)
Total deferred tax liabilities (124,683) (112,421)
Deferred tax assets, net of deferred tax liabilities $ (2,830) $ (20,607)
As of December 31, 2020, we are indefinitely reinvested only with respect to unremitted earnings required to meet our working capital and long-term investment needs in the foreign jurisdictions within which we operate. Beyond those limits, we expect current earnings to be available for distribution. Deferred tax liabilities of approximately $28 million have not been recorded with respect to unremitted earnings that are considered indefinitely reinvested, again primarily associated with
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

foreign withholding and income taxes that would be due upon remittance. We have no intention of initiating any actions that would lead to taxation of the earnings deemed indefinitely reinvested.

We have U.S federal and state net operating loss carryforwards of $159 million and $908 million, respectively. The federal net operating loss carryforwards can be carried forward indefinitely. If not used, the state net operating loss carryforwards will begin to expire in 2021. Approximately $117 million of the state net operating loss carryforwards will expire in 2021. We also have non-U.S. net operating loss carryforwards related to various jurisdictions of approximately $1.2 billion. Non-U.S. net operating losses include $599 million in the United Kingdom and $345 million in the Netherlands as of December 31, 2020. Of the total non-U.S. losses, $800 million can be carried forward indefinitely. The majority of the remaining $296 million net operating losses, if unused, will expire between 2023 and 2028.

We had U.S. foreign tax credits of approximately $414 million as of December 31, 2020, which will begin to expire in 2028, but which are fully reserved for in our valuation allowance

During 2020 and 2019, we were in a three-year cumulative loss on a consolidated, jurisdictional basis in Australia, the Netherlands, the U.K. and the U.S. Such cumulative loss constitutes significant negative evidence (with regards to future taxable income) for assessing likelihood of realization. We also considered positive evidence but concluded it did not outweigh this significant negative evidence of a three-year cumulative loss. Accordingly, we recognized non-cash charges to tax expense of $142 million and $602 million to record a valuation allowance against net U.S. deferred tax assets and $28 million and $129 million against certain net foreign deferred tax assets during 2020 and 2019, respectively.

In the normal course of business, we are subject to examination by taxing authorities worldwide, including such major jurisdictions as Australia, Canada, the Netherlands, South Africa, the United Kingdom, and the United States. Although we believe our reserves for our tax positions are reasonable, the outcome of tax audits could be materially different, both favorably and unfavorably. With a few exceptions, we are no longer subject to U.S. federal, state and local, or non-U.S. income tax examinations for years before 2012.
A summary of unrecognized tax benefits follows:
(in thousands) 2020 2019
Balance at beginning of year $ 42,394  $ 55,476 
Change in tax positions of prior years 8,166  6,359 
Change in tax positions of current year —  — 
Reduction in tax positions for statute expirations (1,510) (16,894)
Reduction in tax positions for audit settlements (637) (2,547)
Balance at end of year $ 48,413  $ 42,394 

If recognized, the total amount of unrecognized tax benefits as of December 31, 2020 and 2019, would favorably impact the effective tax rates by $30 million and $22 million, respectively. We had $11 million and $10 million of accrued interest and penalties as of December 31, 2020 and 2019, respectively. We do not anticipate any significant changes to the unrecognized tax benefits within the next twelve months.
U.S. and foreign earnings (loss) from continuing operations before taxes are as follows:
  Year Ended December 31,
(in thousands) 2020 2019 2018
United States $ (265,682) $ (968,280) $ (252,376)
Foreign 58,630  (103,215) 638,125 
Total $ (207,052) $ (1,071,495) $ 385,749 
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

8.    Supplemental Cash Flow Information
The changes in assets and liabilities included in operating cash flow follow:
Year Ended December 31,
(in thousands) 2020 2019 2018
(Increase) decrease in:
Accounts and notes receivable, net $ 138,388  $ 210,419  $ (40,632)
Contract assets 280,360  207,467  (83,774)
Other current assets 3,893  (80,248) 168,021 
Other assets 109,405  100,527  (25,424)
Increase (decrease) in:
Accounts payable (343,113) (46,873) 176,335 
Contract liabilities (53,580) 202,359  (307,844)
Accrued liabilities (11,829) 29,880  (75,878)
Other liabilities (93,723) 9,496  (38,536)
Increase (decrease) in cash due to changes in assets and liabilities $ 29,801  $ 633,027  $ (227,732)
Cash paid during the year for:
Interest $ 65,641  $ 71,938  $ 66,514 
Income taxes (net of refunds) 65,188  204,080  (28,408)
9.    Partnerships and Joint Ventures
In the normal course of business, we form partnerships or joint ventures primarily for the execution of single contracts or projects. The majority of these partnerships or joint ventures are characterized by a 50 percent or less, noncontrolling ownership or participation interest, with decision making and distribution of expected gains and losses typically being proportionate to the ownership or participation interest. Many of the partnership and joint venture agreements provide for capital calls to fund operations, as necessary. Accounts receivable related to work performed for unconsolidated partnerships and joint ventures included in "Accounts and notes receivable, net" were $218 million and $149 million as of December 31, 2020 and 2019, respectively.
The following is a summary of aggregate, unaudited balance sheet data for unconsolidated entities where our investment is presented as a one-line equity method investment:
December 31,
(in millions) 2020 2019
Current assets $ 8,138  $ 6,927 
Noncurrent assets 4,745  5,109 
Current liabilities 6,307  4,605 
Noncurrent liabilities 4,354  5,256 
The following is a summary of aggregate, unaudited income statement data for unconsolidated entities where the equity method of accounting is used to recognize our share of net earnings or loss of investees:
(in millions) 2020 2019 2018
Revenue $ 1,209  $ 1,258  $ 1,465 
Cost of revenue 1,104  1,151  1,338 
Net earnings 54  45  35 
During 2020 and 2019, we evaluated our significant investments and determined that certain of our investments were impaired. As a result, we recognized impairment expense of $86 million and $257 million during 2020 and 2019, respectively.
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

One of our more significant joint ventures is COOEC Fluor, in which we have a 49% ownership interest. COOEC Fluor owns, operates and manages the Zhuhai Fabrication Yard in China’s Guangdong province. We completed our final funding commitment to the joint venture of $26 million during 2021.
During 2020, we sold our interests in three infrastructure joint ventures and recognized a gain of $8 million. We also sold our 50% interest in an Energy & Chemicals joint venture during 2020 and recognized a loss of $11 million.
Variable Interest Entities
The net carrying value of the unconsolidated VIEs (classified under both investments and other accrued liabilities) was a net asset of $174 million and $217 million as of December 31, 2020 and 2019, respectively. Some of our VIEs have debt; however, such debt is typically non-recourse in nature. Our maximum exposure to loss as a result of our investments in unconsolidated VIEs is typically limited to the aggregate of the carrying value of the investment and future funding necessary to satisfy the contractual obligations of the VIE. Future funding commitments as of December 31, 2020 for the unconsolidated VIEs were $72 million.
In some cases, we are required to consolidate certain VIEs. As of December 31, 2020, the carrying values of the assets and liabilities associated with the operations of the consolidated VIEs were $1.3 billion and $703 million, respectively. As of December 31, 2019, the carrying values of the assets and liabilities associated with the operations of the consolidated VIEs were $1.1 billion and $798 million, respectively. The assets of a VIE are restricted for use only for the particular VIE and are not available for our general operations.
We have agreements with certain VIEs to provide financial or performance assurances to clients, as discussed elsewhere.
10.    Guarantees
In the ordinary course of business, we enter into various agreements providing performance assurances and guarantees to our clients on behalf of certain unconsolidated and consolidated partnerships, joint ventures and other jointly executed contracts. These agreements are entered into primarily to support project execution commitments. The performance guarantees have various expiration dates ranging from mechanical completion of the project to a period extending beyond contract completion. The maximum potential amount of future payments that we could be required to make under outstanding performance guarantees, which represents the remaining cost of work to be performed, was estimated to be $14 billion as of December 31, 2020. For cost reimbursable contracts, amounts that may become payable pursuant to guarantee provisions are normally recoverable from the client for work performed. For lump-sum contracts, the performance guarantee amount is the cost to complete the contracted work, less amounts remaining to be billed to the client under the contract. Remaining billable amounts could be greater or less than the cost to complete. In those cases where costs exceed the remaining amounts payable under the contract, we may have recourse to third parties, such as owners, partners, subcontractors or vendors for claims. The performance guarantee obligation was not material as of December 31, 2020 and 2019.
Financial guarantees, made in the ordinary course of business in certain limited circumstances, are entered into with financial institutions and other credit grantors and generally obligate the company to make payment in the event of a default by the borrower. These arrangements generally require the borrower to pledge collateral to support the fulfillment of the borrower's obligation.
11.    Contingencies and Commitments
We and certain of our subsidiaries are subject to litigation, claims and other commitments and contingencies arising in the ordinary course of business. Although the asserted value of these matters may be significant, we currently do not expect that the ultimate resolution of any open matters will have a material adverse effect on our financial position or results of operations.
Since May 2018, purported shareholders have filed various complaints against Fluor Corporation and certain of its current and former executives in the U.S. District Court for the Northern District of Texas. The plaintiffs purport to represent a class of shareholders who purchased or otherwise acquired Fluor common stock from August 14, 2013 through February 14, 2020, and seek to recover damages arising from alleged violations of federal securities laws. These claims are based on statements concerning Fluor’s internal and disclosure controls, risk management, revenue recognition, and Fluor’s gas-fired
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power business, which plaintiffs assert were materially misleading. As of May 26, 2020, these complaints have been consolidated into one matter. We filed a motion to dismiss the matter on July 1, 2020. While no assurance can be given as to the ultimate outcome of this matter, we do not believe it is probable that a loss will be incurred. Accordingly, we have not recorded a charge as a result of this action.
Since September 2018, ten separate purported shareholders' derivative actions were filed against current and former members of the Board of Directors, as well as certain of Fluor’s current and former executives. Fluor Corporation is named as a nominal defendant in the actions. These derivative actions purport to assert claims on behalf of Fluor Corporation and make substantially the same factual allegations as the securities class action matter discussed above and seek various forms of monetary and injunctive relief. These actions are pending in Texas state court (District Court for Dallas County), the U.S. District Court for the District of Delaware, the U.S. District Court for the Northern District of Texas, and the Court of Chancery of the State of Delaware. Certain of these actions have been consolidated and stayed until our motion to dismiss is ruled upon in the securities class action matter. While no assurance can be given as to the ultimate outcome of this matter, we do not believe it is probable that a loss will be incurred. Accordingly, we have not recorded a charge as a result of these actions.
Fluor Australia Ltd., our wholly-owned subsidiary (“Fluor Australia”), completed a cost reimbursable engineering, procurement and construction management services project for Santos Ltd. (“Santos”) involving a large network of natural gas gathering and processing facilities in Queensland, Australia. On December 13, 2016, Santos filed an action in Queensland Supreme Court against Fluor Australia, asserting various causes of action and seeking damages and/or a refund of contract proceeds paid of approximately AUD $1.47 billion. Santos has joined Fluor Corporation to the matter on the basis of a parent company guarantee issued for the project. We believe that the claims asserted by Santos are without merit and we are vigorously defending these claims. While no assurance can be given as to the ultimate outcome of this matter, we do not believe it is probable that a loss will be incurred. Accordingly, we have not recorded a charge as a result of this action.
Fluor Limited, our wholly-owned subsidiary (“Fluor Limited”), and Fluor Arabia Limited, a partially-owned subsidiary (“Fluor Arabia”), completed cost reimbursable engineering, procurement and construction management services for Sadara Chemical Company (“Sadara”) involving a large petrochemical facility in Jubail, Kingdom of Saudi Arabia. On August 23, 2019, Fluor Limited and Fluor Arabia Limited commenced arbitration proceedings against Sadara after it refused to pay invoices totaling approximately $100 million due under the parties’ agreements. As part of the arbitration proceedings, Sadara has asserted various counterclaims for damages and/or a refund of contract proceeds paid totaling approximately $574 million against Fluor Limited and Fluor Arabia Limited. We believe that the counterclaims asserted by Sadara are without merit and are vigorously defending these claims. While no assurance can be given as to the ultimate outcome of the counterclaims, we do not believe it is probable that a loss will be incurred in excess of amounts reserved for this matter. Accordingly, we have not recorded a charge as a result of the counterclaims.
Various wholly-owned subsidiaries of Fluor, in conjunction with a partner, TECHINT, (“Fluor/TECHINT”) performed engineering, procurement and construction management services on a cost reimbursable basis for Barrick involving a gold mine and ore processing facility on a site straddling the border between Argentina and Chile. In 2013, Barrick terminated the Fluor/TECHINT agreements for convenience and not due to the performance of Fluor/TECHINT. On August 12, 2016, Barrick filed a notice of arbitration against Fluor/TECHINT, demanding damages and/or a refund of contract proceeds paid of not less than $250 million under various claims relating to Fluor/TECHINT’s alleged performance. Proceedings were suspended while the parties explored a possible settlement. In August 2019, Barrick drew down $36 million of letters of credit from Fluor/TECHINT ($24 million from Fluor and $12 million from TECHINT). Thereafter, Barrick proceeded to reactivate the arbitration. In December 2020, Barrick and Fluor/TECHINT exchanged detailed statements of claim and counterclaim pursuant to which Barrick’s claim against Fluor/TECHINT now totals approximately $330 million. We believe that the claims asserted by Barrick are without merit and are vigorously defending these claims. While no assurance can be given as to the ultimate outcome of this matter, we do not believe it is probable that a loss will be incurred. Accordingly, we have not recorded a charge as a result of these claims.
Purple Line Transit Partners, LLC (“PLTP”) entered into a Public Private Partnership Agreement (“PPPA”) with the Maryland Department of Transportation and the Maryland Transit Administration (together, the “State”) for the finance, design, construction, and operation of the Purple Line Project, a new light rail line in Maryland (the “Project”). PLTP is a limited liability company in which Fluor has a 15% membership interest. PLTP entered into an Amended and Restated Design-Build Contract (the “DB Contract”) with Purple Line Transit Constructors, LLC (“PLTC”) as design-build contractor to perform PLTP’s design and construction obligations under the PPPA on a back-to-back basis. PLTC is a limited liability company in which Fluor has a 50% membership interest. The design and construction of the Project was significantly delayed by more
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than two and a half years due to events outside of PLTP or PLTC’s control. The PPPA contained a provision allowing PLTP the unconditional right to terminate the PPPA if certain events delayed the design and construction of the Project by 365 days or more. The DB Contract contained a similar provision allowing PLTC to terminate the DB Contract. Because of significant Project delays, in excess of 365 days, on May 1, 2020, PLTC gave notice to PLTP of PLTC’s intent to terminate the DB Contract. Upon receiving PLTC’s notice, on June 23, 2020, PLTP exercised its unconditional right to terminate the PPPA. The State challenged PLTP’s termination of the PPPA and commenced a lawsuit in Maryland state court against PLTP alleging breach of the PPPA. This matter has now been resolved. PLTC, PLTP and the State entered into a comprehensive settlement in December, 2020. As part of the settlement, Fluor transferred its 15% interest in PLTP to the remaining partners. Fluor also sold its 50% interest in the operations & maintenance entity to the remaining partners. PLTC received an initial settlement payment of $116 million from PLTP in December 2020, and we are contractually owed an additional $150 million to be paid no later than December 2021. The lawsuit has been dismissed with prejudice, the DB Contract is officially terminated, and PLTC has received a final release from PLTP and the State.
Other Matters
We have made claims arising from the performance under our contracts. We recognize revenue for claims, including change orders in dispute and unapproved change orders, when it is probable that a significant reversal in the amount of cumulative revenue recognized will not occur. We estimate the amount of revenue to be recognized on claims using the expected value method (i.e., the sum of probability-weighted amounts) or the most likely amount method, whichever offers better prediction. Factors considered in determining whether revenue associated with claims should be recognized include the following: (a) the legal basis for the claim, (b) additional costs were caused by circumstances that were unforeseen at the contract date and not the result of deficiencies in our performance, (c) claim-related costs are identifiable and considered reasonable in view of the work performed, and (d) evidence supporting the claim is objective and verifiable. Similarly, we recognize disputed back charges to suppliers or subcontractors as a reduction of cost when the same requirements have been satisfied. We periodically evaluate our positions and the amounts recognized with respect to all our claims and back charges. As of December 31, 2020 and 2019, we had recorded $216 million and $198 million, respectively, of claim revenue for costs incurred to date. Additional costs, which will increase the claim revenue balance over time, are expected to be incurred in future periods. We also had recorded disputed back charges to suppliers or subcontractors as of December 31, 2020 and 2019, none of which were material.
From time to time, we enter into contracts with the U.S. government and its agencies. Government contracts are subject to audits and investigations by government representatives with respect to our compliance with various restrictions and regulations applicable to government contractors, including but not limited to the allowability of costs incurred under reimbursable contracts. In connection with performing government contracts, we maintain reserves for estimated exposures associated with these matters.
Our operations are subject to and affected by federal, state and local laws and regulations regarding the protection of the environment. We maintain reserves for potential future environmental cost where such obligations are either known or considered probable, and can be reasonably estimated. We believe, based upon present information available to us, that our reserves with respect to future environmental cost are adequate and such future cost will not have a material effect on our consolidated financial position, results of operations or liquidity.
In February 2020, we announced that the SEC is conducting an investigation and has requested documents and information related to projects for which we recorded charges in the second quarter of 2019. In April 2020, the Corporation received a subpoena from the U.S. Department of Justice (“DOJ”) seeking documents and information related to the second quarter 2019 charges; certain of the projects associated with those charges; and certain project accounting, financial reporting and governance matters. We are coordinating responses to the SEC and DOJ and cooperating in providing the requested documents and information, which efforts are ongoing.
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12.    Contract Assets and Liabilities
The following summarizes information about our contract assets and liabilities:
December 31,
(in millions) 2020 2019
Information about contract assets:
Contract assets
Unbilled receivables $ 681  $ 851 
Contract work in progress 287  387 
Contract assets $ 968  $ 1,238 
Advance billings deducted from contract assets $ 310  $ 574 
Year Ended December 31,
2020 2019
Information about contract liabilities:
Provision for anticipated losses on contracts included in contract liabilities $ 203  $ 371 
Revenue recognized that was included in contract liabilities as of January 1 755  779 
    
13. Remaining Unsatisfied Performance Obligations

    We estimate that our RUPO will be satisfied over the following periods:
(in millions) December 31, 2020
Within 1 year $ 10,873 
1 to 2 years 6,150 
Thereafter 6,445 
Total remaining unsatisfied performance obligations $ 23,468 
14.    Lines of Credit, Senior Notes and Other Borrowings
Debt consisted of the following:
  December 31,
(in thousands) 2020 2019
Current:
Other borrowings $ 25,415  $ 38,728 
Long-Term:
Senior Notes
2023 Notes $ 609,764  $ 557,185 
2024 Notes 496,200  495,240 
2028 Notes 595,134  594,502 
Other borrowings 8,935  4,812 
Borrowings under committed lines of credit $ —  $ — 
Committed Line of Credit
In February 2021, we entered into an amended and restated $1.65 billion credit facility which matures in February 2023. This credit facility contains customary financial covenants, including a debt-to-capitalization ratio that cannot exceed 0.65 to 1.00, a limitation on the aggregate amount of debt of the greater of $750 million or €750 million for our subsidiaries, and a minimum liquidity threshold, as defined in the amended credit facility, of $1.5 billion which may be reduced to $1.25 billion
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upon the repayment of debt. If this credit facility had been in place as of December 31, 2020, our financial covenants would have limited our further borrowings to approximately $934 million. The credit facility also contains provisions that will require us to provide collateral to secure this facility should we be downgraded to BB by S&P and Ba2 by Moody's, such collateral consisting broadly of our U.S. assets. Borrowings under the facility, which may be denominated in USD, EUR, GBP or CAD, bear interest at a base rate, plus an applicable borrowing margin.
As of December 31, 2020, letters of credit totaling $418 million were outstanding under our predecessor lines of credit, which consisted of a $1.7 billion Revolving Loan and Letter of Credit Facility and a $1.8 billion Revolving Loan and Letter of Credit Facility. There were no borrowings outstanding under these facilities as of December 31, 2020. These credit facilities also contained customary financial and restrictive covenants, including a debt-to-capitalization ratio that could not exceed 0.6 to 1.0.
Senior Notes
In August 2018, we issued $600 million of 4.250% Senior Notes due in September 2028 ("2028 Notes") and received proceeds of $595 million. Interest on the 2028 Notes is payable semi-annually in March and September. Prior to June 2028, we may redeem the 2028 Notes at a redemption price equal to 100% of the principal amount, plus a “make whole” premium described in the indenture. After June 2028, the 2028 Notes can be redeemed at par plus accrued interest.
In March 2016, we issued €500 million of 1.750% Senior Notes due in March 2023 ("2023 Notes") and received proceeds of €497 million. Interest on the 2023 Notes is payable annually in March. Prior to December 2022, we may redeem the 2023 Notes at a redemption price equal to 100% of the principal amount, plus a "make whole" premium described in the indenture. After December 2022, the 2023 Notes can be redeemed at par plus accrued interest. Additionally, we may redeem the 2023 Notes at par plus accrued interest if certain changes in U.S. tax laws occur.
In November 2014, we issued $500 million of 3.5% Senior Notes due in December 2024 ("2024 Notes") and received proceeds of $491 million. Interest on the 2024 Notes is payable semi-annually in June and December. Prior to September 2024, we may redeem the 2024 Notes at a redemption price equal to 100% of the principal amount, plus a "make whole" premium described in the indenture. After September 2024, the 2024 Notes can be redeemed at par plus accrued interest.
For all of the Senior Notes, a change of control (as defined by the terms of the respective indentures) could require the company to repay them at 101% of the principal amount, plus accrued interest. We may incur additional indebtedness if we are in compliance with certain restrictive covenants, including restrictions on liens and restrictions on sale and leaseback transactions.
Other Borrowings and Letters of Credit
Other borrowings of $34 million and $44 million as of December 31, 2020 and 2019, respectively, primarily represent bank loans and other financing arrangements associated with Stork.
Letters of credit are provided in the ordinary course of business primarily to indemnify our clients if we fail to perform our obligations under our contracts. Surety bonds may be used as an alternative to letters of credit. As of December 31, 2020, letters of credit totaling $862 million were outstanding under uncommitted lines of credit.
15.    Fair Value Measurements
The fair value hierarchy prioritizes the use of inputs used in valuation techniques into the following three levels:
•Level 1 — quoted prices in active markets for identical assets and liabilities
•Level 2 — inputs other than quoted prices in active markets for identical assets and liabilities that are observable, either directly or indirectly
•Level 3 — unobservable inputs
We perform procedures to verify the reasonableness of pricing information received from third parties for significant assets and liabilities classified as Level 2.
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The following table delineates assets and liabilities that are measured at fair value on a recurring basis:
  December 31, 2020 December 31, 2019
(in thousands) Total Level 1 Level 2 Level 3 Total Level 1 Level 2 Level 3
Assets:
Deferred compensation trusts(1)
$ 9,626  $ 9,626  $ —  $ —  $ 7,719  $ 7,719  $ —  $ — 
Derivative assets(2)
Foreign currency 22,667  —  22,667  —  7,167  —  7,167  — 
Commodity 806  —  806  —  46  —  46  — 
Liabilities:
Derivative liabilities(2)
Foreign currency $ 2,571  $ —  $ 2,571  $ —  $ 6,561  $ —  $ 6,561  $ — 
Commodity 5,059  —  5,059  —  1,247  —  1,247  — 

(1)Consists of registered money market funds and an equity index fund. These investments, which are trading securities, represent the net asset value as of the close of business at the end of the period based on the last trade or official close of an active market or exchange.
(2)Foreign currency and commodity derivatives are estimated using pricing models with market-based inputs, which take into account the present value of estimated future cash flows.
During 2018, proceeds from sales and maturities of available-for-sale securities were $175 million. There were no sales or maturities of available-for-sale securities during 2020 and 2019.
We have measured assets and liabilities held for sale and certain other impaired assets at fair value on a nonrecurring basis.
The following summarizes information about our financial instruments that are not required to be measured at fair value:
December 31, 2020 December 31, 2019
(in thousands) Fair Value Hierarchy Carrying Value Fair Value Carrying Value Fair Value
Assets:
Cash(1)
Level 1 $ 1,180,024  $ 1,180,024  $ 1,014,138  $ 1,014,138 
Cash equivalents(2)
Level 2 1,018,757  1,018,757  983,061  983,061 
Marketable securities, current(2)
Level 2 23,345  23,345  7,262  7,262 
Notes receivable, including noncurrent portion(3)
Level 3 38,295  38,295  28,117  28,117 
Liabilities:
2023 Senior Notes(4)
Level 2 $ 609,764  $ 578,554  $ 557,185  $ 562,399 
2024 Senior Notes(4)
Level 2 496,200  494,045  495,240  510,145 
2028 Senior Notes(4)
Level 2 595,134  599,220  594,502  609,918 
Other borrowings, including noncurrent portion(5)
Level 2 34,350  34,350  43,539  43,539 
_______________________________________________________________________________
(1)Cash consists of bank deposits. Carrying amounts approximate fair value.
(2)The carrying amounts of these time deposits approximate fair value because of the short-term maturity of these instruments. Amortized cost is not materially different from the fair value.
(3)Notes receivable are carried at net realizable value which approximates fair value. Factors considered in determining the fair value include the credit worthiness of the borrower, current interest rates, the term of the note and any collateral pledged as security. Notes receivable are periodically assessed for impairment.
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(4)The fair value of the Senior Notes was estimated based on quoted market prices and Level 2 inputs.
(5)Other borrowings primarily represent bank loans and other financing arrangements which primarily mature within one year. The carrying amount of borrowings under these arrangements approximates fair value because of the short-term maturity.
16.    Goodwill and Intangible Assets
As discussed above, we performed interim impairment testing of our goodwill and intangible assets in the first quarter of 2020 due to the impacts of COVID-19 and the decline in oil prices. We recognized impairment expense of $169 million on goodwill associated with Diversified Services and $27 million on intangible customer relationships associated with Stork. No additional impairment on goodwill or intangible assets was recognized during the remainder of 2020. During 2019, we recognized impairment expense of $34 million on intangible customer relationships associated with Stork.
The following table provides a summary of each major intangible asset class:
December 31, 2020 December 31, 2019 Weighted
Average
Life
(in thousands) Gross Carrying Amount Accumulated Amortization Net Book Value Gross Carrying Amount Accumulated Amortization Net Book Value
Customer relationships (finite-lived) $ —  $ —  $ —  $ 31,894  $ (451) $ 31,443  8
Trade names (finite-lived) 9,169  (4,844) 4,325  8,388  (3,460) 4,928  13
Trade names (indefinite-lived) 53,411  —  53,411  49,789  —  49,789  —
In-process research and development (indefinite-lived) 16,900  —  16,900  16,900  —  16,900  —
Other (finite-lived) 10,742  (7,805) 2,937  10,399  (6,919) 3,480  10
Total intangible assets(1)
$ 90,222  $ (12,649) $ 77,573  $ 117,370  $ (10,830) $ 106,540   
(1)     The aggregate amortization expense for intangible assets with finite lives is expected to be $2 million during 2021 and $1 million during 2022, 2023, 2024 and 2025.
17.    Property, Plant and Equipment
Property, plant and equipment is as follows:
December 31,
(cost in thousands) 2020 2019
Land $ 52,424  $ 50,129 
Buildings 299,560  279,901 
Building and leasehold improvements 153,333  155,917 
Machinery and equipment 927,075  875,581 
Furniture and fixtures 144,667  133,573 
Construction in progress 21,250  63,814 
1,598,309  1,558,915 
Less accumulated depreciation (1,037,225) (964,089)
Net property, plant and equipment $ 561,084  $ 594,826 
18.    Stock-Based Compensation
Equity Awards
Stock-based compensation, which is generally recognized on a straight-line basis, totaled $22 million, $36 million and $43 million during 2020, 2019 and 2018, respectively. We recognized tax benefits of $5 million, $8 million and $10 million related to stock-based compensation during 2020, 2019 and 2018, respectively.
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The following table summarizes RSU, restricted stock and stock option activity:
RSU or
Restricted Stock 		Stock Options
Number Weighted
Average
Grant Date
Fair Value
Per Share 		Number Weighted
Average
Exercise Price
Per Share
Outstanding as of December 31, 2017 933,464  $51.85 5,069,956  $60.08
Granted 603,111  57.88 33,615  58.15
Forfeited or expired (38,365) 54.07 (352,624) 64.64
Vested/exercised (513,078) 51.58 (161,562) 44.92
Outstanding as of December 31, 2018 985,132  $53.78 4,589,385  $60.25
Granted 1,356,303  32.68 1,192,108  22.47
Forfeited or expired (173,604) 39.57 (351,885) 60.56
Vested/exercised (507,520) 47.72 (48,131) 30.46
Outstanding as of December 31, 2019 1,660,311  $39.88 5,381,477  $52.13
Granted 1,355,975  10.30 975,290  11.06
Forfeited or expired (114,352) 33.74 (603,835) 59.46
Vested/exercised (643,340) 42.23 —  —
Outstanding as of December 31, 2020 2,258,594  $21.76 5,752,932  $44.40
Options exercisable as of December 31, 2020 3,784,647  $58.80
Remaining unvested options outstanding and expected to vest 1,948,602  $16.72
Our stock-based plans provide that RSUs and restricted stock may not be sold or transferred until service-based restrictions have lapsed and any performance objectives have been attained. Generally, upon termination of employment, RSUs and restricted stock which have not vested are forfeited. RSUs granted to executives in 2020, 2019 and 2018 generally vest ratably over 3 years. RSUs granted to one executive in 2020 vest over 5 years. RSUs granted to directors in 2020, 2019 and 2018 vested upon grant. RSUs awarded to directors in 2019 and 2018 (as well as one RSU award to a director in 2020) are subject to a post-vest holding period of 3 years. During 2020, 2019 and 2018, compensation expense related to RSUs of $17 million, $32 million and $30 million, respectively, was included in corporate G&A. The fair value of RSUs that vested during 2020, 2019 and 2018 was $5 million, $14 million and $28 million, respectively. The balance of unamortized RSU expense as of December 31, 2020 was $10 million, which is expected to be recognized over a weighted-average period of 1.4 years.
The exercise price of options represents the closing price of our common stock on the date of grant. The options granted in 2020, 2019 and 2018 generally vest over 3 years and expire 10 years after the grant date. Options granted to one executive in 2020 vest over 5 years. Stock option expense during 2020, 2019 and 2018 included in corporate G&A totaled $5 million, $4 million and $4 million, respectively. The aggregate intrinsic value of stock options exercised during 2019 and 2018 was $0.3 million and $2 million, respectively. There were no stock option exercises during 2020. The balance of unamortized stock option expense as of December 31, 2020 was $6 million, which is expected to be recognized over a weighted-average period of 2.2 years.
The grant date fair value of options and other significant assumptions follow:
January 1 - November 30, 2020 December 31, 2020 January 1 - September 30, 2019 October 1 - December 31, 2019 2018
Weighted average grant date fair value $4.59 $9.05 $7.99 $6.93 $14.87
Expected life of options (in years) 4.6 7.2 5.6 5.4 5.3
Risk-free interest rate 0.4  % 0.5  % 2.6  % 1.7  % 2.7  %
Expected volatility 64.9  % 60.8  % 33.3  % 46.6  % 28.2  %
Expected annual dividend per share $0.00 $0.00 $0.84 $0.40 $0.84
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The computation of the expected volatility assumption used in the Black-Scholes calculations is based on a 50/50 blend of historical and implied volatility.
Information related to options outstanding as of December 31, 2020 follows:
  Options Outstanding Options Exercisable
Range of Exercise Prices Number
Outstanding 		Weighted
Average
Remaining
Contractual
Life (In Years) 		Weighted
Average
Exercise Price
Per Share 		Number
Exercisable 		Weighted
Average
Remaining
Contractual
Life (In Years) 		Weighted
Average
Exercise Price
Per Share
$8.81 - $29.50
2,088,027  9.2 $ 17.27  130,947  8.4 $ 29.03 
$46.07 - $62.50
3,054,457  4.4 56.48  3,043,252  4.4 56.47 
$70.76 - $79.19
610,448  2.3 76.77  610,448  2.3 76.77 
5,752,932  5.9 $ 44.40  3,784,647  4.2 $ 58.80 
As of December 31, 2020, options outstanding had an aggregate intrinsic value of $5 million, and there was no intrinsic value for options exercisable.
During 2020, 2019 and 2018, performance-based award units totaling 1,156,365; 350,532; and 206,598, respectively, were awarded to Section 16 officers. These awards generally vest after a period of 3 years and contain annual performance conditions for each of the 3 years of the vesting period. Under GAAP, performance-based awards are not deemed granted until the performance targets have been established. The performance targets for each year are generally established in the first quarter. Accordingly, only one-third of the units awarded in any given year are deemed to be granted each year of the 3 year vesting periods. During 2020, the following units were granted:
Performance-based Award Units Granted in 2020 Weighted
Average
Grant Date
Fair Value
Per Share
2020 Performance Award Plan 385,455 $9.05
2019 Performance Award Plan 116,844 $9.77
2018 Performance Award Plan 68,866 $10.75
For awards granted under the 2020, 2019 and 2018 performance award plans, the number of units are adjusted at the end of each performance period based on achievement of certain performance targets and market conditions, as defined in the award agreements.
Compensation expense of $1 million and $9 million related to performance-based award units was included in corporate G&A in 2019 and 2018, respectively. Compensation expense related to performance-based award units in 2020 was immaterial. The balance of unamortized compensation expense associated with performance-based award units as of December 31, 2020 was less than $0.1 million, which is expected to be recognized over a weighted-average period of 0.2 years.
Liability Awards
We grant SGI awards in the form of stock units, determined by dividing the target amount by the closing price of our common stock at the grant date. Each stock unit represents the right to receive cash equal to the value of one share upon settlement. SGI awards granted to executives vest and become payable at a rate of one-third of the total award each year. Compensation expense of $25 million, $6 million and $6 million related to SGI awards was included in corporate G&A in 2020, 2019 and 2018, respectively. Liabilities associated with SGI awards were $29 million and $8 million as of December 31, 2020 and 2019, respectively.
During 2020, 2019 and 2018, performance-based awards were awarded to non-Section 16 executives and will be settled in cash. Compensation expense of $3 million, $8 million and $10 million related to these performance-based awards was included in corporate G&A in 2020, 2019 and 2018, respectively. Liabilities associated with these awards were $16 million and $14 million as of December 31, 2020 and 2019, respectively.
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19.    Retirement Plans
DC Plans
Domestic and international DC plans are available to eligible salaried and craft employees. Company contributions to DC plans are based on an employee's eligible compensation and participation rate. We recognized expense of $130 million, $115 million and $150 million associated with contributions to our DC plans during 2020, 2019 and 2018, respectively.
DB Plans
Certain DB plans are available to eligible international salaried employees. Contributions to DB plans are at least the minimum amounts required by applicable regulations. Benefit payments under these plans are generally based upon length of service and/or qualifying compensation.
Net periodic pension expense for our DB Plans included the following components:
  Year Ended December 31,
(in thousands) 2020 2019 2018
Service cost $ 18,129  $ 15,750  $ 17,999 
Interest cost 9,899  19,617  21,820 
Expected return on assets (26,304) (32,645) (38,064)
Amortization of prior service credit (903) (886) (935)
Recognized net actuarial loss 5,806  10,303  8,368 
(Gain) loss on settlement (406) 137,898  21,900 
Net periodic pension expense $ 6,221  $ 150,037  $ 31,088 

The service cost component of net periodic pension expense is presented in “Cost of revenue” and the other components of net periodic pension expense are presented in “Corporate G&A” and "(Gain) loss on pension settlement".
UK Plan
In 2018, we executed a buy-in policy contract with an insurance company to fully insure the benefits of the DB plan in the United Kingdom ("UK plan"). The UK plan was terminated in December 2019 and moved from "buy-in" to "buy-out" status, at which point the remaining benefit obligations were transferred to the insurer and we were relieved of any further obligation. During 2019, we recorded a loss on pension settlement of $138 million, which consisted primarily of unrecognized actuarial losses included in AOCI. The settlement of the plan did not impact our cash position.
During 2018, lump-sum distributions to participants of the UK plan exceeded the sum of the service and interest cost components of net periodic pension cost. As a result, we recorded a loss on partial pension settlement of $22 million.
DB Plan Assumptions
The ranges of assumptions indicated below cover DB plans in the Netherlands, Germany, the Philippines and the UK (2018 only) and are based on the economic environment in each host country at the end of each reporting period. The discount rates for the DB plans were determined primarily based on a hypothetical yield curve developed from the yields on high quality corporate and government bonds with durations consistent with the pension obligations in those countries. The expected long-term rate of return on asset assumptions utilizing historical returns, correlations and investment manager forecasts are established for all relevant asset classes including international equities and government, corporate and other debt securities.
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December 31,
2020 2019 2018
For determining projected benefit obligation ("PBO") at year-end:
Discount rates
0.80-3.50%
1.20-4.75%
1.80-7.25%
Rates of increase in compensation levels
2.25-6.00%
2.25-6.00%
2.25-7.00%
For determining net periodic cost for the year:
Discount rates
1.20-4.75%
1.80-7.25%
1.90-5.50%
Rates of increase in compensation levels
2.25-6.00%
2.25-7.00%
2.25-7.00%
Expected long-term rates of return on assets
1.20-5.60%
1.80-8.20%
1.90-7.00%
We evaluate the funded status of each of our DB plans using the above assumptions and determine the appropriate funding level in light of applicable regulatory requirements, tax deductibility, reporting considerations and other factors. The funding status of the plans is sensitive to changes in long-term interest rates and returns on plan assets, and funding obligations could increase substantially if interest rates fall dramatically or returns on plan assets are below expectations. Assuming no changes in current assumptions, we expect to contribute up to $12 million to our DB plans in 2021, which is expected to be in excess of the minimum funding required. If the discount rates were reduced by 25 basis points, plan liabilities would increase by approximately $57 million.
DB Plan Assets
The following table sets forth the target and actual allocations of plan assets:
  December 31,
2020 Target Allocation 2020 2019
Asset category:
Debt securities
55% - 65%
63  % 60  %
Equity securities
25% - 35%
28  % 31  %
Other
0% - 10%
9  % 9  %
Total 100  % 100  %
Our investment strategy is to maintain asset allocations that appropriately manage risk within the context of seeking adequate returns. Investment allocations are determined by each plan's governing body. Asset allocations may be affected by local regulations. Long-term allocation guidelines are established with a target range allocation for each asset class. Short-term deviations from these allocations may exist from time to time for tactical investment or strategic implementation purposes.
Investments in debt securities are used to provide stable investment returns while protecting the funding status of the plans. Investments in equity securities are utilized to generate long-term capital appreciation to mitigate the effects of increases in benefit obligations resulting from inflation, longer life expectancy and salary growth. While most of our plans may invest in the company's securities, there are no such direct investments at the present time.
Plan assets included investments in common or collective trusts ("CCTs"), which offer efficient access to diversified investments across various asset categories. The estimated fair value of the investments in the CCTs represents the net asset value of the shares or units of such funds as determined by the issuer. A redemption notice period of no more than 30 days is required for the plans to redeem certain investments in CCTs. At the present time, there are no other restrictions on how the plans may redeem their investments.
Debt securities are comprised of corporate bonds, government securities and CCTs with underlying investments in corporate bonds, government and asset backed securities and interest rate swaps. Corporate bonds primarily consist of investment-grade rated bonds and notes, of which no significant concentration exists in any one rating category or industry. Government securities include international government bonds, some of which are inflation-indexed. Corporate bonds and government securities are valued based on pricing models, which are determined from a compilation of primarily observable market information, broker quotes in non-active markets or similar assets.
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Equity securities span various industries and are comprised of common stocks of international companies as well as CCTs with underlying investments in common and preferred stocks. Publicly traded corporate equity securities are valued based on the closing price of an active market or exchange. Inactive securities are valued at the last reported bid price. As of both December 31, 2020 and 2019, direct investments in equity securities were concentrated in international securities.
Other plan assets include guaranteed investment contracts and CCTs. Guaranteed investment contracts are insurance contracts that guarantee a principal repayment and a stated rate of interest. The estimated fair value of these insurance contracts, which are Level 3 assets, represents the discounted value of guaranteed benefit payments. CCTs hold underlying investments primarily in commodities.
The following table delineates the fair value of the plan assets and liabilities of our DB Plans:
December 31, 2020 December 31, 2019
(in thousands) Total Level 1 Level 2 Level 3 Total Level 1 Level 2 Level 3
Assets:
Equity securities:
Common stock $ 5,252  $ 5,252  $ —  $ —  $ 5,346  $ 5,346  $ —  $ — 
CCTs 230,135  —  230,135  —  215,904  —  215,904  — 
Debt securities:
Corporate bonds 532  —  532  —  493  —  493  — 
Government securities 12,036  —  12,036  —  12,962  —  12,962  — 
CCTs 507,691  —  507,691  —  412,416  —  412,416  — 
Other:
Guaranteed investment contracts 20,588  —  —  20,588  19,650  —  —  19,650 
CCTs 51,679  —  51,679  —  43,302  —  43,302  — 
Plan assets measured at fair value, net $ 827,913  $ 5,252  $ 802,073  $ 20,588  $ 710,073  $ 5,346  $ 685,077  $ 19,650 
Plan assets not measured at fair value, net 1,507  590 
Total plan assets, net $ 829,420  $ 710,663 
The following table presents information about Level 3 fair value measurements:
(in thousands) 2020 2019
Balance at beginning of year $ 19,650  $ 374,724 
Actual return on plan assets:
Assets still held at reporting date 2,092  1,609 
Assets sold during the period —  49,524 
Purchases 343  187 
Settlements (1,497) (406,394)
Balance at end of year $ 20,588  $ 19,650 
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The following table presents expected future benefit payments related to our DB Plans:
Year Ended December 31, (in thousands)
2021 $ 21,387 
2022 21,461 
2023 21,677 
2024 22,347 
2025 23,065 
2026 — 2030 125,302 
The following table sets forth the change in PBO, plan assets and funded status of the plans:
December 31,
(in thousands) 2020 2019
Change in PBO:
Benefit obligation at beginning of year $ 748,784  $ 1,020,633 
Service cost 18,129  15,750 
Interest cost 9,899  19,617 
Employee contributions 2,860  3,382 
Currency translation 72,178  (2,794)
Actuarial (gain) loss (1)
58,258  117,549 
Benefits paid (17,224) (27,362)
Divestitures —  (1,669)
Curtailments (6,574) — 
Settlements (16,475) (396,322)
PBO at end of year 869,835  748,784 
Change in plan assets:
Plan assets at beginning of year 710,663  964,289 
Actual return on plan assets 55,819  153,033 
Company contributions 24,752  14,591 
Employee contributions 2,860  3,382 
Currency translation 69,025  (948)
Benefits paid (17,224) (27,362)
Settlements (16,475) (396,322)
Plan assets at end of year 829,420  710,663 
Funded status — (Under)/overfunded $ (40,415) $ (38,121)
Amounts recognized in the Consolidated Balance Sheet:
Pension assets included in other assets $ —  $ 1,349 
Pension liabilities included in other accrued liabilities (647) (2,041)
Pension liabilities included in noncurrent liabilities (39,768) (37,429)
AOCI (pre-tax) $ 161,534  $ 130,619 
Plans with PBO in excess of plan assets:
PBO $ 869,835  $ 78,961 
Plan assets 829,420  39,491 
Plans with ABO in excess of plan assets:
ABO $ 45,757  $ 73,865 
Plan assets 20,588  39,491 
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(1) Actuarial losses are primarily due to assumption changes.
The total ABO for all DB Plans as of December 31, 2020 and 2019 was $793 million and $681 million, respectively.
Multiemployer Pension Plans
In addition to our DB plans discussed above, we participate in multiemployer pension plans for unionized construction and maintenance craft employees. Company contributions are based on the hours worked by employees covered under various collective bargaining agreements and totaled $38 million, $32 million and $30 million during 2020, 2019 and 2018, respectively. We are not aware of any significant future obligations or funding requirements related to these plans other than the ongoing contributions that are paid as hours are worked by plan participants. None of these multiemployer pension plans are individually significant to us. The preceding information does not include amounts related to benefit plans applicable to employees associated with certain contracts with the U.S. Department of Energy because we are not responsible for the current or future funding of these plans.
20.    Other Noncurrent Liabilities
We have deferred compensation plans and other retirement arrangements for executives which generally provide for payments upon retirement, death or termination of employment. As of December 31, 2020 and 2019, the obligations related to these plans totaled $329 million and $338 million, respectively, within noncurrent liabilities. To fund these obligations, we have established non-qualified trusts, which are included in noncurrent assets. These trusts hold life insurance policies and marketable securities. These trusts were valued at $350 million and $341 million as of December 31, 2020 and 2019, respectively. Periodic changes in the value of these trust investments, most of which are unrealized, are recognized in earnings, and serve to mitigate changes to the obligations which are also reflected in earnings.
We maintain appropriate levels of insurance for business risks, including workers compensation and general liability. Insurance coverages contain various retention amounts for which we provide accruals based on the aggregate of the liability for reported claims and an actuarially determined estimated liability for claims incurred but not reported. As of December 31, 2020 and 2019, insurance liabilities of $70 million and $80 million, respectively, were included in noncurrent liabilities.
21.    Leases
The following summarizes lease expense:
Year Ended
December 31, 2020 		Year Ended December 31, 2019
Lease Expense / (Sublease Income) Continuing Operations Discontinued Operations Continuing Operations Discontinued Operations
(in thousands)
Operating lease cost $ 83,938  $ 792  $ 90,591  $ 809 
Finance lease cost
Amortization of right-of-use assets 651  676  1,394  27 
Interest on lease liabilities 23  117  65  2 
Variable lease cost (1)
7,415  —  19,231  — 
Short-term lease cost 92,161  24,900  119,737  43,807 
Sublease income (6,797) (10,278) (8,905) (25,832)
Total lease expense $ 177,391  $ 16,207  $ 222,113  $ 18,813 
(1)Primarily relates to rent escalation due to cost of living indexation and payments for property taxes, insurance or common area maintenance based on actual assessments.

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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Information related to our right-of use assets and lease liabilities follows:
December 31, 2020 December 31, 2019
Lease Assets / Liabilities Balance Sheet Classification Cont Ops Disc Ops Cont Ops Disc Ops
(in thousands)
Right-of-use assets
Operating lease assets Other assets $ 215,134  $ —  $ 259,169  $ — 
Operating lease assets Current assets held for sale —  2,434  13,123  3,259 
Finance lease assets Other assets 400  —  937  — 
Finance lease assets Current assets held for sale —  9,069  —  181 
Total right-of-use assets $ 215,534  $ 11,503  $ 273,229  $ 3,440 
Lease liabilities
Operating lease liabilities, current Other accrued liabilities $ 62,180  $ —  $ 65,961  $ — 
Operating lease liabilities, noncurrent Noncurrent liabilities 176,776  —  219,146  — 
Operating lease liabilities Current liabilities held for sale —  2,434  13,228  3,180 
Finance lease liabilities, current Other accrued liabilities 114  —  906  — 
Finance lease liabilities, noncurrent Noncurrent liabilities —  —  8  — 
Finance lease liabilities Current liabilities held for sale —  8,327  —  191 
Total lease liabilities $ 239,070  $ 10,761  $ 299,249  $ 3,371 
Supplemental information related to our leases follows:
Year Ended
December 31, 2020 		Year Ended
December 31, 2019
Cont Ops Disc Ops Cont Ops Disc Ops
(in thousands)
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases $ 89,649  $ 780  $ 91,308 $ 787
Operating cash flows from finance leases 23  117  65 3
Financing cash flows from finance leases 761  1,365  1,547 25
Right-of-use assets obtained in exchange for new operating lease liabilities 20,471  —  96,984 546
Right-of-use assets obtained in exchange for new finance lease liabilities —  8,663  — 222
Weighted-average remaining lease term - operating leases 6.1 years 4.3 years 6.5 years 4.8 years
Weighted-average remaining lease term - finance leases 2.1 years 5.0 years 2.2 years 3.5 years
Weighted-average discount rate - operating leases 3.04  % 3.47  % 3.34  % 3.50  %
Weighted-average discount rate - finance leases 3.39  % 2.72  % 3.38  % 2.64  %
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The remaining lease payments under our operating and finance leases follows:
Cont Ops Disc Ops
Year Ended December 31, Operating
Leases 		Finance
Leases 		Operating
Leases 		Finance
Leases
(in thousands)
2021 $ 68,649  $ 8  $ 654  $ 2,927 
2022 55,736  55  609  2,906 
2023 41,029  62  554  1,436 
2024 28,211  —  482  821 
2025 20,275  —  324  612 
Thereafter 47,358  —  —  — 
Total lease payments $ 261,258  $ 125  $ 2,623  $ 8,702 
Less: Interest (22,302) (11) (189) (375)
Present value of lease liabilities $ 238,956  $ 114  $ 2,434  $ 8,327 
During 2018, net rental expense amounted to $360 million (including $2 million from discontinued operations).
22.    Derivatives and Hedging
Derivatives Designated as Hedges
As of December 31, 2020, we had total gross notional amounts of $749 million of foreign currency contracts outstanding (primarily related to the Canadian Dollar, Chinese Yuan, British Pound, Euro, Indian Rupee and Philippine Peso) that were designated as hedges. The foreign currency contracts are of varying duration, none of which extend beyond December 2024. There were no commodity contracts outstanding that were designated as hedges as of December 31, 2020.
The fair values of derivatives designated as hedging instruments follows:
  Asset Derivatives Liability Derivatives
(in thousands) Balance Sheet
Location 		December 31, 2020 December 31, 2019 Balance Sheet
Location 		December 31, 2020 December 31, 2019
Foreign currency contracts Other current assets $ 20,004  $ 2,871  Other accrued liabilities $ 4  $ 1,585 
Commodity contracts Other current assets —  10  Other accrued liabilities —  — 
Foreign currency contracts Other assets 2,184  3,757  Noncurrent liabilities 25  4,747 
Total $ 22,188  $ 6,638  $ 29  $ 6,332 

The after-tax amount of gain (loss) recognized in OCI and reclassified from AOCI into earnings associated with derivative instruments designated as cash flow hedges follows:
  After-Tax Amount of Gain
(Loss) Recognized in OCI 		  After-Tax Amount of Gain
(Loss) Reclassified from
AOCI into Earnings
Cash Flow Hedges (in thousands) 2020 2019 2018 Location of Gain (Loss) 2020 2019 2018
Foreign currency contracts $ 19,608  $ 1,043  $ (5,207) Cost of revenue $ 2,382  $ (1,041) $ (4,432)
Commodity contracts (107) 460  —  Cost of revenue (100) 453  — 
Interest rate contracts —  —  —  Interest expense (1,678) (1,049) (1,049)
Total $ 19,501  $ 1,503  $ (5,207) $ 604  $ (1,637) $ (5,481)
Derivatives Not Designated as Hedges
As of December 31, 2020, we also had total gross notional amounts of $228 million of foreign currency contracts and $28 million of commodity contracts outstanding that were not designated as hedges. The foreign currency contracts primarily
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

related to contract obligations denominated in nonfunctional currencies. The gains and losses associated with derivatives not designated as hedges were not material for any period presented.
23.     Other Comprehensive Income (Loss)
    The components of OCI follow:
Year Ended December 31,
  2020 2019 2018
(in thousands) Before-Tax
Amount 		Tax
(Expense)
Benefit 		Net-of-Tax
Amount 		Before-Tax
Amount 		Tax
(Expense)
Benefit 		Net-of-Tax
Amount 		Before-Tax
Amount 		Tax
(Expense)
Benefit 		Net-of-Tax
Amount
OCI:
Foreign currency translation adjustments $ (17,127) $ —  $ (17,127) $ 101,096  $ (35,596) $ 65,500  $ (116,775) $ 16,214  $ (100,561)
Ownership share of equity method investees' OCI (21,837) 3,309  (18,528) (15,630) 3,846  (11,784) 12,118  (3,176) 8,942 
DB plan adjustments (19,392) —  (19,392) 150,427  (44,975) 105,452  (59,920) 7,329  (52,591)
Unrealized gain (loss) on hedges 23,531  (4,634) 18,897  4,734  (1,594) 3,140  1,490  (1,216) 274 
Unrealized gain (loss) on available-for-sale securities —  —  —  —  —  —  1,134  (425) 709 
Total OCI (34,825) (1,325) (36,150) 240,627  (78,319) 162,308  (161,953) 18,726  (143,227)
Less: OCI attributable to NCI 883  —  883  (1,350) —  (1,350) (2,239) —  (2,239)
OCI attributable to Fluor Corporation $ (35,708) $ (1,325) $ (37,033) $ 241,977  $ (78,319) $ 163,658  $ (159,714) $ 18,726  $ (140,988)

The changes in AOCI balances follow:
(in thousands) Foreign
Currency
Translation 		Ownership
Share of
Equity Method
Investees' OCI 		DB
Plans 		Unrealized
Gain (Loss)
on Hedges 		AOCI, Net
Attributable to Fluor Corporation:
Balance as of December 31, 2019 $ (242,950) $ (35,456) $ (99,197) $ (2,270) $ (379,873)
OCI before reclassifications (18,010) (19,076) (22,921) 19,501  (40,506)
Amounts reclassified from AOCI —  548  3,529  (604) 3,473 
Net OCI (18,010) (18,528) (19,392) 18,897  (37,033)
Balance as of December 31, 2020 $ (260,960) $ (53,984) $ (118,589) $ 16,627  $ (416,906)
Attributable to NCI:
Balance as of December 31, 2019 $ (5,051) $ —  $ —  $ —  $ (5,051)
OCI before reclassifications 883  —  —  —  883 
Amount reclassified from AOCI —  —  —  —  — 
Net OCI 883  —  —  —  883 
Balance as of December 31, 2020 $ (4,168) $ —  $ —  $ —  $ (4,168)
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

(in thousands) Foreign
Currency
Translation 		Ownership
Share of
Equity Method
Investees' OCI 		DB
Plans 		Unrealized Gain (Loss) on Hedges AOCI, Net
Attributable to Fluor Corporation:          
Balance as of December 31, 2018 $ (309,800) $ (23,672) $ (204,649) $ (5,410) $ (543,531)
OCI before reclassifications 19,957  (12,304) 4,006  1,503  13,162 
Amounts reclassified from AOCI 46,893  520  101,446  1,637  150,496 
Net OCI 66,850  (11,784) 105,452  3,140  163,658 
Balance as of December 31, 2019 $ (242,950) $ (35,456) $ (99,197) $ (2,270) $ (379,873)
Attributable to NCI:
Balance as of December 31, 2018 $ (3,701) $ —  $ —  $ —  $ (3,701)
OCI before reclassifications (1,350) —  —  —  (1,350)
Amount reclassified from AOCI —  —  —  —  — 
Net OCI (1,350) —  —  —  (1,350)
Balance as of December 31, 2019 $ (5,051) $ —  $ —  $ —  $ (5,051)

(in thousands) Foreign
Currency
Translation 		Ownership
Share of
Equity Method
Investees' OCI 		DB
Plans 		Unrealized
Gain (Loss)
on Hedges 		Unrealized
Gain (Loss)
on Available-
for-Sale
Securities 		AOCI, Net
Attributable to Fluor Corporation:
Balance as of December 31, 2017 $ (211,478) $ (32,614) $ (152,058) $ (5,684) $ (709) $ (402,543)
OCI before reclassifications (98,322) 7,986  (77,209) (5,207) —  (172,752)
Amounts reclassified from AOCI —  956  24,618  5,481  709  31,764 
Net OCI (98,322) 8,942  (52,591) 274  709  (140,988)
Balance as of December 31, 2018 $ (309,800) $ (23,672) $ (204,649) $ (5,410) $ —  $ (543,531)
Attributable to NCI:
Balance as of December 31, 2017 $ (1,462) $ —  $ —  $ —  $ —  $ (1,462)
OCI before reclassifications (2,239) —  —  —  —  (2,239)
Amount reclassified from AOCI —  —  —  —  —  — 
Net OCI (2,239) —  —  —  —  (2,239)
Balance as of December 31, 2018 $ (3,701) $ —  $ —  $ —  $ —  $ (3,701)


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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

The reclassifications out of AOCI follow:
Location in Consolidated
Statement of Operations 		Year Ended December 31,
(in thousands) 2020 2019 2018
Component of AOCI:
Foreign currency translation adjustment Impairment, restructuring & other exit costs $ —  $ (84,286) $ — 
Income tax benefit Income tax expense (benefit) —  37,393  — 
Net of tax $ —  $ (46,893) $ — 
Ownership share of equity method investees' OCI Cost of revenue $ (730) $ (695) $ (1,297)
Income tax benefit Income tax expense (benefit) 182  175  341 
Net of tax   $ (548) $ (520) $ (956)
DB plan adjustments
Various accounts(1)
$ (3,529) $ (146,579) $ (28,730)
Income tax benefit Income tax expense (benefit) —  45,133  4,112 
Net of tax   $ (3,529) $ (101,446) $ (24,618)
Unrealized gain (loss) on hedges:  
Commodity and foreign currency contracts
Various accounts(2)
$ 1,837  $ (1,370) $ (6,540)
Interest rate contracts Interest expense (1,678) (1,678) (1,678)
Income tax benefit Income tax expense (benefit) 445  1,411  2,737 
Net of tax:   $ 604  $ (1,637) $ (5,481)
Unrealized loss on available-for-sale securities Corporate G&A $ —  $ —  $ (1,134)
Income tax benefit Income tax expense (benefit) —  —  425 
Net of tax   $ —  $ —  $ (709)

(1)DB plan adjustments were reclassified to "Corporate G&A" and "Loss on pension settlement".
(2)Gains and losses on commodity and foreign currency derivatives were reclassified to "Cost of revenue" and "Corporate G&A".
24. Discontinued Operations
We expect to complete the sale of the AMECO equipment business, which is reported in Disc Ops, within the first half of 2021. The assets and liabilities of the AMECO business are classified as held for sale. During 2020, we recognized impairment expense of $146 million, of which $12 million related to goodwill, to reduce the AMECO assets to their fair value less cost to sell. The fair value of the AMECO assets were determined using a combination of observable level 2 inputs, including indicative offers and ongoing negotiations for the related assets.
In August 2020, we sold our AMECO equipment business in Jamaica for $18 million and recognized a loss of $1 million. The operations of the AMECO business in Jamaica were included in Disc Ops through the date of sale.

In August 2019, we settled legal matters related to a previously divested business. The resulting gain and all associated legal fees were included in "Other" in the tables below.





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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Disc Ops information follows:
Year Ended December 31, 2020 Year Ended December 31, 2019 Year Ended December 31, 2018
(in thousands) AMECO Other Total AMECO Other Total AMECO Other Total
Revenue $ 215,684  $ —  $ 215,684  $ 260,276  $ —  $ 260,276  $ 253,130  $ —  $ 253,130 
Cost of revenue 193,583  —  193,583  277,420  —  277,420  222,139  —  222,139 
Corporate general and administrative expense 234  13,198  13,432  239  (21,152) (20,913) 282  4,792  5,074 
Impairment of assets held for sale 145,700  —  145,700  —  —  —  —  —  — 
Interest expense (income), net 159  —  159  (341) —  (341) (354) —  (354)
Total cost and expenses 339,676  13,198  352,874  277,318  (21,152) 256,166  222,067  4,792  226,859 
Earnings (loss) before taxes from Disc Ops (123,992) (13,198) (137,190) (17,042) 21,152  4,110  31,063  (4,792) 26,271 
Income tax expense (benefit) 3,957  —  3,957  (3,940) 4,447  507  6,900  (1,064) 5,836 
Net earnings (loss) from Disc Ops $ (127,949) $ (13,198) $ (141,147) $ (13,102) $ 16,705  $ 3,603  $ 24,163  $ (3,728) $ 20,435 
The following summarizes information related to assets and liabilities classified as held for sale:
December 31, 2020 December 31, 2019
(in thousands) AMECO Other Total from Discontinued Operations Other Assets and Liabilities from Continuing Operations Total AMECO Other Total from Discontinued Operations Other Assets and Liabilities from Continuing Operations Total
Accounts and notes receivable, net $41,988 $10,476 $52,464 $64 $52,528 $69,126 $15,925 $85,051 $17,513 $102,564
Contract assets 2,188  —  2,188  —  2,188  3,497  —  3,497  3,779  7,276 
Other current assets 7,098  —  7,098  2,712  9,810  54,116  —  54,116  8,112  62,228 
Current assets held for sale 51,274  10,476  61,750  2,776  64,526  126,739  15,925  142,664  29,404  172,068 
Property, plant and equipment, net 113,080  —  113,080  41,160  154,240  232,792  —  232,792  64,792  297,584 
Goodwill —  —  —  —  —  12,338  —  12,338  9,295  21,633 
Investments —  —  —  5,063  5,063  —  —  —  7,293  7,293 
Other assets 13,788  —  13,788  —  13,788  5,868  —  5,868  12,654  18,522 
Noncurrent assets held for sale (1)
126,868  —  126,868  46,223  173,091  250,998  —  250,998  94,034  345,032 
Total assets held for sale $178,142 $10,476 $188,618 $48,999 $237,617 $377,737 $15,925 $393,662 $123,438 $517,100
Accounts payable $17,355 $ 13  $17,368 $75 $17,443 $24,692 $ —  $24,692 $6,702 $31,394
Contract liabilities 125  —  125  10  135  4,466  —  4,466  25  4,491 
Accrued salaries, wages and benefits 6,042  —  6,042  98  6,140  8,913  —  8,913  919  9,832 
Other accrued liabilities 11,780  —  11,780  327  12,107  9,451  —  9,451  11,562  21,013 
Current liabilities held for sale 35,302  13  35,315  510  35,825  47,522  —  47,522  19,208  66,730 
Noncurrent liabilities held for sale(1)
9,479  —  9,479  —  9,479  4,272  —  4,272  11,320  15,592 
Total liabilities held for sale $44,781 $13 $44,794 $510 $45,304 $51,794 $ —  $51,794 $30,528 $82,322
(1)    Noncurrent assets and liabilities held for sale were classified as current as we expect to complete the sale of the AMECO businesses within the first half of 2021.
    Our cash flow information for 2020, 2019 and 2018 included the following activities related to AMECO Disc Ops:
Year Ended December 31,
(in thousands) 2020 2019 2018
Impairment expense - Disc Ops $ 145,700  $ —  $ — 
Depreciation of fixed assets —  44,295  72,137 
Amortization of stock-based awards 56  123  103 
Capital expenditures (23,430) (68,048) (40,856)

F-46
Table of Contents
FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

25.    Quarterly Financial Data (Unaudited)
(in millions, except per share amounts) First Quarter Second Quarter Third Quarter Fourth Quarter
Year ended December 31, 2020
Revenue $ 4,118.6  $ 4,091.0  $ 3,803.2  $ 3,655.7 
Cost of revenue 4,057.2  4,023.5  3,669.5  3,533.0 
Earnings (loss) from Cont Ops before taxes (228.4) 10.9  52.2  (41.7)
Net earnings (loss) from Cont Ops (161.6) (20.2) 23.4  (67.2)
Amounts attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops (171.1) (26.9) 19.1  (115.0)
Net earnings (loss) from Disc Ops (94.9) 1.9  0.2  (48.3)
Net earnings (loss) $ (266.0) $ (25.0) $ 19.3  $ (163.3)
Basic earnings (loss) per share attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops $ (1.22) $ (0.19) $ 0.14  $ (0.82)
Net earnings (loss) from Disc Ops (0.68) 0.01  —  (0.34)
Net earnings (loss) $ (1.90) $ (0.18) $ 0.14  $ (1.16)
Diluted earnings (loss) per share attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops $ (1.22) $ (0.19) $ 0.14  $ (0.82)
Net earnings (loss) from Disc Ops (0.68) 0.01  —  (0.34)
Net earnings (loss) $ (1.90) $ (0.18) $ 0.14  $ (1.16)
(in millions, except per share amounts) First Quarter Second Quarter Third Quarter Fourth Quarter
Year ended December 31, 2019
Revenue $ 4,133.6  $ 4,146.4  $ 4,628.6  $ 4,408.7 
Cost of revenue 4,070.9  4,577.6  4,537.3  4,348.0 
Earnings (loss) from Cont Ops before taxes (29.0) (511.9) (258.8) (271.8)
Net earnings (loss) from Cont Ops (44.2) (436.1) (754.1) (322.3)
Amounts attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops (68.1) (397.4) (766.6) (293.7)
Net earnings (loss) from Disc Ops (0.8) (16.6) 23.5  (2.5)
Net earnings (loss) $ (68.9) $ (414.0) $ (743.1) $ (296.2)
Basic earnings (loss) per share attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops $ (0.49) $ (2.84) $ (5.47) $ (2.10)
Net earnings (loss) from Disc Ops —  (0.11) 0.17  (0.01)
Net earnings (loss) $ (0.49) $ (2.95) $ (5.30) $ (2.11)
Diluted earnings (loss) per share attributable to Fluor Corporation:
Net earnings (loss) from Cont Ops $ (0.49) $ (2.84) $ (5.47) $ (2.10)
Net earnings (loss) from Disc Ops —  (0.11) 0.17  (0.01)
Net earnings (loss) $ (0.49) $ (2.95) $ (5.30) $ (2.11)
F-47
Table of Contents
FLUOR CORPORATION

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Significant items affecting 2020 earnings included the following:
•Charges totaling $298 million for impairments of goodwill, intangible assets, investments and other assets during the first quarter of 2020.
•Charges totaling $55 million for current expected credit losses associated with Energy & Chemicals clients during the first quarter of 2020.
•Charges totaling $52 million for project positions due to COVID-19 related schedule delays and associated cost growth during the first quarter of 2020.
•Charges totaling $100 million and $46 million for impairments of assets held for sale (included in Disc Ops) during the first and fourth quarters of 2020, respectively.
Significant items affecting 2019 earnings included the following:
•Charges totaling $31 million from the resolution of certain close-out matters with a customer during the first quarter of 2019.

•Charges totaling $61 million, $179 million and $20 million from late design changes, schedule-driven cost growth including liquidated damages, and subcontractor negotiations on a lump-sum, offshore project during the first, second and fourth quarters of 2019, respectively.

•Charges totaling $26 million and $109 million, including the settlement of client disputes, as well as cost growth related to certain close-out matters, on three lump-sum, gas-fired power plant projects during the first and second quarters of 2019, respectively.

•Charges totaling $26 million from the write-off of pre-contract costs during the second quarter of 2019.

•Charges totaling $87 million from schedule-driven cost growth and client and subcontractor negotiations on two lump-sum, downstream projects and scope reductions on a large upstream project during the second quarter of 2019.

•Charges totaling $55 million and $78 million from late engineering changes and schedule-driven cost growth, as well as negotiations with clients and subcontractors on pending change orders, for several infrastructure projects during the second and fourth quarters of 2019, respectively.

•Charges totaling $4 million, $57 million and $21 million for late engineering changes and cost growth related to the Radford project during the first, second and third quarters of 2019, respectively.

•Gains of $13 million and $18 million resulting from the favorable resolution of a longstanding customer dispute during the second and third quarters of 2019, respectively.

•Charges totaling $59 million for cost growth on the Warren project during the third quarter of 2019.

•Charges totaling $546 million and $185 million related to establishing a valuation allowance against deferred tax assets during the third and fourth quarters of 2019, respectively.

•Impairment, restructuring and other exit costs totaling $27 million, $27 million, $334 million and $145 million during the first, second, third and fourth quarters of 2019, respectively.

•Loss on pension settlement of $138 million during the fourth quarter of 2019.

•Gain of $89 million related to the settlement agreement with Westinghouse during the fourth quarter of 2019.
F-48
Exhibit 10.24
RETIREMENT AND RELEASE AGREEMENT
Carlos M. Hernandez (“Employee”) and Fluor Enterprises, Inc. (“FEI”) have reached the following Retirement and Release Agreement (“Agreement”) in connection with Employee’s separation from FEI and Fluor Corporation (“Company”). In this Agreement, the term “Parties” refers to Employee and FEI.
Recitals
A.     The Parties have mutually agreed that Employee will continue to serve as Chief Executive Officer (“CEO”) and a director on the Board of Directors (the “Board”) of the Company through December 31, 2020 (the “Transition Date”), after which Employee will cease to serve as CEO, will resign as a director on the Board, and will provide transition services to the Company from January 1, 2021 through June 30, 2021 (“Transition Period”), with employee retiring effective July 1, 2021 (the “Retirement Date”).
B.     The Parties have voluntarily agreed to enter into this Agreement which sets forth the complete understanding between Employee and Company regarding the commitments and obligations of the Parties.
Agreement
    In consideration of the foregoing premises and for other good and valuable consideration, the sufficiency and receipt of which are acknowledged, Company and Employee agree as follows:
1.Payments and Other Consideration. This Agreement shall become effective on the date that it is signed by both Employee and FEI, provided that Employee does not subsequently revoke the Agreement within the time period set forth in Paragraph 4. Employee shall continue to serve as CEO and as a director on the Board through the Transition Date, for which he will continue to receive the same compensation and benefits as were in effect prior to execution of this Agreement. Employee shall cease to serve as CEO after the Transition Date and, provided that Employee resigns from the Board as a director on the Transition Date, FEI agrees to employ Employee during the Transition Period in a non-executive, non-officer status as Special Advisor to the Chairman and CEO and to make the payments, accommodations and other considerations as provided for below in Paragraphs 1a, 1b, 1c, 1d, 1e, 1f, 1g and 1h, provided that: (i) Employee provides the Transition Services through the Retirement Date (other than on account of death or disability) and Employee does not accept or begin employment or any engagement with a Competitive Business during the Transition Period; (ii) Employee signs and delivers to the Company the Long Term Incentives Vesting/Forfeiture Agreement (“LTI Vesting/Forfeiture Agreement”) in the form attached as Exhibit 2 to this Agreement promptly after the Transition Date; and (iii) with respect to the benefits and payments provided for in Paragraphs 1b, 1d, 1f, 1g and 1h, Employee signs and delivers to the Company the Supplemental Release and Waiver of Claims in the form attached as Exhibit 1 to this Agreement (“Supplemental Release”) within the time period set forth therein and does not subsequently revoke it within the time period set forth therein. Employee understands that the Company will deduct from any payments specified herein applicable withholding taxes and other


deductions the Company is required by law to make from wages and other payments to employees. Employee further understands that the payments and benefits set forth in this Paragraph 1 are all the Employee is entitled to receive from the Company in connection with his separation from service, except for those amounts described in Paragraph 6 and 25 to which Employee may be entitled.

a.Transition Services. During the Transition Period, Employee shall assist the Company in the orderly transition of Employee’s knowledge, duties, and responsibilities to others in the Company, performing such duties as the Company’s Chief Executive Officer or Chairman shall reasonably determine from time to time (including but not limited to, providing advice, sub-certifying the disclosures made in the Company’s 2020 Annual Report on Form 10-K, cooperating with requests for assistance, etc.), and making himself reasonably available for any future assistance related to any inquiry, investigation, subpoena, administrative procedure, arbitration, claim, litigation or dispute (collectively, the “Transition Services”). The Company agrees to continue Employee’s employment during the Transition Period in a non-executive and non-officer status provided that Employee complies with all obligations under this Agreement, complies with Fluor’s Code of Business Conduct & Ethics and other Company policies, and does not perform services, directly or indirectly, in any capacity (whether as an employee, partner, consultant, agent or other arrangement) with any other company engaged in or planning to become engaged in business that directly or indirectly competes with the Company and/or its affiliates and/or parent corporation (“Competitive Business”), regardless of the location of the Competitive Business. The Parties also agree that during the Transition Period Employee may provide Transition Services remotely (for example, from home), as reasonably directed by the Company’s CEO or Chairman, or their respective designees. Employee’s services for the Company during the Transition Period will be at a level that results in a “separation from service” under the Fluor 409A Executive Deferred Compensation Program and for purposes of Section 409A of the Internal Revenue Code (the “Code”) on the Transition Date.

(i)During the Transition Period Employee shall be paid at his normal base salary as in effect immediately prior to the Transition Date (“Base Salary”), without reduction or pro-ration based on hours worked, and shall be eligible to participate in all health, welfare, life insurance and similar plans and programs generally available to non-executive employees of the Company in accordance with the terms and conditions of such plans and programs, as amended from time to time. Other than as expressly provided in this Agreement, Employee shall not be entitled to receive benefits generally provided to executives or officers of the Company following the Transition Date, including but not limited to perquisites, allowances, club memberships, or severance payments under any severance policy or plan. The Parties agree that as of the Transition Date, the Change in Control Agreement between the Company and the Employee dated June 30, 2010 and the Amended and Restated Change in Control Agreement dated May 1, 2019 are hereby terminated with immediate effect and Employee disavows any right or claim to any benefits or compensation under that agreement.
Retirement and Release Agreement-Page 2


(ii)The Parties agree that if during the Transition Period Employee fails to provide the Transition Services (other than as a result of death or disability), breaches Fluor’s Code of Business Conduct & Ethics or other Company policies, or if the Company independently determines that Employee has accepted or began employment or engagement with a Competitive Business during the Transition Period, Employee shall be immediately terminated as of such date (“Termination Date”) and shall not be entitled to receive the payments and benefits set forth in this Agreement, other than any amounts that have been paid or vested prior to the Termination Date pursuant to Paragraph 1a, 1c, and 1e. Notwithstanding the foregoing, Employee will remain eligible to receive the consideration set forth in Paragraph 1f, provided Employee signs and delivers to the Company the LTI Vesting/Forfeiture Agreement and the Supplemental Release without subsequently revoking it within the time period set forth therein. For clarity, and as set forth in Paragraph 1f, any long term incentive awards granted in 2020 shall be forfeited and shall not continue to vest if Employee is terminated before February 22, 2021.

b.Separation Payment. Subject to the clawback provision set forth below, Employee will receive a one-time, lump sum payment of One Million Seven Hundred Twenty Five Thousand Dollars, gross ($1,725,000 USD) (the “Separation Payment”), which is equal to eighteen months of Employee’s current base salary, conditioned on Employee’s compliance with all obligations under this Agreement. The Separation Payment shall be made no later than December 31, 2020, provided this Agreement becomes effective as set forth in Paragraph 4. Notwithstanding the foregoing, Employee will be obligated to repay the Company the full amount of the Separation Payment if Employee: (i) fails to provide Transition Services through the end of the Transition Period, (ii) competes against the Company during the Transition Period, or (iii) does not sign the Supplemental Release, attached as Exhibit 1 to this Agreement, at the end of the Transition Period.

c.Fiscal Year 2020 Bonus. Employee will be eligible to receive a bonus under the Fluor Corporation 2017 Performance Incentive Plan (“Incentive Plan”) for the time period covering January 1, 2020 to December 31, 2020. Such bonus shall be in an amount to be determined by the Board or under the Board’s delegated authority by the Organization and Compensation Committee of the Board (the “Organization and Compensation Committee”). Employee’s bonus will be based on (i) Employee’s target annual bonus percentage, and (ii) actual achievement of the performance measures, both as set by the Organization and Compensation Committee at its September 2020 meeting, subject to any adjustment applicable to executive officers generally. Any earned bonus will be paid to the Employee at the same time annual bonuses are paid to other employees in the ordinary course in 2021.

d.Fiscal Year 2021 Bonus. Employee will receive a prorated bonus under the Incentive Plan in the amount of Eight Hundred Sixty-Two Thousand Five Hundred Dollars, gross ($862,500 USD) if Employee provides Transition Services through the
Retirement and Release Agreement-Page 3

end of the Transition Period and complies with all obligations under this Agreement. The bonus referenced in this Paragraph 1d will be paid to the Employee within two weeks following the expiration of the revocation period set forth in the Supplemental Release, attached as Exhibit 1 to this Agreement. Apart from the amounts set forth in Paragraph 1c and this Paragraph 1d, the Parties agree that the Employee shall not be eligible for any future bonus payments.

e.Retention Payment. Employee will receive the entirety of the outstanding retention payment set forth in the Special Retention Award dated November 14, 2019, in the amount of One Million Seven Hundred Fifty Thousand Dollars, gross ($1,750,000 USD) (“Retention Award”). The Retention Award shall be paid not later than December 31, 2020, provided this Agreement becomes effective as described in Paragraph 4.

f.Long Term Incentives. For the purpose of Employee’s Restricted Stock Units (“RSUs”), Non-Qualified Stock Options (“Stock Options”), Performance Based Restricted Stock Units, and Value Driver Incentive (“VDI”) Awards (collectively, “Long Term Incentives”), and subject to the terms and conditions set forth in the applicable incentive plans and agreements, Employee’s separation of employment on the Retirement Date or Termination Date will be deemed to be a qualifying retirement, provided that this Agreement, the Supplemental Release, and the LTI Vesting/Forfeiture Agreement are all executed by Employee and become effective, with the following results:
(i)Long Term Incentives granted to Employee in 2020 shall continue to vest and be payable in accordance with their terms on the dates set out in the awards if Employee remains employed through February 22, 2021. For clarity, the Long Term Incentives granted to Employee in 2020 shall be forfeited and shall not continue to vest if Employee’s employment with the Company ends before February 22, 2021.
(ii)Long Term Incentives granted to Employee at least one year prior to either the Retirement Date or the Termination Date shall continue to vest and continue to be payable in accordance with their terms on the dates set out in the awards notwithstanding such termination.
(iii) The Parties agree that Employee will not be eligible to receive any new Long Term Incentives in 2021 or in the future.
g.Consulting Services. if Employee provides Transition Services through the end of the Transition Period, effective as of the Retirement Date, Employee’s status as an employee shall terminate, and Employee shall provide services as a non-exclusive consultant to the Company for a period of one year ending June 30, 2022 (the “Consulting Period”). The Parties shall cause a consulting agreement to be issued after the Retirement Date in the form attached as Exhibit 3 to this Agreement. In no event shall the services requested of Employee during the Consulting Period require performance that exceeds 20% of the average level services that Employee performed in the 36 months preceding the Transition Date. As consideration for
Retirement and Release Agreement-Page 4

actual services rendered and/or for Employee’s continuing agreement to remain available for assignments on an “on-call” basis, the Company shall pay Employee, or caused to be paid, One Hundred Twenty Five Thousand Dollars, gross ($125,000 USD) on a quarterly basis, in arrears, during the Consulting Period.

h.Memberships. If Employee provides Transition Services through the end of the Transition Period, Employee will retain his membership in the American Airlines ConciergeKey program and the AVIS Chairman’s Club through the end of the Consulting Period, at which time Employee shall execute such documents as may be necessary to relinquish such memberships. Employee shall transfer all other Company memberships held in his name to the Company by no later than January 1, 2021.

i.Time Off With Pay (“TOWP”). All accrued and unused TOWP will be included in Employee’s final pay, and will be paid out on the next regular pay date following his last day of employment with the Company.

j.The benefits and payments described above reflect any and all payments and benefits to which Employee may be entitled to receive under any contractual requirements as well as under the Company’s Executive Severance Policy, and are not intended to be in addition to, or duplicative of, any contractual entitlements or the Company’s Executive Severance Policy. Employee understands and agrees that he will receive no further wages, salary, notice of termination or pay in lieu of notice, severance pay, separation pay, vacation pay, bonuses, commissions, expenses, allowances, incentive payments, stock or cash awards, perquisites, or other similar payments, remuneration or benefits from the Company (or any of its current and former parent companies, subsidiaries, affiliates and related companies) other than those expressly set out in this Agreement.


2.Company Obligations Contingent on Release of Claims. Employee understands and agrees that Employee is not entitled to any post-employment benefits and payments provided for in Paragraphs 1a, 1b, 1c, 1d, 1e, 1f, 1g and 1h unless and until this Agreement, the Supplemental Release attached as Exhibit 1 and the LTI Vesting/Forfeiture Agreement attached as Exhibit 2 all become effective and irrevocable (if applicable) and Employee complies with all obligations and conditions set forth in this Agreement. Employee agrees that upon the receipt of the compensation provided for under Paragraph 1, Employee will have been paid in full for any/all compensation he claims to be owed by the Company with respect to services through the Transition Period (or the Consulting Period, as applicable), including, but not limited to, salary, wages, commissions, bonuses, or any other compensation, and disavows any right or claim to any additional compensation other than that expressly set forth herein pursuant to this Agreement, to which he becomes entitled as set forth herein.


3.Complete Release. Subject to Paragraph 9 in this Agreement, Employee, on his own behalf and on behalf of his heirs, executors, administrators, beneficiaries, representatives,
Retirement and Release Agreement-Page 5

successors and assigns, and all others connected with or claiming through Employee, hereby releases and forever discharges the Company, and its current and former parent companies, subsidiaries, affiliated companies, related companies and joint ventures and each of their respective current and former officers, directors, board members, shareholders, affiliates and controlling person(s) (if any), employees, attorneys, representatives, predecessors, successors, assigns, divisions, co-employers, vendors, contractors and all other persons acting by, through, under, or in concert with any of them (collectively “Releasees”) from any and all claims, charges, complaints, lawsuits, liabilities, obligations, promises, agreements, damages, actions, causes of action, rights, demands, costs, losses, debts and expenses, injuries and grievances of any and every kind. Said release includes, but is not limited to, a full release of any and all claims for punitive damages, attorneys’ fees, injunctive relief, declaratory relief, equitable relief, loss of wages, loss of other employment, back pay, front pay, notice pay, severance pay, liquidated damages, compensatory damages, personal injury, emotional distress, mental anguish, libel, slander, defamation, vacation pay, sick pay, pension contributions or benefits, medical or health benefits, short or long term disability benefits, and any other employee benefits; and any and all claims and demands of any other kind and nature whatsoever, foreseen, unforeseen, or unforeseeable, now known or which may hereafter be discovered relating to his employment with and/or the cessation of his employment with the Company, or to any event, act or omission that has occurred as of the date this Agreement is executed, and includes, but is not limited to, to the fullest extent allowed by law, all liability arising from:
•Title VII of the Civil Rights Acts of 1964;
•the Americans with Disabilities Act of 1990;
•the Family and Medical Leave Act;
•Genetic Information Nondiscrimination Act of 2008
•the Fair Labor Standards Act;
•Sections 1981 through 1988 of Title 42 of the United States Code;
•the Age Discrimination in Employment Act of 1967;
•the Older Workers Benefit and Protection Act of 1990;
•the Uniformed Services Employment and Reemployment Act of 1994;
•the Employee Retirement Income Security Act of 1974;
•the Health Insurance Portability and Accountability Act;
•the Occupational and Safety Health Act of 1970;
•the Worker Adjustment and Retraining Notification Act;
•the Equal Pay Act;
•Executive Orders 11246 and 11141;
•the Rehabilitation Act of 1973;
•any and all local, municipal, state, or federal statutes, regulations or ordinances;
•any and all claims arising under state or federal common law;
•any and all claims arising under any other law; and
Retirement and Release Agreement-Page 6

•any claims for attorneys’ fees or costs.

4.Waiver of ADEA Claims. The release set forth above includes a waiver of rights and claims which Employee may have arising under the Age Discrimination in Employment Act of 1967 (Title 29, United States Code, Section 621, et seq.) (“ADEA”). In compliance with the Older Workers Benefit and Protection Act of 1990:
a.Employee is advised to consult with an attorney before accepting this Agreement and waiving his rights and claims under the ADEA. Employee understands that by signing this release, he waives his rights and/or claims under the ADEA.
b.Review period. Employee acknowledges that he has been given a period of up to twenty-one (21) days following the delivery date of this Agreement to review and consider this Agreement and to consult with an attorney, accountant and/or other advisors before signing and that the actual time he has taken for such purposes was adequate for all appropriate consultations. Any changes in this Agreement, whether material or immaterial, do not restart the running of the 21-day period.
c.Revocation period. Employee understands that he has a period of seven (7) days, commencing with the day after the date of his signature on this Agreement, to revoke this agreement. To revoke, Employee must provide written notice to Chief Human Resources Officer, Stacy Dillow. Such written notice must be received no later than 11:59 pm (CST) on the seventh day after Employee signs this Agreement.
d.This Retirement and Release Agreement will not be effective or enforceable until Employee has returned the fully executed Agreement and the seven day revocation period has expired (“Effective Date”). If Employee revokes this Agreement, it shall not be effective or enforceable. Further, if this Agreement is revoked, Employee shall not be entitled to receive the payments and accommodations described in Paragraph 1, other than the payment of accrued and unused TOWP as provided for in Paragraph 1i, and any outstanding stock based awards shall be governed by the terms of the applicable award agreements.
5.Knowing and voluntary waiver of unknown claims. Employee agrees and acknowledges that he may hereafter discover facts different from, or in addition to, those he now believes to be true with respect to any or all of the claims or demands herein released. Nevertheless, the Company and Employee agree that the release set forth above shall be and will remain effective in all respects, notwithstanding the discovery of such different or additional facts.

6.Release Inapplicable to Certain Benefits. This Agreement does not include a release of Employee's right, if any, to retirement benefits under the terms of the Company's standard retirement plans and programs or to compensation Employee has deferred under the Fluor 409A Executive Deferred Compensation Program. Employee’s right to such benefits, where applicable, shall continue to be governed by and subject to the terms and conditions set out in the applicable plans, programs, and agreements. Employee is also not waiving any rights Employee may have to seek continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA),
Retirement and Release Agreement-Page 7

benefits under applicable workers’ compensation and/or unemployment compensation statutes and/or the right to pursue claims which by law cannot be waived by signing this Agreement.

7.Non-Release of Future Claims. This Agreement does not waive or release any rights or claims that arise after the date the Employee signs this Agreement. In addition, the Company and Employee acknowledge and agree that the release set forth in this Agreement does not include any claims Employee may have against the Company for its failure to comply with or breach of any provision in this Agreement.

8.No Pending Claims/Lawsuits. Employee represents that he has no pending complaints, actions, charges, or claims of any nature (on his own behalf or in conjunction with any other person or entity) against the Releasees based on, or related to, any events or actions that occurred prior to the execution of this Agreement, and that Employee is not currently aware of facts that would support any such claim. The Parties furthermake the following representations: (a) Employee represents that he has no knowledge of any unreported conduct by or on behalf of the Company that in his view is or may be inconsistent with applicable law, regulation, or Company standards of conduct and compliance; and (b) Company represents that it has no knowledge of any conduct by Employee that in its view is or may be inconsistent with applicable law, regulation, or Company standards of conduct and compliance.

9.Protected Rights. Notwithstanding what is stated in Paragraphs 8, 12, 13, 14, 15, 16, 17, 19 and 25, or any other provision in this Agreement or the attached Exhibits, nothing in this Agreement or in the Exhibits thereto prohibits or restricts Employee from either filing charges/complaints/inquiries with, or providing information to, any federal, state or local governmental agency or participating in a proceeding before any governmental agency responsible for the enforcement of any local, state, or federal law. However, Employee understands and agrees that, except as set forth in the following subparagraph, he will not be entitled to any financial recovery or non-monetary relief from any judgment, decision, or award upon any claim released by him regardless of who filed or initiated any such complaint, charge, or proceeding.
In addition, nothing in this Agreement prohibits Employee from: (i) reporting possible violations of federal law or regulations, including any possible securities laws violations, to any governmental agency or entity, including but not limited to, the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress, Occupational Health and Safety Administration, or any agency Inspector General; (ii) making any other disclosures or providing information that is protected under the whistleblower provisions of federal law or regulations; or (iii) otherwise fully participating in any whistleblower programs, including the right to receive an incentive award authorized under federal statute or regulation for information provided to the Securities & Exchange Commission or any other federal regulatory or law enforcement agency.
10.Non-Admission of Wrongdoing. By making this Agreement, neither the Company nor the Employee admits that they have done anything wrong.
Retirement and Release Agreement-Page 8


11.Other Officer / Director Positions. Effective as of the Transition Date, Employee shall be deemed to have resigned from any officer or director positions or trusteeships Employee holds with the Company, its parent companies and their respective subsidiaries, joint ventures, or related entities and agrees to execute such documents as may be necessary to give effect to such resignations.

12.Company Property and Company Resources. Employee agrees to return and deliver to the Company on or before the Retirement Date all Company property, including but not limited to, any and all hard copy and/or electronic documents, records, notebooks, reports, blueprints, manuals, etc. downloaded by him or provided to him by the Company, and all documents, materials of a secret, confidential, proprietary, or attorney-client privilege nature relating to the Company’s business and which are in his possession or under his control, and to maintain the confidentiality of such materials thereafter. Employee understands and agrees that his failure to comply with the provisions of this Paragraph 12 shall constitute a breach of this Agreement. Notwithstanding the foregoing, the Company agrees to permit Employee to retain his assigned Company iPhone and iPad and mobile hot spot; provided however that Employee understands and agrees that such equipment shall be wiped clean by appropriate Company personnel consistent with Company policy and practice. Employee understands that the Company will make a forensic copy of the contents of such equipment to comply with litigation hold obligations prior to having the equipment wiped clean. Employee agrees to cooperate with the Company’s efforts to make such forensic copies.

Additionally, the Company will allow Employee to remotely utilize the services of Employee’s current administrative assistant (or the services of another designated administrative assistant if Employee’s current assistant is no longer employed by the Company) to provide secretarial services to Employee up to four hours per week through the end of the Consulting Period.

13.Consequences of Employee Breach of Promises. If Employee files a lawsuit based on legal claims that he has released, or otherwise breaches this Agreement, Employee understands and agrees that the Company will be entitled to assert all rights and remedies, in law and in equity, that it may be entitled to as a result of any such breach.

14.Confidential Agreement. Employee promises that until the Company files this Agreement with the Securities and Exchange Commission, he will keep the terms, amounts and fact of this Agreement confidential, and promises not to disclose any information about this Agreement to anyone other than his spouse, attorney, financial or tax advisor, or senior members of the Company's Legal or Human Resources departments. Before Employee tells his spouse or attorney, financial or tax advisor anything about this Agreement, he will inform them of this confidentiality clause and have them agree to follow it. Nothing in this Agreement restricts Employee from discussing this Agreement, or its underlying facts or circumstances, with any governmental agency. If this Agreement is sought by court order or otherwise compulsion of law, Employee will promptly provide Company and its counsel with
Retirement and Release Agreement-Page 9

sufficient notice in advance of such proposed disclosure to enable the Company to be heard with respect to any such disclosure.

15.Confidential Information. Employee understands and agrees that in the course of Employee's employment with the Company, Employee has acquired confidential information and trade secrets concerning the Company's operations such as, but not limited to, the Company’s existing and prospective customers, suppliers, sales process, information pertaining to its customers and suppliers, the Company’s future plans and its methods of doing business. Employee understands and agrees it would be extremely damaging to the Company if Employee disclosed such information to a competitor or made it available to any other company. Employee understands and agrees that such information has been divulged to him in confidence and he understands and agrees that he will keep such information secret and confidential unless disclosure is required by court order or otherwise by compulsion of law.

In view of the nature of Employee’s employment and the information and trade secrets, which Employee has received during the course of his employment, Employee also agrees that the Company would be irreparably harmed by any violation, or threatened violation of the agreements in this paragraph and that, therefore, the Company shall be entitled to injunctive relief, including any temporary restraining order, preliminary and/or permanent injunction prohibiting him from any violation or threatened violation of such agreements, without waiving any other rights or claims that the Company may have to pursue in law or equity. Employee understands and agrees that confidential information developed by him in the course of his employment by the Company shall be subject to the terms and conditions of this Agreement as if the Company furnished the same confidential information to Employee. As noted above in Paragraph 9, this Agreement does not limit Employee from providing any documents or information to any governmental agency, including the U.S. Securities and Exchange Commission, as part of a whistleblower action and/or a report of possible violations of any federal securities law.

Under the federal Defend Trade Secrets Act of 2016, Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigation a suspected violation of law; or (b) is made to Employee’s attorney in relation to a lawsuit for retaliation against Employee for reporting a suspected violation of law; or (c) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

16.Non-Disparagement. Employee agrees that he will not take any action or make or cause to be made any false or defamatory statements, written or oral, that disparage, are inimical to, are critical of, or damage the reputation of, or that otherwise work in any way to the detriment of, or which disrupts or impairs the Company’s normal operations, or that may be potentially embarrassing to the Company or any of its past or present affiliates, subsidiaries, agents, officers, directors, shareholders, employees, representatives or agents. This paragraph is intended to apply to any false or
Retirement and Release Agreement-Page 10

defamatory statements that may be harmful to professional reputation or personal reputation or character. The term “statements” is intended to extend to all forms of communications, including but not limited to verbal, written, e-mails, chat rooms, instant messaging, and all other forms of electronic communication. Further, if a prospective employer of Employee contacts the Company’s employment verification representative or service, such person or service will verify dates of employment and last position held, and will only disclose or verify any additional information that Employee authorizes, in writing, the Company to provide.

17.Authorized Disclosures. Nothing in Paragraphs 12, 13, 14, 15, 16, and 25, or any other provision in the Agreement or exhibits thereto, shall prevent Employee or the Company from responding truthfully and accurately to any inquiry or request for information when required by court order, a government investigation or otherwise by compulsion of law. Except to the extent a disclosure without notice to the Company is permitted under the circumstances described in Paragraph 9 above, if any inquiry or request for information is required by court order or compulsion of law, Employee will provide the Company with commercially reasonable adequate notice in advance of such proposed disclosure to enable the Company to be heard with respect to any such disclosure.


Employee shall notify:
Fluor
Attention: John Reynolds, Chief Legal Officer
6700 Las Colinas Blvd.
Irving, TX 75039

In the event of a material breach or threatened material breach of Paragraphs 12, 14, 15 and 16 the Company, in addition to its other remedies at law or in equity, shall be entitled to injunctive or other equitable relief in order to enforce or prevent any violations of such paragraphs (without posting a bond or other security).
18.Section 409A.
a.It is the intention of the Parties that, to the fullest extent permitted by applicable law, payment of all benefits pursuant to Paragraph 1 of this Agreement shall be exempt from Section 409A of the Internal Revenue Code, as amended (the “Code”) and the regulations promulgated thereunder (“Section 409A) due to (i) the involuntary termination exception as set forth in Section 1.409A-1(b)((9)(iii) of the final regulations issued under Section 409A or such other exemption as may apply; (ii) the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the final regulations issued under Section 409A; or (iii) such other exemption as may apply.
b.Notwithstanding the foregoing, to the extent any payments under this Agreement are subject to (and not exempt from) Section 409A, including payments under Paragraph 1, it is intended that such payments will comply with Section 409A as amounts
Retirement and Release Agreement-Page 11

payable on the earlier of a “fixed schedule” in accordance with Section 1.409A-3(i)(1)(i) of the final regulations issued under Section 409A, or a “separation from service” as set forth in Section 1.409A-1(h) of the final regulations issued under Section 409A, such that no portion of the payments will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply.
c.Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the final regulations issued under Section 409A.
d.This Paragraph 18 is intended to comply with the requirements of Section 409A of the Code so that none of the payments and benefits to be provided hereunder will be subject to either (1) the six (6) month delay which may otherwise be required with respect to payments of deferred compensation to “specified Executives” as defined in Section 409A, and (b) any additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply. The Parties agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Employee under Section 409A. Notwithstanding the foregoing, in the event that it is determined that the payments provided under Paragraph 1 of this Agreement are deferred compensation that are payable pursuant to a separation from service, then such payments will be delayed for six months in accordance with the six month delay rules applicable to the Company’s other nonqualified deferred compensation plans. Neither the Company nor its affiliates shall have any liability to Employee based in whole or in part on a failure to comply with the requirements of Section 409A.
e.Employee understands and agrees that the Company offers no opinion on the taxability of any payments under this Agreement. Employee further agrees that he is solely responsible for the payment of all taxes and for the penalties and interest owing or determined to be owed by any appropriate taxing authority and that he will indemnify the Company and the Released Parties for the same.
19.Assistance in Disputes/Litigation. Employee agrees to make himself reasonably available for any future assistance related to any inquiry, investigation, claim, subpoena, administrative proceeding, arbitration, litigation, or dispute (collectively “Litigation”) involving the Company, its subsidiaries, joint ventures, or related entities as may be requested by the Company. Among other things, with reasonable advance notice, Employee will meet with the Company’s representatives and attorneys at mutually convenient times and locations to prepare for such Litigation and will appear and participate in providing evidence (written or oral testimony) in any pending or future Litigation. If Employee is called as a witness by the Company to give testimony in any legal matter, Employee understands that Employee is to answer proper questions truthfully. For Employee’s involvement and assistance when he is neither employed by the Company or under a consulting services agreement, the Company agrees to pay Employee’s reasonable out-of-pocket expenses, and to the extent permitted by law, regulation or applicable rules of Court, lost earnings incurred directly as a result of such
Retirement and Release Agreement-Page 12

assistance calculated at a rate of $552 (USD) per hour less required deductions. Any compensation is not, and shall not be, in any way contingent upon the content of Employee’s testimony in the course of any Litigation matter nor shall the compensation in any way be contingent on the outcome or disposition of any such matter.

20.Modifications of Agreement. This Agreement can only be modified in writing and that writing must be signed by both Employee and an authorized representative for the Company.

21.Headings and Interpretation of Agreement. Headings in this Agreement are inserted for reference and convenience only and are not a part of this Agreement. This Agreement will be interpreted in accordance with the plain meanings of its terms and not strictly for or against either of the Parties. The Parties agree that any ambiguities will not be construed solely against the drafting party and that any rule of law or decision that would require interpretation of any claimed ambiguities in this Agreement against the party that drafted it has no application and is expressly waived. Additionally, no course of conduct or failure or delay in enforcing the provisions of this Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this Agreement or any provision hereof. Employee acknowledges that, in signing this Agreement, Employee does not rely and has not relied upon any representation or statement not set forth in this Agreement with regard to the subject matter, basis, or effect of this Agreement. Employee has carefully read and understands this Agreement and had the opportunity to be/is represented by counsel.


22.Applicable Law. This Agreement shall be governed by and construed and enforced under Texas law, excluding the provisions thereof which refer to the laws of another jurisdiction. The Parties irrevocably agree to submit to the jurisdiction and venue of the state or federal courts in Dallas County, Texas, and appropriate appellate courts therefrom, in any action or proceeding brought with respect to or in connection with this Agreement. This choice of forum and law is knowingly and voluntarily agreed to by the Parties for their mutual convenience and in exchange for the consideration provided by the Company as stated herein, and is made a material part of this Agreement.

23.Severability. If any provision or part of this Agreement is held or determined to be invalid or unenforceable for any reason, each such provision or part shall be severed from the remaining provisions of the Agreement or the Agreement shall be read and interpreted as if it did not contain such provision or part. The validity and enforceability of remaining provisions shall not be affected by any such invalid or unenforceable part or provision; however, if Employee seeks to invalidate any portion of the release in Paragraph 3 or in the Supplemental Release, and any such portion of the release is held to be unenforceable, Releasees may seek modification or severance of such portion or may terminate the Agreement or consider the Agreement null and void.

24.Multiple Counterparts. This Agreement may be signed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one
Retirement and Release Agreement-Page 13

and the same document. Faxed copies or PDF copies sent by email will be effective and enforceable.

25.Entire Agreement. This Agreement along with Exhibit 1 through Exhibit 3, and the governing Long Term Incentive plans and awards, which are incorporated by reference as if fully set forth herein, are the entire Agreement between Employee and the Company and supersede any and all prior negotiations, agreements, and/or understandings between the Parties pertaining to the subject matter hereof, whether written or oral. However, this Agreement is not intended to eliminate or modify any indemnification rights Employee may have under the Indemnification Agreement dated November 11, 2008, the Company’s bylaws or Certificate of Incorporation, or governing law. Additionally, this Agreement does not waive any rights Employee may have as a covered person under the Company’s directors and officers liability insurance. Furthermore, this Agreement does not eliminate or change the terms and conditions of any confidentiality agreement Employee may have signed at the time of hire or during his employment with the Company except that Employee may make disclosures as expressly set forth in Paragraph 9 of this Agreement. Further, neither the Company nor anyone acting on its behalf has made any promises or representations to Employee other than those expressly stated in this Agreement.

Retirement and Release Agreement-Page 14

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
BY HIS SIGNATURE BELOW, EMPLOYEE ACKNOWLEDGES AND CERTIFIES THAT HE HAS CAREFULLY READ THE ENTIRETY OF THIS AGREEMENT AND THE CORRESPONDING EXHIBITS, UNDERSTANDS THEIR RESPECTIVE PROVISIONS, AND THE EFFECT OF SUCH PROVISIONS ON EMPLOYEE’S RIGHTS. EMPLOYEE FURTHER CONFIRMS THAT HE HAS NOT BEEN INFLUENCED TO EXECUTE THIS AGREEMENT BY ANY STATEMENT OR REPRESENTATION BY THE COMPANY OR ANYONE ACTING ON ITS BEHALF THAT IS NOT EXPRESSLY CONTAINED IN THIS AGREEMENT OR THE EXHIBITS ATTACHED THERETO. EMPLOYEE ALSO ACKNOWLEDGES THAT THIS AGREEMENT AND THE RELEASE AND WAIVER OF CLAIMS CONTAINED HEREIN ARE KNOWINGLY AND VOLUNTARILY ENTERED INTO.
EMPLOYEE AGREES TO EXECUTE ANY AND ALL DOCUMENTS AS MAY BE REASONABLY NECESSARY TO CARRY OUT THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO A FOLLOW-UP RELEASE OF ALL EMPLOYMENT RELATED CLAIMS.


10/30/2020                        /s/ Carlos M. Hernandez    
DATE SIGNED                    Carlos M. Hernandez
                    

                            Fluor Enterprises, Inc.

10/30/2020                    BY:    /s/ Alan Boeckmann        
DATE SIGNED                    Alan Boeckmann    

    




Retirement and Release Agreement-Page 15

Exhibit 1 to Retirement and Release Agreement
Supplemental Release and Waiver of Claims
Complete Release of Claims. In consideration for the payments and accommodations set forth in the Retirement and Release Agreement (the “Agreement”) between me and Fluor Enterprises, Inc. (the “Company”) to which this Exhibit 1 is attached, which are to be provided to me under the Agreement , to which I am not otherwise entitled and which are expressly conditioned on my signing the Agreement and each of the exhibits thereto, including this Supplemental Release and Waiver of Claims (this “Release of Claims”), and for other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, on my own behalf and on behalf of my heirs, executors, administrators, beneficiaries, representatives, successors and assigns, and all others connected with or claiming through me, I hereby release and forever discharge the Company, and its current and former parent companies, subsidiaries, affiliated companies, related companies and joint ventures and each of their respective current and former officers, directors, board members, shareholders, affiliates and controlling person(s) (if any), employees, attorneys, representatives, predecessors, successors, assigns, divisions, co-employers, vendors, contractors and all other persons acting by, through, under, or in concert with any of them (collectively “Releasees”) from any and all claims, charges, complaints, lawsuits, liabilities, obligations, promises, agreements, damages, actions, causes of action, rights, demands, costs, losses, debts and expenses, injuries and grievances of any and every kind. Said release includes, but is not limited to, a full release of any and all claims for punitive damages, attorneys’ fees, injunctive relief, declaratory relief, equitable relief, loss of wages, loss of other employment, back pay, front pay, notice pay, severance pay, liquidated damages, compensatory damages, personal injury, emotional distress, mental anguish, libel, slander, defamation, vacation pay, sick pay, pension contributions or benefits, medical or health benefits, short or long term disability benefits, and any other employee benefits; and any and all claims and demands of any other kind and nature whatsoever, foreseen, unforeseen, or unforeseeable, now known or which may hereafter be discovered relating to my employment with and/or the cessation of my employment with the Company, or to any event, act or omission that has occurred as of the date this Release of Claims is executed, and includes, but is not limited to, to the fullest extent allowed by law, all liability arising from:

•    Title VII of the Civil Rights Acts of 1964;
•    the Americans with Disabilities Act of 1990;
•    the Family and Medical Leave Act;
•    Genetic Information Nondiscrimination Act of 2008
•    the Fair Labor Standards Act;
•    Sections 1981 through 1988 of Title 42 of the United States Code;
•    the Age Discrimination in Employment Act of 1967;
•    the Older Workers Benefit and Protection Act of 1990;
•    the Uniformed Services Employment and Reemployment Act of 1994;
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•    the Employee Retirement Income Security Act of 1974;
•    the Health Insurance Portability and Accountability Act;
•    the Occupational and Safety Health Act of 1970;
•    the Worker Adjustment and Retraining Notification Act;
•    the Equal Pay Act;
•    Executive Orders 11246 and 11141;
•    the Rehabilitation Act of 1973;
•    any and all local, municipal, state, or federal statutes, regulations or ordinances;
•    any and all claims arising under state or federal common law;
•    any and all claims arising under any other law; and
•    any claims for attorneys’ fees or costs.

I understand that nothing contained in this Release of Claims shall be construed to prohibit me from filing a charge, complaint or inquiry with any governmental agency or from providing information or documents to or participating in a proceeding before any governmental agency responsible for the enforcement of any local, state or federal law; provided, however, that I hereby agree to waive my right to recover monetary damages or other individual relief in any such charge, complaint or lawsuit filed by me or by anyone else on my behalf, except for monetary awards received from a government-administered whistleblower award program under which I provided information directly to a government agency. I further understand that nothing contained in this Release of Claims shall be construed to limit, restrict or in any other way affect my communicating with any governmental agency or entity, or communicating with any official or staff person of a governmental agency or entity, concerning matters relevant to such governmental agency or entity without prior notice to the Company, and that nothing in this Release of Claims prohibits me from fully participating in any whistleblower programs, including the right to receive an incentive award authorized under federal statute or regulation for information provided to the Securities and Exchange Commission or any other federal regulatory or law enforcement agency.

Review and revocation period. I understand that the Release of Claims set forth above includes a waiver of rights and claims under the Age Discrimination in Employment Act of 1967 (Title 29, United States Code, Section 629, et. Seq.) (“ADEA”). I understand that I must sign this Release of Claims, if at all, within twenty-one (21) days following my receipt of it on my last day of employment, and in no event prior to the date that my employment with the Company terminates. I acknowledge that this Release of Claims creates legally binding obligations, and that the Company has advised me to consult an attorney before signing it. In signing this Release of Claims, I give the Company assurance that I have signed it voluntarily and with a full understanding of its terms; that I have had sufficient opportunity of not less than twenty-one (21) days before signing this Release of Claims to consider its terms and to consult with an attorney, if I wished to do so; and that I have not relied on any promises or representations, express or implied, that are not set forth expressly in this Release of Claims.

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I understand that I will have seven (7) days after signing this Release of Claims to revoke my signature, and that, if I intend to revoke my signature, I must do so in writing addressed and delivered to Stacy Dillow, Chief Human Resources Officer prior to the end of the seven (7)-day revocation period. I understand that this Release of Claims will become effective upon the eighth (8th) day following the date that I sign it, provided that I do not revoke my acceptance in accordance with the immediately preceding sentence.

Release Inapplicable to Retirement Benefits. I understand this Release of Claims does not include a release of my right, if any, to retirement benefits under the terms of the Company’s standard retirement plans and programs or to compensation deferrals I have made under the Fluor 409A Executive Deferred Compensation Program. I understand my right to such benefits, where applicable, shall continue to be governed by and subject to the terms and conditions set out in the applicable plans, programs, and agreements. I also understand that I am not waiving any rights I may have to seek continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), benefits under applicable workers’ compensation and/or unemployment compensation statutes and/or the right to pursue claims which by law cannot be waived by signing the Agreement or this Release of Claims.

Non-release of Future Claims. I understand this Release of Claims does not waive or release any rights or claims that I may have under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act which arise after the date I sign this Release. In addition, I understand and agree that this Release of Claims does not include any claims I may have against the Company for its failure to comply with any provision of the Agreement.

Non-release of Indemnity Rights. This Release of Claims does not include a release of any indemnification rights that may exist under the: (i) Indemnification Agreement dated November 11, 2008; (ii) Company’s bylaws or Articles of Incorporation; or (iii) applicable law. In addition, this Release of Claims does not waive any coverage that may exist under the Company’s directors and officers liability insurance.


Accepted and agreed:

Signature: /s/ Carlos M. Hernandez         Date: 10/30/2020
    Carlos M. Hernandez



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Exhibit 2 to Retirement and Release Agreement
LONG TERM INCENTIVES VESTING/FORFEITURE AGREEMENT
This Long Term Incentives Vesting/Forfeiture Agreement (the “LTI Vesting/Forfeiture Agreement”) is between Fluor Enterprises, Inc. (the “Company”) and Carlos M. Hernandez (the “Employee”).
Underlying Premises of this Long Term Incentives Vesting/Forfeiture Agreement
    Whereas, Employee shall either retire from the Company on or about July 1, 2021 (the “Retirement Date”) or be terminated before June 30, 2021 (“Termination Date”) as per the terms set forth in the Retirement and Release Agreement to which this Exhibit 2 is attached (“Retirement and Release Agreement”); and
    Whereas, Employee desires to have certain outstanding grants of unvested non-qualified stock options, restricted stock units, performance based restricted stock units, and value-driver incentive awards (“Long Term Incentives”) vest; and
    Whereas, such Long Term Incentives have certain vesting restrictions when an Employee separates their employment from the Company in connection with retirement;
    NOW, THEREFORE, for good and valuable consideration, Employee and the Company hereby agree to the following terms and conditions:
1.Consideration. In exchange for the promises below, the Company agrees to vest certain outstanding Long Term Incentives of Employee in connection with retirement, as provided for in the applicable plan documents and agreements, if such Long Term Incentives were granted to Employee at least one year prior to either the Retirement Date or the Termination Date. In addition, Long Term Incentives granted to Employee in 2020 shall continue to vest and be payable in accordance with their terms on the dates set out in the awards if Employee remains employed through February 22, 2021. For clarity, the Long Term Incentives granted to Employee in 2020 shall be forfeited and shall not continue to vest if Employee’s employment with the Company ends before February 22, 2021.

2.Vesting Requirement/Conditions. For the consideration provided in paragraph 1 above, Employee agrees that he will not engage in any Detrimental Activity as provided for in paragraphs 3 and 4 below.

3.Detrimental Activity. Employee agrees that during the period of employment and for a period of 12 months after he is no longer employed by the Company, Employee will not, directly or indirectly, accept or become engaged in any capacity (whether as an employee, partner, consultant, agent or other arrangement) with any other company engaged in or about to become engaged in business that directly or indirectly competes with the Company and/or its affiliates, including any parent corporation (“Competitive Business”). This restriction applies to Employee working for a Competitive Business in the same country where a Company office or project (or an affiliate’s company or office) exists or is scheduled to start within 3 months of Employee’s Retirement Date or Termination Date. Such activity will be considered to be detrimental to the Company and/or its affiliates. A Competitive Business
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includes any engineering and/or construction company headquartered or having a physical presence in any country, county, province, or parish in which the competitive business or its affiliates conduct business operations that are substantially similar to and/or competitive with, the Company’s or an affiliate’s business operations. The foregoing obligations shall not be deemed to prohibit Employee from being an owner of less than 5% of the outstanding stock of any class of a corporation which is publicly traded, so long as Employee has no active participation in the business of such corporation. Additionally, Detrimental Activity shall also include personally soliciting or participating in or assisting in any way in the solicitation of any other employees of the Company or of any of its affiliates for a period of one year from the Termination Date or Retirement Date. Employee understands and agrees that Detrimental activity shall also include failure to return the Company’s property; however, Employee understands he is not limited from providing any information or documents to any governmental agency, including the U.S. Securities and Exchange Commission, as part of a whistleblower action and/or a report of possible violations of any federal securities law as stated in Paragraph 9 of the Retirement and Release Agreement. Employee may request the written consent of Fluor’s Board of Directors for any exceptions to this LTI Vesting/Forfeiture Agreement that he wants the Company to consider, which may or may not be granted.

4.Confidential / Trade Secrets / Company Proprietary Information. Employee further understands and agrees that in the course of Employee's employment with the Company, Employee has acquired and will continue to acquire confidential and proprietary information and trade secrets concerning the Company's operations, its future plans and its methods of doing business. Employee understands and agrees it would be extremely damaging and detrimental to the Company if Employee disclosed such information to a competitor, made it available to any company, or used such information to compete with the Company or its affiliates in any way. Employee further understands and agrees that such information has been divulged to him in confidence and in consideration of the promises made in this LTI Vesting/Forfeiture Agreement, and that the Company provided Employee with access to such information during his employment. Employee therefore agrees that he will not use or disclose such information to a competitor or another company and will not use such information to compete with the Company or its affiliates in any way.

Under the federal Defend Trade Secrets Act of 2016, Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made to Employee’s attorney in relation to a lawsuit for retaliation against Employee for reporting a suspected violation of law; or (c) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

5.Remedies. In the event Employee breaches or threatens to breach this LTI Vesting/Forfeiture Agreement by participating in Detrimental Activity or using or disclosing confidential/trade secrets/Company propriety information as set out in paragraphs 3 and 4 herein (for example and without limitation, Employee becomes employed or otherwise engaged by an entity that competes with the Company or an affiliate or solicits Company employees as provided above), Employee will forfeit any vesting of any Long Term Incentive awards and may be required to repay the value of previously vested awards to the Company
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to the extent that any vesting occurred in reliance on Employee’s promises as provided above. In addition and supplementary to other rights and remedies existing in its favor, the Company may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions in this agreement (without posting a bond or other security).

6.Authority to Reform. Employee acknowledges and agrees that the forfeiture of unvested Long Term Incentives for voluntarily engaging in Detrimental Activity and the geographic and time restrictions set forth herein are reasonable and are no greater than required to adequately protect the Company’s legitimate business interests. However, if at the time of enforcement of this LTI Vesting/Forfeiture Agreement, a court shall refuse to enforce this LTI Vesting/Forfeiture Agreement, whether because the time limit is too long or because the restrictions are more extensive than is necessary to protect the business and goodwill of the Company, the Parties understand and agree and direct that the court modify the restrictions to cover the maximum period, scope, and geographic area permitted by law.

7.Governing Law and Venue. This LTI Vesting/Forfeiture Agreement shall in all respects be construed according to the laws of the State of Texas, excluding the provisions thereof which refer to the laws of another jurisdiction. With respect to any claim or dispute related to or arising under this LTI Vesting/Forfeiture Agreement, the Parties hereby consent to the exclusive jurisdiction, forum and venue of the state and federal courts located in Dallas County, Texas and appropriate appellate courts therefrom. This choice of forum and law is knowingly and voluntarily agreed to by the Parties for their mutual convenience and in exchange for the consideration provided by the Company as stated herein, and is made a material part of this Agreement.

8.Entire Agreement. This LTI Vesting/Forfeiture Agreement, in conjunction with the Retirement and Release Agreement, the Supplemental Release, and the Long Term Incentives’ governing plans and awards, contains the entire agreement of the Parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the Parties. This LTI Vesting/Forfeiture Agreement may not be waived or released by the Company unless in writing signed by the Executive Chairman of Fluor. No course of conduct or failure or delay in enforcing the provisions of this LTI Vesting/Forfeiture Agreement shall be construed as a waiver of such provisions or affect the validity, binding effect or enforceability of this LTI Vesting/Forfeiture Agreement or any provision hereof.
                     
10/30/2020                    /s/ Carlos M. Hernandez        
DATE SIGNED                     CARLOS M. HERNANDEZ

        FLUOR ENTERPRISES, INC.

10/30/2020                    BY: /s/ Alan Boeckmann        
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DATE SIGNED                         Alan Boeckmann

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Exhibit 3 to Retirement and Release Agreement
July 1, 2021
Carlos Hernandez
6247 Lupton Dr
Dallas, Texas 75225

Dear Carlos:

This letter will confirm the Agreement between Carlos Hernandez, (the “Consultant”), and FDEE Consulting, Inc., (the "Company").

I.     Scope of Services: The Consultant agrees to render advisory and consultation services to the Company as and when the Company may from time to time request. Each assignment will be made in writing with a description of the assignment and schedule for completion. Consulting services to be provided under this Agreement include Consultant assisting the Company in the orderly transition of Employee’s knowledge, duties, and responsibilities to others, providing advice, and cooperating with requests for assistance related to any litigation or disputes involving the Company, its subsidiaries, parents, related entities, or joint ventures, as may be requested by the Company or its legal counsel, regarding any matter, dispute or controversy of which Consultant has or may have reason to have knowledge, information, or expertise. Consultant’s cooperation in connection with such claims or actions shall include being available to meet with counsel to prepare for discovery, a hearing, or trial and to act as a witness. If Consultant is called as a witness by the Company to give testimony (oral or written) in any matter, Consultant understands that Consultant is to answer proper questions truthfully. The payment for services referenced below (which is in lieu of and shall not be duplicative of any payment for such services referenced in that certain Retirement and Release Agreement between the Consultant and Fluor Enterprises, Inc.) is not, and shall not, be contingent upon the content of the Consultant’s testimony in the course of a hearing nor shall it be contingent on the outcome of any such hearing. The Company authorizes the Executive Chairman of Fluor Corporation’s Board of Directors and its Chief Executive Officer, or their applicable designees, to approve written assignments to the Consultant hereunder.

    In performing services under this Agreement, the Consultant shall operate as and have the status of an independent contractor and shall not act as or be an agent or employee of the Company. For this reason, all of the Consultant's activities will be at his own risk, and the Consultant shall not be entitled to, and hereby waives and disclaims any right to, benefits which Company may provide to employees of Company, including but not limited to Workers' Compensation or similar benefits or other insurance protection provided by the Company. The Consultant will make his own arrangements for medical insurance and insurance coverage for the activities to be performed hereunder.

As an independent contractor, the Consultant will be solely responsible for determining the means, methods, time and place of performing the services subject to the Company's overall schedule requirements and maintaining interfaces necessary for the services and the Company will receive only the results of the Consultant's performance of the foregoing services.

II.    Term: The term of this Agreement shall begin July 1, 2021, and shall expire on June 30, 2022 unless otherwise modified by subsequent written agreement signed by Consultant and an authorized representative of the Company.
1


        
III.    Payment for Services: The Company shall compensate the Consultant for the actual hours worked by the Consultant for services specifically approved by the Company during the term of this agreement as follows:

(i)Fee: Consultant will be paid Five Hundred Thousand Dollars ($500,000) for the consulting services, which shall be paid out in quarterly payments, in arrears, of $125,000, gross;

(ii)The Consultant agrees services will not be provided in excess of 420 hours for the term of this agreement;

(iii)The Consultant agrees services will not be provided in excess of 125 hours per month for the term of this agreement;

(iv)Under no circumstances shall Consultant work more than 40 hours in a week.

(v)The Consultant will be reimbursed for any reasonable business expenses incurred while providing services to the Company during the term of this Agreement provided that Consultant complies with the requirements set forth in Exhibit A attached to this Agreement;

(vi)Applicable taxes including FICA (Social Security and Medicare) taxes will be withheld on all payments made to Consultant. A Form W-2 for the Consultant’s 2021 and any subsequent year's consulting compensation will be provided.

IV.    Invoicing: Within 30 days following the end of each quarter, the Consultant will furnish the Company with an invoice detailing the time devoted to the Company's service during such quarter and a description of activities performed on behalf of the Company. All invoices must present a company code, general ledger account number and a cost object. The individual responsible for approving the Consultant’s assignments must approve all invoices submitted by Consultant before Company pays the invoice. The Company shall pay such invoice within thirty (30) days of receipt and approval. The Company reserves the right to reject invoices more than 60 days past due.

V.    Inventions, Patents and Confidential Information: Consultant shall promptly disclose to the Company all discoveries, developments, improvements, inventions and other intangible rights ("Inventions") arising from performance of Consultant's services hereunder and hereby assigns said Inventions to the Company and shall execute all documents required to complete exclusive ownership by the Company or to secure patents, if deemed appropriate in the sole discretion of the Company.

VI. Confidential Information. The Consultant agrees that any information which he obtains while performing services in his consulting capacity concerning the business or operations of the Company, its affiliates or third parties with whom it conducts business (including, but not as a limitation, technical information) shall be used only to perform such services and shall not be disclosed to anyone outside the Company, except with the prior written authorization of the Company. Further, to the extent any such information is in written form, all such documents are considered company property and must be returned to the Company upon termination of this Agreement. The obligations of this paragraph shall survive any termination of this Agreement and do not apply to any information which has been publicly released or is in the public knowledge or literature.

2


However, nothing in this agreement prohibits or restricts Consultant from either filing charges/complaints with any governmental agency or participating in an investigation or a proceeding before any governmental agency responsible for the enforcement of any local, state or federal law. In addition, nothing in this agreement prohibits Consultant from: (i) reporting possible violations of federal law or regulations, including any possible securities laws violations, to any governmental agency or entity, including but not limited to, the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress, Occupational Health and Safety Administration, or any agency Inspector General; (ii) making any other disclosures that are protected under the whistleblower provisions of federal law or regulations; or (iii) otherwise fully participating in any whistleblower programs, including the right to receive an incentive award authorized under federal statute or regulation for information provided to the Securities & Exchange Commission or any other federal regulatory or law enforcement agency.


VII.    Supplier Expectations: The Consultant has read and understands Fluor’s Business Conduct and Ethics Expectations for Suppliers and Contractors (the Supplier Expectations) and Consultant will do nothing to violate the Supplier Expectations.

VIII.    Anti-Corruption: The Consultant will not make and has not made directly or indirectly, any payments or given anything of value to any third party, including any foreign official, foreign political party or foreign party candidate in connection with the Company's activities or in obtaining or retaining business from any government agency or instrumentality. The Consultant shall promptly notify the Company if in the course of any business for which Consultant provides or may have provided consulting services to the Company, Consultant is approached, asked or requested or offers to make any payments or giving anything of value to any third party. Additionally, Consultant agrees that during the entire term of this Agreement Consultant will not act as an agent, official, or employee of any foreign government, or foreign political party, or a candidate for foreign office, and that the fees and expenses that will be paid to Consultant under this Agreement will not be paid directly or indirectly to any such agent, official, employee, party or candidate on behalf of Company.

IX.    Corporate Assets: Consultant is expected to respect the Company's assets as he would his own. Corporate assets take many forms (land, building, equipment, etc.). Consultant is required to return any assets or related documents to Company.

X.    Compliance with Law: The Consultant agrees to fully comply with the United States Foreign Corrupt Practices Act (Public Law 95-213, 95th Congress, December 19, 1977) and all other applicable State and United States Laws. The Consultant acknowledges that Fluor Corporation and its subsidiaries require their vendors and suppliers to fully comply with the laws of the United States.

XI.    Use of Substances: The Consultant understands the Company’s goal to maintain a Drug and Alcohol free environment and agrees to fully comply with the requirements set forth in Exhibit B attached to this Agreement.

XII.    Entire Agreement: This Agreement consists of this letter and corresponding attachments Exhibits A & B referenced above. This Agreement, as defined in this paragraph, sets forth the full and complete understanding of the parties as of the date above stated, and supersedes any and all agreements and representations made or dated prior hereto with respect to the consulting services to be provided by Consultant. This Agreement can only be amended in writing and signed by the duly authorized representatives of the parties.

3


XIII.    Governing Law: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas.

    Kindly indicate your agreement with the foregoing by executing the duplicate originals of this letter in the space below and returning a fully signed duplicate original to us.

                                        FDEE CONSULTING, INC.


                                        /s/ Stacy Dillow    
    By: Stacy Dillow
     President
    
Accepted and Agreed:


/s/ Carlos M. Hernandez        10/30/2020        

By: Carlos M. Hernandez             Date:        
        


4

Exhibit 10.25




[FDEE Consulting, Inc. Letterhead]

July 1, 2021

Carlos Hernandez
6247 Lupton Dr
Dallas, Texas 75225

Dear Carlos:


This letter will confirm the Agreement between Carlos Hernandez, (the “Consultant”), and FDEE Consulting, Inc., (the "Company").

I.     Scope of Services: The Consultant agrees to render advisory and consultation services to the Company as and when the Company may from time to time request. Each assignment will be made in writing with a description of the assignment and schedule for completion. Consulting services to be provided under this Agreement include Consultant assisting the Company in the orderly transition of Employee’s knowledge, duties, and responsibilities to others, providing advice, and cooperating with requests for assistance related to any litigation or disputes involving the Company, its subsidiaries, parents, related entities, or joint ventures, as may be requested by the Company or its legal counsel, regarding any matter, dispute or controversy of which Consultant has or may have reason to have knowledge, information, or expertise. Consultant’s cooperation in connection with such claims or actions shall include being available to meet with counsel to prepare for discovery, a hearing, or trial and to act as a witness. If Consultant is called as a witness by the Company to give testimony (oral or written) in any matter, Consultant understands that Consultant is to answer proper questions truthfully. The payment for services referenced below (which is in lieu of and shall not be duplicative of any payment for such services referenced in that certain Retirement and Release Agreement between the Consultant and Fluor Enterprises, Inc.) is not, and shall not, be contingent upon the content of the Consultant’s testimony in the course of a hearing nor shall it be contingent on the outcome of any such hearing. The Company authorizes the Executive Chairman of Fluor Corporation’s Board of Directors and its Chief Executive Officer, or their applicable designees, to approve written assignments to the Consultant hereunder.

    In performing services under this Agreement, the Consultant shall operate as and have the status of an independent contractor and shall not act as or be an agent or employee of the Company. For this reason, all of the Consultant's activities will be at his own risk, and the Consultant shall not be entitled to, and hereby waives and disclaims any right to, benefits which Company may provide to employees of Company, including but not limited to Workers' Compensation or similar benefits or other insurance protection provided by the Company. The Consultant will make his own arrangements for medical insurance and insurance coverage for the activities to be performed hereunder.

As an independent contractor, the Consultant will be solely responsible for determining the means, methods, time and place of performing the services subject to the Company's overall schedule requirements and maintaining interfaces necessary for the services and the Company will receive only the results of the Consultant's performance of the foregoing services.

II.    Term: The term of this Agreement shall begin July 1, 2021, and shall expire on June 30, 2022 unless otherwise modified by subsequent written agreement signed by Consultant and an authorized representative of the Company.
        
Exhibit A: Invoices and Expense Reimbursement- Page 1

July 1, 2021
Page 2 of 4

III.    Payment for Services: The Company shall compensate the Consultant for the actual hours worked by the Consultant for services specifically approved by the Company during the term of this agreement as follows:

(i)Fee: Consultant will be paid Five Hundred Thousand Dollars ($500,000) for the consulting services, which shall be paid out in quarterly payments, in arrears, of $125,000, gross;

(ii)The Consultant agrees services will not be provided in excess of 420 hours for the term of this agreement;

(iii)The Consultant agrees services will not be provided in excess of 125 hours per month for the term of this agreement;

(iv)Under no circumstances shall Consultant work more than 40 hours in a week.

(v)The Consultant will be reimbursed for any reasonable business expenses incurred while providing services to the Company during the term of this Agreement provided that Consultant complies with the requirements set forth in Exhibit A attached to this Agreement;

(vi)Applicable taxes including FICA (Social Security and Medicare) taxes will be withheld on all payments made to Consultant. A Form W-2 for the Consultant’s 2021 and any subsequent year's consulting compensation will be provided.

IV.    Invoicing: Within 30 days following the end of each quarter, the Consultant will furnish the Company with an invoice detailing the time devoted to the Company's service during such quarter and a description of activities performed on behalf of the Company. All invoices must present a company code, general ledger account number and a cost object. The individual responsible for approving the Consultant’s assignments must approve all invoices submitted by Consultant before Company pays the invoice. The Company shall pay such invoice within thirty (30) days of receipt and approval. The Company reserves the right to reject invoices more than 60 days past due.

V.    Inventions, Patents and Confidential Information: Consultant shall promptly disclose to the Company all discoveries, developments, improvements, inventions and other intangible rights ("Inventions") arising from performance of Consultant's services hereunder and hereby assigns said Inventions to the Company and shall execute all documents required to complete exclusive ownership by the Company or to secure patents, if deemed appropriate in the sole discretion of the Company.

VI. Confidential Information. The Consultant agrees that any information which he obtains while performing services in his consulting capacity concerning the business or operations of the Company, its affiliates or third parties with whom it conducts business (including, but not as a limitation, technical information) shall be used only to perform such services and shall not be disclosed to anyone outside the Company, except with the prior written authorization of the Company. Further, to the extent any such information is in written form, all such documents are considered company property and must be returned to the Company upon termination of this Agreement. The obligations of this paragraph shall survive any termination of this Agreement and do not apply to any information which has been publicly released or is in the public knowledge or literature.

However, nothing in this agreement prohibits or restricts Consultant from either filing charges/complaints with any governmental agency or participating in an investigation or a proceeding before any governmental agency responsible for the enforcement of any local, state or federal law. In addition,

July 1, 2021
Page 3 of 4

nothing in this agreement prohibits Consultant from: (i) reporting possible violations of federal law or regulations, including any possible securities laws violations, to any governmental agency or entity, including but not limited to, the U.S. Department of Justice, the U.S. Securities and Exchange Commission, the U.S. Congress, Occupational Health and Safety Administration, or any agency Inspector General; (ii) making any other disclosures that are protected under the whistleblower provisions of federal law or regulations; or (iii) otherwise fully participating in any whistleblower programs, including the right to receive an incentive award authorized under federal statute or regulation for information provided to the Securities & Exchange Commission or any other federal regulatory or law enforcement agency.


VII.    Supplier Expectations: The Consultant has read and understands Fluor’s Business Conduct and Ethics Expectations for Suppliers and Contractors (the Supplier Expectations) and Consultant will do nothing to violate the Supplier Expectations.

VIII.    Anti-Corruption: The Consultant will not make and has not made directly or indirectly, any payments or given anything of value to any third party, including any foreign official, foreign political party or foreign party candidate in connection with the Company's activities or in obtaining or retaining business from any government agency or instrumentality. The Consultant shall promptly notify the Company if in the course of any business for which Consultant provides or may have provided consulting services to the Company, Consultant is approached, asked or requested or offers to make any payments or giving anything of value to any third party. Additionally, Consultant agrees that during the entire term of this Agreement Consultant will not act as an agent, official, or employee of any foreign government, or foreign political party, or a candidate for foreign office, and that the fees and expenses that will be paid to Consultant under this Agreement will not be paid directly or indirectly to any such agent, official, employee, party or candidate on behalf of Company.

IX.    Corporate Assets: Consultant is expected to respect the Company's assets as he would his own. Corporate assets take many forms (land, building, equipment, etc.). Consultant is required to return any assets or related documents to Company.

X.    Compliance with Law: The Consultant agrees to fully comply with the United States Foreign Corrupt Practices Act (Public Law 95-213, 95th Congress, December 19, 1977) and all other applicable State and United States Laws. The Consultant acknowledges that Fluor Corporation and its subsidiaries require their vendors and suppliers to fully comply with the laws of the United States.

XI.    Use of Substances: The Consultant understands the Company’s goal to maintain a Drug and Alcohol free environment and agrees to fully comply with the requirements set forth in Exhibit B attached to this Agreement.

XII.    Entire Agreement: This Agreement consists of this letter and corresponding attachments Exhibits A & B referenced above. This Agreement, as defined in this paragraph, sets forth the full and complete understanding of the parties as of the date above stated, and supersedes any and all agreements and representations made or dated prior hereto with respect to the consulting services to be provided by Consultant. This Agreement can only be amended in writing and signed by the duly authorized representatives of the parties.

XIII.    Governing Law: This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas.

    Kindly indicate your agreement with the foregoing by executing the duplicate originals of this letter in the space below and returning a fully signed duplicate original to us.

                                        

July 1, 2021
Page 4 of 4



                                        FDEE CONSULTING, INC.


                                        /s/ Stacy Dillow    
    By: Stacy Dillow
     President
    

Accepted and Agreed:


/s/ Carlos M. Hernandez        10/30/2020        

By: Carlos M. Hernandez             Date:        
        






Exhibit A: Invoices and Expense Reimbursement

I.Guidelines
Consultant will be reimbursed for all pre-approved reasonable and necessary travel and other business related expenses. Reimbursed expenses must: (a) be associated with the performance of services on behalf of Company, (b) be in compliance with Internal Revenue Service regulations, federal, state and other applicable laws, and (c) not otherwise be compensated from other sources. Consultants who travel at the request of the Company must have documented approval from the Company Representative identified in the Consulting Agreement (“Company Representative”) before incurring any costs for travel for which Consultant will seek reimbursement.

Failure to comply with each of the above guidelines may result in non-reimbursement of travel and business related expenses.

II.Travel and Other Reimbursable Expenses

The following expenses are reimbursable when approved by the responsible Company Representative:

i.Air Travel
1.Coach class accommodations must be used for domestic travel in the United States.

2.Consultant is not permitted to travel internationally to perform services under this agreement.

3.Consultant should plan and ticket travel at least 14 days in advance whenever possible to take advantage of cost savings opportunities.

4.Consultant must provide a detailed itinerary for each airline ticket fee displayed on the invoice.

ii.Vehicle Rental
1.Intermediate or mid-size automobiles or smaller are authorized.

iii.Personal Automobile Travel
1.Consultants using a personal automobile for business travel on behalf of the Company will be reimbursed at the standard mileage reimbursement rate as approved by the Internal Revenue Service. The Consultant is responsible for insurance coverage. No maintenance costs of any kind or fuel charges will be reimbursed.

iv.Hotels
1.Consultants will be reimbursed for accommodations at reasonably priced hotels.
2.It is the Consultant’s responsibility to learn the hotel’s room cancellation requirements and to notify the hotel directly in time to make the cancellations.
Exhibit A: Invoices and Expense Reimbursement- Page 1


Consultant will not be reimbursed for fees that may be incurred for failure to cancel a reservation .
v.Meals
1.Meal charges must be reasonable.
2.Reimbursement for meals will only be made in conjunction with out of town travel.

Exhibit A: Invoices and Expense Reimbursement- Page 2





I.Time Charges

Fluor will pay only for the actual time necessary to complete a function. Actual time must be charged and there shall be no rounding of a time charge to the next half-hour or quarter-hour.

No reimbursement will be allowed for any time spent in complying with these requirements, nor will Consultant be compensated for any time devoted to the preparation of billing invoices.

II.Invoicing

Backup documentation or receipts for expenses in excess of $25.00 is required. Company requires that expenses be identified by date incurred and category, e.g., travel, meals, etc. Each expense item must be sufficiently detailed to enable Company to determine the exact nature, purpose, and necessity of each expense.

Within 30 days following the end of each month, the Consultant will furnish the Company with an invoice detailing the time devoted to the Company's service during such month and a description of activities performed on behalf of the Company. All invoices must present a company code, general ledger account number and a cost object. Consultant shall include expenses on the invoice.

Each invoice requires a certification that the Consultant has reviewed the invoice and believes that it accurately reports the time and expenses reasonably and necessarily incurred and directly related to the services performed under the Consulting Agreement, and, further, that the invoice complies with these Billing Requirements.

The individual responsible for approving the Consultant’s assignments must approve all invoices submitted by Consultant before Company pays the invoice. The Company shall pay such invoice within thirty (30) days of receipt and approval. The Company reserves the right to reject invoices more than 60 days past due.







Exhibit B: Drugs and Alcohol

I.Guidelines

The Company prohibits the possession, use, manufacture, distribution, dispensation or presence of drugs and alcohol on Company premises or in the performance of consulting services provided by Consultant pursuant to the Consultant Agreement and as explained in detail below.

II.Chemical Screening

The Company may request that Consultant be screened for use of drugs and/or alcohol if Consultant is suspected of being under the influence of drugs and/or alcohol due to uncharacteristic behavior, mood swings, inability to appropriately respond to questions, the odor of alcohol on the breath or person, inappropriate of aggressive behavior, etc.

III.Prohibited Conduct

Prohibited conduct may include, but is not limited to the following:

i.Possessing, using, distributing, or dispensing drugs and alcohol while performing consulting services for the Company (on or off Company property).

ii.Receiving a non-negative illicit substances screen result for drugs or alcohol.

iii.Refusing to submit to chemical screening upon request.

iv.Attempting to subvert / avoid chemical screening by means of sample substitution, adulteration or intentionally providing insufficient specimen quantity.





Exhibit 10.26





[Fluor Enterprises, Inc. Letterhead]


Fluor Enterprises, Inc.    
6700 Las Colinas Blvd
Irving, Texas 75030



October 30, 2020

David Constable
754 Naples 17th Avenue South
Naples, Florida 34102    
Dear David:

On behalf of Fluor Enterprises, Inc. (“Fluor” or the “Company”), I am very pleased to offer you the position of Chief Executive Officer. If you accept this offer, your start date will be January 1, 2021 or another mutually agreed upon date. This letter summarizes the terms and conditions of your employment, should you accept this offer. We would like to have your response by October 30, 2020. Accordingly, this offer will expire at midnight on October 30, 2020 if it is not accepted before then.

All forms of compensation referred to in this offer letter are in USD and subject to reduction to reflect applicable withholding and payroll taxes and other deductions required by law. You will continue to serve on the Board of Directors as an employee director after your start date (subject to annual election the same as now), and any ongoing compensation as a non-employee director will cease upon your start date. Also, for any forms of compensation or benefits where Company service is a factor, your prior service as a Fluor employee will be counted.

Base Salary
Your starting annual base salary will be $1,350,000, less applicable withholding, which will be paid bi-weekly. Your salary will be reviewed on an annual basis in the first fiscal quarter of each year consistent with our annual executive compensation review.

Annual Incentive
Your annual incentive award will be determined consistent with the annual incentive plan applied to other Fluor executive officers based on a target amount commensurate with your position that will be reviewed annually. Your target annual incentive is 150% of your base salary or $2,025,000, gross. Your incentive opportunity range is from zero to 200% of target based on your individual performance and the overall results of Fluor Corporation. Annual incentives are awarded on a fiscal year basis payable within 90 days following the close of the fiscal year. Incentives for FY2021 are expected to be paid in Q1 of 2022 based on actual performance in FY2021.

Cash Transition and Relocation Payment

Subject to the clawback provision set forth below, you will receive a Cash Transition and Relocation Payment of $1,000,000, gross, to be paid on January 8, 2020. Please note all applicable taxes and withholdings will apply to this payment.

If you voluntarily terminate employment with the Company within twelve (12) months of your start date, you will be obligated to repay the Company, the net of taxes amount of the Cash Transition and Relocation Payment. To the extent permitted by applicable law, by signing below, you authorize the Company to deduct any amounts due from your final paycheck (including, without limitation, from any benefit or accrued vacation balance). If such a deduction from the final paycheck is

David Constable
October 30, 2020
Page 2 of 6

insufficient to reimburse the Company for the amount owed, you understand you remain personally liable for the remaining balance and agree to repay Fluor for the remaining balance within ten (10) days of your last day of employment.

Relocation Expenses

You will be reimbursed for travel expenses associated with house hunting, temporary housing costs, and moving expenses related to your relocation from Florida to the Dallas, Texas area in accordance with Company policy. If you decide to sell your current residence as part of your relocation, you will not be reimbursed for commission expenses or closing costs related to the sale.

Regular Long-Term Incentive (LTI) Award
Fluor will recommend to the Organization and Compensation Committee of the Board of Directors (“OCC”) your participation in the LTI plan for fiscal-year 2021. LTI awards emphasize long-term Company performance and management’s alignment with shareholder value creation through continued commitment to profitable growth and cost efficiencies. We will recommend a LTI award of $9,350,000 for fiscal 2021, which is: (i) subject to approval by the OCC; (ii) subject to your signing the corresponding LTI agreements, which along with the plan documents, provide additional details of the corresponding awards, restrictions, and vesting requirements. It is anticipated that your 2021 LTI award will be made at the same time as other Fluor executive officers in a comparable form, as determined by the OCC.

You will continue to be eligible for the LTI awards consistent with other Fluor executive officers while you remain employed by the Company. The design and target values associated with LTI awards are reviewed by the OCC each year so the components, timing and/or award values may vary.

Sign-On Equity Award

In connection with your appointment as CEO, you will receive $5,000,000 in equity awards based on the award-date value, as follows:

    (i) $2,500,000 in stock options with a ratable five year vesting period (vesting in 20% installments on the anniversary date of the award subject to your continued employment) and a ten year term, with vested shares becoming exercisable only if the closing price of the common stock on the date of award appreciates by at least 25% for any period of 20 consecutive trading days before the end of the five year vesting period and otherwise forfeited at that time (number of shares to be determined by the Black-Scholes value using the closing price on the date of award); and

    (ii) $2,500,000 of time-based restricted stock units with a five year vesting period vesting in 20% installments on the anniversary date of the award subject to your continued employment (number of shares to be determined by the closing price of the stock on the date of award).

The above-referenced Sign-on Equity Award is: (i) made pursuant to NYSE rules for new-hire inducement equity outside Fluor’s shareholder-approved stock plan; (ii) subject to approval by the OCC; and (iii) subject to your signing a stock option agreement and a restricted stock unit agreement which, along with the governing plan documents, provide details of the corresponding awards and their respective restrictions and vesting requirements. You should note that the retirement-acceleration provisions applicable to regular stock option and restricted stock unit awards will not apply to the Sign-on Equity, which is for the purpose of encouraging your employment retention.

It is anticipated that this Sign-on Equity Award will be made at the next OCC meeting after employment commences, but no later than January 8, 2021 or as soon as allowed if we are in a closed period.

At-Will Employment

Your employment relationship with Fluor will be “at-will.” This means that your employment with Fluor is not for any specified period of time and that either you or Fluor can terminate the employment relationship at any time, for any or no reason, with

David Constable
October 30, 2020
Page 3 of 6

or without cause, and with or without notice, subject to restrictions under any applicable law. Nothing contained in this letter or in any Company policy or benefit is intended, nor should it be construed, to alter the at-will relationship that Fluor and its employees maintain with one another.

Additionally, the at-will status of your employment cannot be altered by any oral statement or alleged oral agreement. Although the Company reserves the right to change from time-to-time other terms, conditions, and benefits of employment, the at-will nature of your employment with the Company is one aspect of our employment relationship that will not change. The only way the at-will nature of our employment relationship can be changed is by way of an express written agreement, signed by you and the Executive Chair of Fluor Corporation’s Board of Directors or the current Lead Independent Director. Accordingly, no statement from other Company officers or in any Company policy can change the at-will nature of your employment.

Human Resources Policies

During your employment with Fluor, you will be covered by its Human Resources Policies, as may be amended from time to time, and your home base office will be in Irving, Texas. Following is a summary description of some of the Company policies and the benefits offered by Fluor. For a detailed description of benefits available to you while employed by Fluor, please refer to the new-hire benefits information provided by local HR.

In addition, you will be covered by, and required to comply with, the Company’s executive compensation policies, including but not limited to, ownership guidelines, clawback requirements, hedging and pledging prohibitions, and change in control and retirement provisions.

Although a summary of benefits is being provided, please note that any plans described in this letter are subject to the specific terms and provisions of the legal documents governing these plans. Provisions of the plans as established in the plan documents are the sole source for interpretation and administration. Any conflict between the summary set forth in this letter and the Plan documents will be resolved in favor of the Plan documents. Additionally, the Company reserves the right to modify, amend, or delete any Company policy or benefit at any time, with or without notice.

Executive Deferred Compensation Plan (EDCP)
Starting from your date of hire you will be eligible to participate in this program, which has been designed to help you manage your tax obligations and plan for financial security. Your first eligible participation period will begin on your date of hire. You must enroll within 30 days of your hire date with Fluor through Prudential, our program administrator, if you wish to participate for 2021.

Participation in this plan is voluntary. Amounts deferred under the plan may be deferred until termination, retirement, or for other specified periods of time as allowed by the plan, and will accrue interest based on the allocation of your EDCP balance among the available crediting options.

Please contact Karen Roberts at karen.roberts@fluor.com for more information.

401(k) Savings Investment Plan (SIP)
You will be eligible immediately to participate in the 401(k) SIP. You may elect to defer a percentage of your base salary up to IRS maximums. After one year of service, including any prior service, the Company makes matching contributions of 100% of your contributions up to a maximum equal to 5% of your base salary earnings, subject to IRS maximums. You are immediately 100% vested in the full value of your contributions and the matching contributions within your SIP account. You decide where to invest your account from among a variety of funds with varying objectives. The maximum contribution limits may be adjusted for inflation. Check www.irs.gov for updates.
If you have funds in a retirement savings account from a previous employer, you may rollover the funds provided they are from a qualified plan and constitute a rollover contribution under the applicable IRS Code.

David Constable
October 30, 2020
Page 4 of 6


An additional feature of the SIP is a loan option. This feature allows you to borrow up to 50% of your vested account balance to a maximum of $50,000.

Discretionary Company SIP Contribution

In addition, based on financial performance, the Company may make an annual discretionary contribution to your SIP account. The amount of the contribution is based on years of service and is dependent on the overall financial performance of the Company. Employees will receive awards based on a percentage of their eligible base salary. The vesting schedule for participants is 100% after three years of service.

Years of Service Discretionary Company Contributions
1 – 9 Up to 4% of your eligible compensation
10 – 19 Up to 5% of your eligible compensation
20 – 29 Up to 6% of your eligible compensation
30+ Up to 7% of your eligible compensation


Executive Physical Examination Program

As a member of the Executive Management Team, you will be eligible for an annual allowance for an annual executive physical examination in an amount that is consistent with Company policy for other executive officers and commensurate with your level.

Executive Financial Planning Program

As a member of the Executive Management Team, you will be eligible for an annual reimbursement for financial planning services, in an amount consistent with Company policy for executives at your level, to enable you to review your current and future financial requirements with an outside financial advisor. We encourage you to seek qualified professional advice in meeting your overall financial objectives.

Executive Car Allowance
You will also be eligible for a monthly car allowance that is consistent with amounts paid to other similarly situated executive officers of the Company. This car allowance will be paid through the payroll system.

Club Membership

The Company will pay on your behalf, or reimburse you for, membership fees payable in connection with your membership in one country club of your choice.

Indemnification

During and after your employment, the Company will indemnify you in your capacity as an executive officer and member of the Board to the maximum extent permitted under the Company’s charter, by-laws, and applicable law. To implement this provision, the Company shall execute and deliver to you its standard form of indemnification agreement for officers and directors after commencement of your employment.

Time Off With Pay (TOWP)

You will be eligible to accrue Time off with Pay (TOWP). The TOWP weekly accrual rate is based on the total number of years of continuous service as verified with TOWP Accrual Date. An employee earns 0.09625 hours for every hour paid up

David Constable
October 30, 2020
Page 5 of 6

to a maximum of 7.70 hours per pay period during the first four years of Continuous Service. An employee earns 0.11550 hours for every hour paid up to a maximum of 9.24 hours per pay period beginning on the fifth through nineteenth year of Continuous Service. An employee earns 0.13475 hours for every hour paid up to a maximum of 10.78 hours per pay period beginning on the twentieth year of Continuous Service and each year thereafter.

You may use TOWP hours for payment of any time off from work you take; in addition, you will be required to use TOWP hours for facility closure dates (e.g. holidays, etc). TOWP will not accrue during any unpaid time off (with the exception of an approved short-term disability). TOWP accruals are capped at 2,080.

Please refer to Fluor U.S. Policy HR-301 for further details on TOWP.

Group Health, Dental, Vision, Life and Disability Insurance
In accordance with the standard Company benefit offerings, you will be provided with Basic Employee Life insurance, Long Term Disability coverage, and Business Travel Accident insurance. In addition, you may purchase medical, dental, vision, and additional life insurance for yourself and your dependents. You have the option to purchase short-term disability coverage for yourself. Monthly premiums are based on the options you select. Should you choose to elect coverage, it will begin on your first day of employment, provided you enroll within 31 days of your hire date.

Wellness Program

A wellness program is available to help employees improve their health and earn incentives to reduce the cost of their medical insurance premiums. A package will be provided to explain all benefit choices available to you.

Other Employee Benefits and Services
Other benefits available include Tuition Reimbursement Program, automatic enrollment in programs such as Employee and Family Assistance Program, Vision Discount Program and "Benefits For You Plus" Employee Discounts and Services Programs; and eligibility for voluntary benefits such as Critical Illness Insurance, Legal Services, and Auto/Home Insurance as well as Tax Savings Accounts, which give you the ability to pay qualifying medical, dental, vision and child/elder care expenses with pre-tax dollars.

Contingencies
The Immigration Reform and Control Act of 1986 requires Fluor to verify and record both your identity and right to work in the United States. Accordingly, this offer of employment is contingent on your being able to satisfy the requirements of the law on or before your first day of work.

In addition, this offer of employment is contingent upon your successful completion of a pre-employment chemical screen test to be conducted by e-Screen. This screening must be completed prior to your first day of work. Instructions for completing this screening will be provided IMAGE_01.JPG .

This offer of employment is also contingent upon your ability to work for the Company without restrictions from any previous employer. By accepting this offer, you confirm and represent that you are under no obligation or arrangement (including any restrictive covenants with any prior employer or any other entity) that would prevent you from becoming an employee of the Company or that would adversely impact your ability to perform the expected services on behalf of the Company. You also confirm and represent that you have not taken (or failed to return) in an unauthorized manner any confidential, proprietary, or trade secret information belonging to a prior employer or any other entity, and that you will never use or disclose such

David Constable
October 30, 2020
Page 6 of 6

information to Fluor (or any of its employees, agents or affiliates) or attempt to induce Fluor (or any of its employees, agents or affiliates) to use such information.

I hope that you will accept this offer and look forward to a productive and mutually beneficial working relationship. Please let me know if you have any questions about any of the matters outlined in this letter. I will do what I can to either answer your questions myself or to have your questions answered by H.R.

If you wish to accept this offer of employment with Fluor, please return a signed copy of this offer letter me. Please note that by signing this offer letter, you also acknowledge that no other promises or representations have been made to you about your employment with Fluor other than those contained in this offer letter.

Sincerely,

/s/ Alan Boeckmann
Alan Boeckmann


Accepted:

/s/ David Constable                        10/30/2020    
David Constable              Date

Exhibit 10.27
OPTION AGREEMENT
This Option Agreement ("Agreement") entered into as of December 23, 2020 (the "Grant Date"), by and between Fluor Corporation, a Delaware corporation (the "Company"), and you ("Grantee" or “you”) evidences the grant to Grantee of a Stock Option ("Option") pursuant to Rule 303A.08 of the New York Stock Exchange Listed Company Manual. Capitalized terms used in this Agreement and not defined herein have the meaning set forth in the Plan (as defined below).
Section 1.EMPLOYMENT INDUCEMENT AWARD
This Option is an employment inducement award made in accordance with Rule 303A.08 of the New York Stock Exchange Listed Company Manual and is not granted under any stock incentive plan adopted by the Company. Notwithstanding the preceding sentence, the Option shall be construed as if the Option had been granted under the Fluor Corporation 2020 Performance Incentive Plan (the “Plan”) in accordance with and consistent with, and shall be treated as subject to, all of the terms and conditions of the Plan, including any terms, rules or determinations made by the Committee pursuant to its administrative authority under the Plan, and such further terms as are set forth in the Plan that are applicable to awards thereunder, including without limitation provisions on adjustment of awards, non-transferability, satisfaction of tax requirements and compliance with other laws. The Option is not intended to be an "incentive stock option" within the meaning of that term under Code Section 422.
Section 2.OPTION AWARD
The Company hereby awards Grantee an Option to purchase shares of Company common stock, par value $.01 per share (“Shares”), pursuant to this Agreement at an exercise price per Share of $16.55, subject to the terms and conditions set forth herein and in the Plan (the “Exercise Price”). The Option may not be exercised in whole or in part as of the Grant Date, and becomes exercisable only if and to the extent provided in the following paragraphs and otherwise subject to and in accordance with the Plan.
Section 3.VESTING AND EXPIRATION
The Option shall vest at a rate of one fifth per year (rounded up to the nearest whole Share) commencing on December 23, 2021 and annually thereafter ending on December 23, 2025, provided that Grantee’s employment has not terminated on or before such date unless one of the exceptions in this Section 3 is met. Any portion of the Option that is or becomes vested shall only be exercisable if, at any time during the period between the Grant Date and December 23, 2025, the reported closing price per share of Company common stock is at least twenty-five percent (25%) above the Exercise Price (as such price may be adjusted pursuant to the terms of this Option and the Plan) for twenty (20) consecutive trading days, and shall be otherwise forfeited on December 23, 2025. Subject to the provisions below and the terms of the Plan, the right to exercise the Option shall expire on December 23, 2030. Notwithstanding the foregoing, in the event that on the expiration date (i) the exercise of the Option is prohibited by applicable law or (ii) Shares may not be purchased or sold by you due to the “black-out period” of a Company policy or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the expiration date shall be delayed until 30 days following the end of the legal prohibition, black-out period or lock-up agreement.
If your employment with the Company or any of its subsidiaries terminates for any reason other than death, Disability or a Qualifying Termination, each as defined below and determined by the Committee in accordance with the Plan, then as of the date of such termination this Option shall expire as to any portion which has not yet become vested, meaning that you shall forfeit such portion in exchange for no additional consideration or payment. If prior to the Option becoming vested and exercisable in full pursuant to the preceding paragraph, your employment with the Company or any of its subsidiaries terminates by reason of your death, Disability or a Qualifying Termination, each as determined by the Committee in accordance with the Plan, then any portion of this Option which has yet to become vested or exercisable shall become immediately vested and exercisable. Notwithstanding the foregoing and regardless of reason for termination, under all circumstances other than your Qualifying Termination, any Option held less than one year from the Grant Date shall be forfeited. Nothing in the Plan or this Agreement confers any right of continuing employment with the Company or its subsidiaries. Notwithstanding the foregoing, if in the event of a Change of Control the successor to the Company does not assume this Option, then any portion of this Option which has yet to become vested and exercisable and which has not otherwise been forfeited pursuant to the provisions of this Section 3 shall become immediately vested and exercisable. Notwithstanding anything to the contrary herein, in the event your employment is terminated for Cause (as defined herein), you shall forfeit your right to receive any unvested portion of this Option, unless otherwise prohibited by law.
To the extent that this Option is vested as of the date of your termination of employment, after taking into account the vesting provisions set forth in this Section 3, then this Option shall expire on the later of (i) three (3) months following your termination of employment, (ii) three (3) months following the date on which this Option becomes exercisable, or (iii) on December 23, 2025; provided, that if such termination occurred on account of your death, Disability, or a Qualifying Termination, the Option shall expire on its original expiration date.
    - 1 -

Exhibit 10.27
For purposes of this Agreement, "Disability" means your disability as determined in accordance with applicable Company personnel policies and the Plan. The term “Qualifying Termination” means your involuntary termination of employment by the Company, without Cause, within two (2) years following a Change of Control of the Company. For this purpose, “Cause” means your dishonesty, fraud, willful misconduct, breach of fiduciary duty, conflict of interest, commission of a felony, material failure or refusal to perform your job duties in accordance with Company policies, material violation of Company policy that causes harm to the Company or its subsidiaries or other wrongful conduct of a similar nature and degree.
Section 4.RESALE AND TRANSFER RESTRICTIONS
Neither the Option nor any interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other than by will or the laws of descent and distribution. The Company may impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any re-sales by the Grantee or other subsequent transfers by the Grantee of any Shares issued as a result of the exercise of this Option, including without limitation (a) restrictions under an insider trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by Grantee and other Option holders and (с) restrictions as to the use of a specified brokerage firm for such re-sales or other transfers.
Section 5.WITHHOLDING
Regardless of any action the Company or the Grantee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Grantee acknowledges and agrees that the ultimate liability for all Tax-Related Items legally due by the Grantee is and remains the Grantee’s responsibility and that the Company and/or the Employer (i) make no representations nor undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the grant of this Option, including the grant, vesting and exercise of the Option, delivery of Shares and/or cash related to such Option or the subsequent sale of any Shares acquired pursuant to such Option, and (ii) do not commit to structure the terms or any aspect of the grant of this Option to reduce or eliminate the Grantee’s liability for Tax-Related Items. The Grantee shall pay the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold as a result of the Grantee’s participation in the Plan or receipt of this Option that cannot be satisfied by the means described below. Further, if the Grantee is subject to tax in more than one jurisdiction, the Grantee acknowledges that the Company and/or Employer (or former Employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. The Company may refuse to deliver the Shares if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.
Prior to the taxable or tax withholding event, as applicable, the Grantee shall pay, or make adequate arrangements satisfactory to the Company or to the Employer (in their sole discretion) to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company or Employer to withhold all applicable Tax-Related Items legally payable by the Grantee by (1) withholding a number of Shares otherwise deliverable equal to the Retained Share Amount (as defined below); (2) withholding from the Grantee’s wages or other cash compensation paid by the Company and/or Employer; and/or (3) withholding from proceeds of the sale of Shares acquired upon settlement of the Option (e.g. through cashless exercise), either through a voluntary sale or through a sale arranged by the Company (on the Grantee’s behalf pursuant to this authorization), to the extent permitted by the Plan Administrator. The “Retained Share Amount” shall mean a number of Shares equal to the quotient of the minimum statutory tax withholding obligation of the Company triggered by the Option on the relevant date, divided by the fair market value of one Share on the relevant date or as otherwise provided in the Plan. If the obligation for Tax-Related Items is satisfied by withholding a number of Shares as described herein, the Grantee understands that he or she shall be deemed to have been issued the full number of applicable Shares, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items.
Grantee acknowledges and understands that Grantee should consult a tax advisor regarding Grantee’s tax obligations.
Section 6.SEVERABILITY
In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
Section 7.DATA PROTECTION
The Grantee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantee’s personal data as described in this document by and among, as applicable, the Employer, and the Company and its subsidiaries for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee understands that the Company, its subsidiaries and the Employer hold certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the
    - 2 -

Exhibit 10.27
Company, details of all Options or any other entitlement to Shares awarded, canceled, purchased, exercised, vested, unvested or outstanding in the Grantee’s favor for the purpose of implementing, managing and administering the Plan (“Data”). The Grantee understands that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Grantee’s country or elsewhere, including outside the European economic area, and that the recipient country may have different data privacy laws and protections than the Grantee’s country. The Grantee understands that he/she may request a list with the names and addresses of any potential recipients of the Data by contacting the local human resources representative. The Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired under the Plan. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. The Grantee understands that he/she may, at any time, view Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the local human resources representative in writing. The Grantee understands that refusing or withdrawing consent may affect the Grantee’s ability to participate in the Plan. For more information on the consequences of refusing to consent or withdrawing consent, the Grantee understands that he/she may contact the Plan administrator at the Company.
Section 8.ACKNOWLEDGMENT AND WAIVER
By accepting the grant of this Option, the Grantee acknowledges and agrees that:
(a)the Plan is established voluntarily by the Company, and it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time unless otherwise provided in the Plan or this Agreement;
(b)the grant of Options is voluntary and occasional and does not create any contractual or other right to receive future grants of Shares or Options, or benefits in lieu of Shares or Options, even if Shares or Options have been granted repeatedly in the past;
(c)all decisions with respect to future grants, if any, shall be at the sole discretion of the Company;
(d)this Agreement shall not create a right to further employment with Employer and shall not interfere with the ability of Employer to terminate the Grantee’s employment relationship, and it is expressly agreed and understood that employment is terminable at the will of either party, insofar as permitted by law;
(e)the Grantee is receiving Options voluntarily;
(f)Option grants and resulting benefits are extraordinary items that do not constitute compensation of any kind for services of any kind rendered to the Company or the Employer, and are outside the scope of the Grantee’s employment contract, if any;
(g)Option grants and resulting benefits are not part of normal or expected compensation or salary for any purposes, including, but not limited to calculating any severance, resignation, termination, redundancy, or end of service payments, or bonuses, long-service awards, pension or retirement benefits or similar payments insofar as permitted by law;
(h)in the event that the Grantee is not an employee of the Company, this grant of Options shall not be interpreted to form an employment contract or relationship with the Company, and furthermore, this grant of Options shall not be interpreted to form an employment contract with the Employer or any subsidiary of the Company;
(i)the future value of the Shares is unknown, may increase or decrease from the date of grant or exercise of the Option and cannot be predicted with certainty;
(j)in consideration of the grant of this Option, no claim or entitlement to compensation or damages shall arise from termination or diminution in value of this Option resulting from termination of the Grantee’s employment by the Company or the Employer (for any reason whatsoever), and the Grantee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such
    - 3 -

Exhibit 10.27
claim is found by a court of competent jurisdiction to have arisen, then, by accepting the terms of this Agreement, the Grantee shall be irrevocably deemed to have waived any entitlement to pursue such claim; and
(k)the award evidenced by this Agreement is subject to all Company policies relating to the clawback and/or recoupment of compensation, as the same may be amended from time to time, and to the extent the Grantee is subject to such policies, the terms and conditions of such policies are hereby incorporated by reference into this Agreement.
Section 9.CONFIDENTIALITY
The Agreement and the Option granted hereunder are conditioned upon Grantee not disclosing this Agreement or said Option to anyone other than Grantee's spouse or financial advisor or senior management of the Company or senior members of the Company's Law, Tax, and Human Resources departments during the period prior to the exercise of said Option. If disclosure is made by Grantee to any other person not authorized by the Company, this Agreement and said Option shall be null and void and shall terminate in exchange for no additional consideration or payment. Notwithstanding any other provision of this Agreement or any other agreement, if Grantee makes a confidential disclosure of a Company trade secret to a government official or an attorney for the purpose of reporting or investigating a suspected violation of law, or in a court filing under seal, Grantee shall not be held liable under this Agreement or any other agreement, or under any federal or state trade secret law for such a disclosure. Moreover, nothing in this Agreement or any other agreement shall prevent Grantee from making a confidential disclosure of any other confidential information to a government official, to an attorney as necessary to obtain legal advice or in a court filing under seal.
Section 10.GRANT-SPECIFIC TERMS
Appendix A contains additional terms and conditions of the Agreement applicable to Grantees residing outside the U.S. In addition, Appendix A also contains information and notices regarding exchange control and certain other issues of which the Grantee (if residing outside the U.S.) should be aware that may arise as a result of participation in the Plan.
Section 11.ENFORCEMENT
This Agreement and the Option granted hereunder shall be governed by, construed, administered and enforced in accordance with the laws of the State of Delaware without reference to choice or conflict of law principles.
Section 12.EXECUTION OF AWARD AGREEMENT
Please acknowledge your acceptance of the terms of this Agreement by electronically signing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first herein above written.
FLUOR CORPORATION
        
    


        /s/ Alan Boeckmann    
By:    NAME: Alan Boeckmann
        TITLE: Executive Chairman

    - 4 -

Exhibit 10.27
APPENDIX A

Fluor Corporation Option Award
Terms For Non-U.S. Grantees



TERMS AND CONDITIONS
This Appendix A, which is part of the Agreement, includes additional terms and conditions of the Agreement that will apply to you if you are a resident in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and the Agreement.
NOTIFICATIONS
This Appendix A also includes information regarding exchange control and certain other issues of which you should be aware with respect to your participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of January 2020. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information in this Appendix A as the only source of information relating to the consequences of your participation in the Plan because such information may be out-of-date when your Options vest and/or you sell any Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation. As a result, the Company is not in a position to assure you of any particular result. You are therefore advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than that in which you are currently working, the information contained herein may not apply to you.
GRANT-SPECIFIC TERMS
Below please find country specific language that applies to Australia, Canada, Chile, Germany, the Netherlands, Russia, South Africa, Spain and the United Kingdom.
AUSTRALIA
Terms and Conditions
Prospectus Information. The “Offer Document” and “Australian Rules” contain additional terms and conditions that govern the Option. Grantees should review those documents carefully. In addition, the written or other materials provided to Grantees in connection with the Options have been prepared for the purpose of complying with the relevant United States securities regulations and applicable stock exchange requirements. The information disclosed may not be the same as that which must be disclosed in a prospectus prepared under Australian law.
Notifications
Securities Law Information. If Grantee acquires Shares pursuant to the Option and offers the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. Grantees should obtain legal advice on disclosure obligations prior to making any such offer.
Exchange Control Information. Exchange control reporting is required for cash transactions exceeding A$10,000 and international fund transfers. The Australian bank assisting with the transaction will file the report. If there is no Australian bank involved in the transfer, Grantee will be required to file the report.

    - 5 -

Exhibit 10.27

CANADA
Terms and Conditions
Form of Payment. Due to legal restrictions in Canada, and notwithstanding any language to the contrary in the Plan, Grantees are prohibited from surrendering previously owned Shares or, from attesting to the ownership of previously owned Shares, to pay the exercise price or any tax liability in connection with the Option.
Language Consent
The following provision applies to residents of Quebec:
The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention, ainsi que de tous documents, avis et procédures judiciaires, exécutés, donnés ou intentés en vertu de, ou liés directement ou indirectement à la présente convention.
Notifications
Additional Restrictions on Resale. Securities purchased under the Plan may be subject to certain restrictions on resale imposed by Canadian provincial securities laws. You are encouraged to seek legal advice prior to any resale of such securities. In general, participants resident in Canada may resell their securities in transactions carried out on exchanges outside of Canada.
Tax Reporting. The Tax Act and the regulations thereunder require a Canadian resident individual (among others) to file an information return (Form T1135) disclosing prescribed information where, at any time in a tax year, the total cost amount of such individual’s “specified foreign property” (which includes Shares) exceeds Cdn.$100,000. You should consult your own tax advisor regarding this reporting requirement.
CHILE

Terms and Conditions

There are no country-specific provisions.
Notifications
Securities Law Information. Neither the Company, the award, nor any Company shares acquired under the Plan are registered with the Chilean Registry of Securities or are under the control of the Chilean Superintendence of Securities.
Exchange Control Information. Exchange control reporting is required to remit funds for the purchase of shares exceeding US$10,000 (including cashless exercise transactions). If reporting is required, you will be responsible for filing this report with the Central Bank of Chile. In addition, you must also file a report with the Central Bank if, in a given year, you have kept investments, deposits, or credits abroad in an amount that exceeds US$5,000,000.
Tax Information. Registration of your investment in Company Shares with the Chilean Internal Revenue Service may result in more favorable tax treatment. Please consult your tax advisor for additional details.
GERMANY
Terms and Conditions
There are no country-specific provisions.
    - 6 -

Exhibit 10.27
Notifications
Exchange Control Information. Cross-border payments in excess of EUR12,500 must be reported monthly to the German Federal Bank. If Grantee uses a German bank to transfer a cross-border payment in excess of EUR12,500 in connection with the sale of Shares acquired under the Plan, the bank will file the report for you. In addition, you must report any receivables, payables, or debts in foreign currency exceeding an amount of EUR5,000,000 on a monthly basis.
THE NETHERLANDS
Terms and Conditions
There are no country-specific provisions.
Notifications
Insider-Trading Notification. Grantees should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired upon exercise of the Option. In particular, Grantees may be prohibited from effectuating certain transactions involving Shares if they have inside information about the Company. Grantees should consult their personal legal advisor if they are uncertain whether the insider-trading rules apply to them. By accepting the Agreement and participating in the Plan, Grantee acknowledges having read and understood this notification and acknowledges that it is his or her responsibility to comply with the Dutch insider-trading rules.
RUSSIA
Terms and Conditions
Securities Law Information. Grantee acknowledges that the Agreement, the grant of options, the Plan and all other materials that Grantee may receive regarding participation in the Plan do not constitute advertising or an offering of securities in Russia. The issuance of securities pursuant to the Plan has not and will not be registered in Russia and therefore, the securities described in any Plan-related documents may not be used for offering or public circulation in Russia.
Grantee further acknowledges that in no event will Shares acquired upon exercise of the options be delivered to Grantee in Russia; all Shares acquired upon exercise of the options will be maintained on Grantee’s behalf in the United States.
Grantee acknowledges that Grantee is not permitted to sell Shares directly to a Russian legal entity or resident.
Notifications
Grantee understands that Grantee is solely liable for all applicable Russian exchange control requirements (including repatriation requirements applicable to the proceeds from the sale of Shares).
SOUTH AFRICA

Terms and Conditions

There are no country-specific provisions.

Notifications

Exchange Control Information. To participate in the Plan, Grantee understands that Grantee must comply with exchange control regulations and rulings (the “Exchange Control Regulations”) in South Africa.

Because the Exchange Control Regulations change frequently and without notice, Grantee understands that Grantee should consult a legal advisor prior to the purchase or sale of shares under the Plan to ensure compliance with current regulations. Grantee understands that it is Grantee’s responsibility to comply with South African exchange control laws, and neither the Company nor your Employer will be liable for any fines or penalties resulting from failure to comply with applicable laws.
    - 7 -

Exhibit 10.27
SPAIN
Terms and Conditions
There are no country-specific provisions.

Notifications

No Special Employment or Similar Rights. Grantee understands that the Company has unilaterally, gratuitously, and discretionally decided to distribute awards under the Plan to individuals who may be employees of the Company or its subsidiaries throughout the world. The decision is a temporary decision that is entered into upon the express assumption and condition that any grant will not economically or otherwise bind the Company or any of its subsidiaries presently or in the future, other than as specifically set forth in the Plan and the terms and conditions of Grantee’s option grant. Consequently, Grantee understands that any grant is given on the assumption and condition that it shall not become a part of any employment contract (either with the Company or any of its subsidiaries) and shall not be considered a mandatory benefit, salary for any purpose (including severance compensation) or any other right whatsoever. Further, Grantee understands and freely accepts that there is no guarantee that any benefit whatsoever shall arise from any gratuitous and discretionary grant since the future value of the awards and underlying shares is unknown and unpredictable. In addition, Grantee understands that this grant would not be made but for the assumptions and conditions referred to above; thus, Grantee acknowledges and freely accepts that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, then any grant of awards shall be null and void and the Plan shall not have any effect whatsoever.

Further, the Option provides a conditional right to Shares and may be forfeited or affected by Grantee’s termination of employment, as set forth in the Agreement. For avoidance of doubt, Grantee’s rights, if any, to the Options upon termination of employment shall be determined as set forth in the Agreement, including, without limitation, where (i) Grantee is considered to be unfairly dismissed without good cause; (ii) Grantee is dismissed for disciplinary or objective reasons or due to a collective dismissal; (iii) Grantee terminates service due to a change of work location, duties or any other employment or contractual condition; or (iv) Grantee terminates service due to the Company’s or any of its subsidiaries’ unilateral breach of contract.

Securities Law Notice. The options granted under the Plan do not qualify as securities under Spanish regulations. By the grant of the options, no "offer of securities to the public", as defined under Spanish law, has taken place or will take place in Spanish territory. The present document and any other document relating to the offer of options under the Plan has not been nor will it be registered with the Comisión Nacional del Mercado de Valores (Spanish Securities Exchange Commission), and it does not constitute a public offering prospectus.
Foreign Asset and Account Reporting. To the extent that Spanish residents hold rights or assets (e.g., shares of common stock, cash, etc.) in a bank or brokerage account outside of Spain with a value in excess of €50,000 per type of right or asset as of December 31 each year, such residents are required to report information on such rights and assets on their tax return for such year. Shares of common stock constitute securities for purposes of this requirement, but Options (whether vested or unvested) are generally not considered assets or rights for purposes of this requirement.
If applicable, Spanish residents must report the assets or rights on Form 720 by no later than March 31 following the end of the relevant year. After such assets or rights are initially reported, the reporting obligation will only apply for subsequent years if the value of any previously-reported assets or rights increases by more than €20,000. Failure to comply with this reporting requirement may result in penalties.
Spanish residents are also required to electronically declare to the Bank of Spain any securities accounts (including brokerage accounts held abroad), as well as the securities held in such accounts, if the value of the transactions for all such accounts during the prior tax year or the balances in such accounts as of December 31 of the prior tax year exceeds €1,000,000. More frequent reporting is required if such transaction value or account balance exceeds €1,000,000.
Spanish residents should consult with their personal tax and legal advisors to ensure compliance with their personal reporting obligations.
Exchange Control Information. All acquisitions of foreign shares by Spanish residents must comply with exchange control regulations in Spain. Because of foreign investments requirements, the acquisition of Company shares under the Plan must be declared for statistical purposes to the Spanish Direccion General de Politica Comercial y de Inversiones Extranjeras (the “DGPCIE“). If you acquire the Shares
    - 8 -

Exhibit 10.27
through the use of a Spanish financial institution, that institution will automatically make the declaration to the DGPCIE for you. Otherwise, you must make the declaration by filling a form with the DGPCIE.
If you import the Shares acquired under the Plan into Spain, you must declare the importation of the share certificates to the DGPCIE.
In addition, you must also file a declaration of the ownership of the Shares with the Directorate of Foreign Transactions each January while the Shares are owned. These filings are made on standard forms furnished by the Directorate of Foreign Transactions.
When you receive any foreign currency payments (i.e., as a result of the sale of the Shares), you must inform the institution receiving the payment of the basis upon which such payment is made and provide certain specific information (e.g., name, address, and fiscal identification number; the name and corporate domicile of the company; the amount of the payment; the type of foreign currency received; the country of origin; and the reason for the payment).
UNITED KINGDOM
Terms and Conditions
UK Rules. The Option is granted under the “UK Rules,” which contain additional terms and conditions that govern the Option. Grantees should review the UK Rules carefully.
Notifications
There are no country-specific notifications.



    - 9 -

Exhibit 10.28
RESTRICTED STOCK UNIT AGREEMENT
This Restricted Stock Unit Agreement ("Agreement") entered into as of December 23, 2020 (the "Grant Date"), by and between Fluor Corporation, a Delaware corporation (the "Company"), and you ("Grantee" or “you”) evidences the grant to Grantee of a Stock Unit Award (“RSU Award”) pursuant to Rule 303A.08 of the New York Stock Exchange Listed Company Manual. Capitalized terms used in this Agreement and not defined herein have the meaning set forth in the Plan (as defined below).
Section 1.EMPLOYMENT INDUCEMENT AWARD
This RSU Award is an employment inducement award made in accordance with Rule 303A.08 of the New York Stock Exchange Listed Company Manual and is not granted under any stock incentive plan adopted by the Company. Notwithstanding the preceding sentence, this RSU Award shall be construed as if the RSU Award had been granted under the Fluor Corporation 2020 Performance Incentive Plan (the "Plan") in accordance with and consistent with, and shall be treated as subject to, all of the terms and conditions of the Plan, including any terms, rules or determinations made by the Committee pursuant to its administrative authority under the Plan, and such further terms as are set forth in the Plan that are applicable to awards thereunder, including without limitation provisions on adjustment of awards, non-transferability, satisfaction of tax requirements and compliance with other laws.
Section 2.RESTRICTED STOCK UNIT AWARD
The Company hereby awards Grantee restricted stock units (“RSUs”), subject to the terms and conditions set forth herein. Each RSU represents the right to receive one share of Company common stock, par value $.01 per share (“Shares”), pursuant to this RSU Award, subject to the terms and conditions set forth herein. Subject to the provisions of Section 3 and Section 4 hereof, upon the issuance to Grantee of Shares hereunder, Grantee shall also receive cash in an amount equivalent to any dividends or distributions paid or made by the Company from the date of this RSU Award to the date of the issuance of the Shares with respect to an equivalent number of Shares so issued.
Section 3.RESTRICTIONS ON SALE OR OTHER TRANSFER
Each RSU awarded to Grantee pursuant to this Agreement shall be subject to forfeiture to the Company pursuant to the terms and conditions set forth herein and each RSU may not be sold or otherwise transferred except pursuant to the following provisions:
(a)The RSUs shall be held in book entry form by the Company until (1) the restrictions set forth herein lapse in accordance with the provisions of Section 4, at which time the RSUs will be converted to Shares, or (2) the RSUs are forfeited pursuant to Section 4 hereof.
(b)No such RSUs may be sold, transferred or otherwise alienated or hypothecated so long as such RSUs are subject to the restrictions provided for in this Agreement.
(c)The Company may impose such other restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any re-sales by the Grantee or other subsequent transfers by the Grantee of any Shares issued as a result of the vesting of the RSUs, including without limitation (i) restrictions under an insider trading policy, (ii) restrictions designed to delay and/or coordinate the timing and manner of sales by Grantee and other stockholders of the Company and (iii) restrictions as to the use of a specified brokerage firm for such re-sales or other transfers.
Section 4.LAPSE OF RESTRICTIONS
The RSUs subject to this RSU Award shall vest and restrictions thereon shall lapse at a rate of one fifth of such number per year commencing with December 23, 2021 and annually thereafter ending on December 23, 2025, provided that Grantee’s employment has not terminated on or before such date unless one of the exceptions set forth below in this Section 4 is met. The Company will issue you the Shares subject to this RSU Award (as well as any cash payments related to dividends or distributions related to such Shares) as soon as reasonably possible after each date on which the applicable restrictions lapse or any other date upon which this RSU Award vests as set forth below in this Section 4.
If your employment with the Company or any of its subsidiaries terminates for any reason other than death, Disability or a Qualifying Termination, each as defined below and determined by the Committee in accordance with the Plan, then as of the date of such termination any RSUs which have yet to vest shall be forfeited by you in exchange for no additional consideration or payment. If prior to the RSUs becoming vested in full pursuant to the preceding paragraph, your employment with the Company or any of its subsidiaries terminates by reason of your death, Disability or a Qualifying Termination, each as determined by the Committee in accordance with the Plan, then any portion of this RSU Award which has yet to become vested shall become immediately vested. Notwithstanding the foregoing and regardless of the reason for termination, under all circumstances other than your Qualifying Termination, any RSUs held less than one year from the Grant Date shall be forfeited in exchange for no additional consideration or payment. Nothing in the Plan or this Agreement confers any right of continuing employment with the Company or its subsidiaries. Notwithstanding the foregoing, if in the event of a Change of Control the successor to the Company does not assume this RSU Award, then any portion of this RSU Award which has
    - 1 -

Exhibit 10.28
yet to become vested and which has not otherwise been forfeited pursuant to the provisions of this Section 4 shall become immediately vested. Notwithstanding anything to the contrary herein, in the event your employment is terminated for Cause (as defined herein), you shall forfeit the unvested RSUs in exchange for no additional consideration or payment, unless otherwise prohibited by law.
For purposes of this Agreement, “Disability” and “Change of Control” shall have the meanings given to them in Appendix B to this Agreement. The term “Qualifying Termination” means your involuntary termination of employment by the Company, without Cause, within two (2) years following a Change of Control of the Company. For this purpose, “Cause” means your dishonesty, fraud, willful misconduct, breach of fiduciary duty, conflict of interest, commission of a felony, material failure or refusal to perform your job duties in accordance with Company policies, material violation of Company policy that causes harm to the Company or its subsidiaries or other wrongful conduct of a similar nature and degree.
Section 5.ТАХ WITHHOLDING
Regardless of any action the Company or the Grantee’s employer (the “Employer”) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Grantee acknowledges and agrees that the ultimate liability for all Tax-Related Items legally due by the Grantee is and remains the Grantee’s responsibility and that the Company and/or the Employer (i) make no representations nor undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of this grant of RSUs, including the grant and vesting of RSUs, subsequent delivery of Shares and/or cash related to such RSUs or the subsequent sale of any Shares acquired pursuant to such RSUs and receipt of any dividend equivalent payments (if any) and (ii) do not commit to structure the terms or any aspect of this grant of RSUs to reduce or eliminate the Grantee’s liability for Tax-Related Items. The Grantee shall pay the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold as a result of the Grantee’s participation in the Plan or receipt of RSUs or of Shares pursuant to RSUs that cannot be satisfied by the means described below. Further, if the Grantee is subject to tax in more than one jurisdiction, the Grantee acknowledges that the Company and/or Employer (or former Employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. The Company may refuse to deliver the Shares if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items.
Prior to the taxable or tax withholding event, as applicable, the Grantee shall pay, or make adequate arrangements satisfactory to the Company or to the Employer (in their sole discretion) to satisfy all Tax-Related Items. In this regard, the Grantee authorizes the Company or Employer to withhold all applicable Tax-Related Items legally payable by the Grantee by (1) withholding a number of Shares otherwise deliverable equal to the Retained Share Amount (as defined below); (2) withholding from the Grantee’s wages or other cash compensation paid by the Company and/or Employer; and/or (3) withholding from proceeds of the sale of Shares acquired upon settlement of the RSUs, either through a voluntary sale or through a sale arranged by the Company (on the Grantee’s behalf pursuant to this authorization), to the extent permitted by the Plan Administrator. The “Retained Share Amount” shall mean a number of Shares equal to the quotient of the minimum statutory tax withholding obligation of the Company triggered by the RSUs on the relevant date, divided by the fair market value of one Share on the relevant date or as otherwise provided in the Plan. If the obligation for Tax-Related Items is satisfied by withholding a number of Shares as described herein, the Grantee understands that he or she shall be deemed to have been issued the full number of Shares subject to the settled RSUs, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of the settlement of the RSUs.
Grantee acknowledges and understands that Grantee should consult a tax advisor regarding Grantee’s tax obligations.
Section 6.SEVERABILITY
In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.
Section 7.DATA PROTECTION
The Grantee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantee’s personal data as described in this document by and among, as applicable, the Employer, and the Company and its subsidiaries for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee understands that the Company, its subsidiaries and the Employer hold certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, purchased, exercised, vested, unvested or outstanding in the Grantee’s favor for the purpose of implementing, managing and administering the Plan (“Data”). The Grantee understands that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Grantee’s country or elsewhere, including outside the European economic area, and that the recipient country may have different data privacy laws and protections than the Grantee’s country. The Grantee understands that he/she may request a list with the names and addresses of any potential recipients of the
    - 2 -

Exhibit 10.28
Data by contacting the local human resources representative. The Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired under the Plan. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. The Grantee understands that he/she may, at any time, view Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the local human resources representative in writing. The Grantee understands that refusing or withdrawing consent may affect the Grantee’s ability to participate in the Plan. For more information on the consequences of refusing to consent or withdrawing consent, the Grantee understands that he/she may contact the Plan Administrator at the Company.
Section 8.ACKNOWLEDGMENT AND WAIVER
By accepting this grant of RSUs, the Grantee acknowledges and agrees that:
(a)the Plan is established voluntarily by the Company, and it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time unless otherwise provided in the Plan or this Agreement;
(b)the grant of RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of Shares or RSUs, or benefits in lieu of Shares or RSUs, even if Shares or RSUs have been granted repeatedly in the past;
(c)all decisions with respect to future grants, if any, shall be at the sole discretion of the Company;
(d)this Agreement shall not create a right to further employment with Employer and shall not interfere with the ability of Employer to terminate the Grantee’s employment relationship, and it is expressly agreed and understood that employment is terminable at the will of either party, insofar as permitted by law;
(e)the Grantee is receiving RSUs voluntarily;
(f)RSU awards and resulting benefits are extraordinary items that do not constitute compensation of any kind for services of any kind rendered to the Company or the Employer, and are outside the scope of the Grantee’s employment contract, if any;
(g)RSU awards and resulting benefits are not part of normal or expected compensation or salary for any purposes, including, but not limited to calculating any severance, resignation, termination, redundancy, or end of service payments, or bonuses, long-service awards, pension or retirement benefits or similar payments insofar as permitted by law;
(h)in the event that the Grantee is not an employee of the Company, this award of RSUs shall not be interpreted to form an employment contract or relationship with the Company, and furthermore, this award of RSUs shall not be interpreted to form an employment contract with the Employer or any subsidiary of the Company;
(i)the future value of the Shares is unknown, may increase or decrease from the date of award or vesting of the RSU and cannot be predicted with certainty;
(j)in consideration of this grant of RSUs, no claim or entitlement to compensation or damages shall arise from termination or diminution in value of this grant of RSUs resulting from termination of the Grantee’s employment by the Company or the Employer (for any reason whatsoever), and the Grantee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by accepting the terms of this Agreement, the Grantee shall be irrevocably deemed to have waived any entitlement to pursue such claim; and
(k)the award evidenced by this Agreement is subject to all Company policies relating to the clawback and/or recoupment of compensation, as the same may be amended from time to time, and to the extent the Grantee is subject to such policies, the terms and conditions of such policies are hereby incorporated by reference into this Agreement.
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Exhibit 10.28
Section 9.CONFIDENTIALITY
This Agreement and the receipt of any RSUs hereunder are conditioned upon Grantee not disclosing this Agreement or said receipt to anyone other than Grantee's spouse, financial advisor, senior management of the Company or members of the Company's Law, Tax, and Human Resources departments. If unauthorized disclosure is made to any other person, the RSUs received hereunder shall be forfeited in exchange for no additional payment or consideration. Notwithstanding any other provision of this Agreement or any other agreement, if Grantee makes a confidential disclosure of a Company trade secret to a government official or an attorney for the purpose of reporting or investigating a suspected violation of law, or in a court filing under seal, Grantee shall not be held liable under this Agreement or any other agreement, or under any federal or state trade secret law for such a disclosure. Moreover, nothing in this Agreement or any other agreement shall prevent Grantee from making a confidential disclosure of any other confidential information to a government official, to an attorney as necessary to obtain legal advice or in a court filing under seal.
Section 10.GRANT-SPECIFIC TERMS
Appendix A contains additional terms and conditions of the Agreement applicable to Grantees residing outside the United States. In addition, Appendix A also contains information and notices regarding exchange control and certain other issues of which the Grantee (if residing outside the U.S.) should be aware that may arise as a result of participation in the Plan. Appendix B contains additional terms in compliance with Section 409A of the United States Internal Revenue Code.
Section 11.ENFORCEMENT
This Agreement and the RSUs granted hereunder shall be governed by, construed, administered and enforced in accordance with the laws of the State of Delaware without reference to choice or conflict of law principles.
Section 12.EXECUTION OF AWARD AGREEMENT
Please acknowledge your acceptance of the terms of this Agreement by electronically signing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first herein above written.

        FLUOR CORPORATION

        

        /s/ Alan Boeckmann    

        By:    NAME: Alan Boeckmann
            TITLE: Executive Chairman

    - 4 -

Exhibit 10.28
APPENDIX A

Fluor corporation
Restricted Stock Unit AWARD
TERMS FOR NON-U.S. GRANTEES


TERMS AND CONDITIONS
This Appendix A, which is part of the Agreement, includes additional terms and conditions of the Agreement that will apply to you if you are a resident in one of the countries listed below. Capitalized terms used but not defined herein shall have the same meanings assigned to them in the Plan and the Agreement.
NOTIFICATIONS
This Appendix A also includes information regarding exchange control and certain other issues of which you should be aware with respect to your participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of January 2020. Such laws are often complex and change frequently. As a result, the Company strongly recommends that you not rely on the information in this Appendix A as the only source of information relating to the consequences of your participation in the Plan because such information may be out-of-date when your RSUs vest and/or you sell any Shares acquired under the Plan.
In addition, the information contained herein is general in nature and may not apply to your particular situation. As a result, the Company is not in a position to assure you of any particular result. You are therefore advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.
Finally, if you are a citizen or resident of a country other than that in which you are currently working, the information contained herein may not apply to you.
GRANT-SPECIFIC TERMS
Below please find country specific language that applies to Australia, Canada, Chile, Germany, the Netherlands, Russia, South Africa, Spain and the United Kingdom.
AUSTRALIA
Terms and Conditions
Prospectus Information. The “Offer Document” and “Australian Rules” contain additional terms and conditions that govern the RSU. Grantees should review those documents carefully. In addition, the written or other materials provided to Grantees in connection with the RSUs have been prepared for the purpose of complying with the relevant United States securities regulations and applicable stock exchange requirements. The information disclosed may not be the same as that which must be disclosed in a prospectus prepared under Australian law.
RSUs Settled in Shares Only. Notwithstanding anything to the contrary in the Plan and/or the Agreement, Grantee understands that RSUs granted to Grantee shall be paid in Shares only and do not provide any right for Grantee to receive a cash payment.
Notifications
Securities Law Information. If Grantee acquires Shares pursuant to the RSU and offers the Shares for sale to a person or entity resident in Australia, the offer may be subject to disclosure requirements under Australian law. Grantees should obtain legal advice on disclosure obligations prior to making any such offer.
Exchange Control Information. Exchange control reporting is required for cash transactions exceeding A$10,000 and international fund transfers. The Australian bank assisting with the transaction will file the report. If there is no Australian bank involved in the transfer, Grantee will be required to file the report.
    - 5 -

Exhibit 10.28
CANADA
Terms and Conditions
Form of Payment. Due to legal restrictions in Canada, and notwithstanding any language to the contrary in the Plan, Grantees are prohibited from surrendering previously owned Shares, or from attesting to the ownership of previously owned Shares, to pay any tax liability in connection with the RSUs. For the avoidance of ambiguity, withholding in Shares for this RSU Award is permissible.
RSUs Settled in Shares Only. Notwithstanding anything to the contrary in the Plan and/or the Agreement, Grantee understands that RSUs granted to Grantee shall be paid in Shares only and do not provide any right for Grantee to receive a cash payment.
Language Consent
The following provision applies to residents of Quebec:
The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices, and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention, ainsi que de tous documents, avis et procédures judiciaires, exécutés, donnés ou intentés en vertu de, ou liés directement ou indirectement à la présente convention.
Notifications
Additional Restrictions on Resale. Securities acquired under the Plan may be subject to certain restrictions on resale imposed by Canadian provincial securities laws. You are encouraged to seek legal advice prior to any resale of such securities. In general, participants resident in Canada may resell their securities in transactions carried out on exchanges outside of Canada.
Tax Reporting. The Tax Act and the regulations thereunder require a Canadian resident individual (among others) to file an information return (Form T1135) disclosing prescribed information where, at any time in a tax year, the total cost amount of such individual’s “specified foreign property” (which includes Shares) exceeds Cdn.$100,000. You should consult your own tax advisor regarding this reporting requirement.
CHILE

Terms and Conditions

There are no country-specific provisions.
Notifications
Securities Law Information. Neither the Company, the award, nor any Company shares acquired under the Plan are registered with the Chilean Registry of Securities or are under the control of the Chilean Superintendence of Securities.

Exchange Control Information. If exchange control reporting is required , you will be responsible for filing the report with the Central Bank of Chile. In addition, you must also file a report with the Central Bank if, in a given year, you have kept investments, deposits, or credits abroad in an amount that exceeds US$5,000,000.

Tax Information. Registration of your investment in Company shares with the Chilean Internal Revenue Service may result in more favorable tax treatment. Please consult your tax advisor for additional details.
GERMANY
Terms and Conditions
There are no country-specific provisions.
    - 6 -

Exhibit 10.28
Notifications
Exchange Control Information. Cross-border payments in excess of EUR12,500 must be reported monthly to the German Federal Bank. If Grantee uses a German bank to transfer a cross-border payment in excess of EUR12,500 in connection with the sale of Shares acquired under the Plan, the bank will file the report for you. In addition, you must report any receivables, payables, or debts in foreign currency exceeding an amount of EUR5,000,000 on a monthly basis.
THE NETHERLANDS
Terms and Conditions
There are no country-specific provisions.
Notifications
Insider-Trading Notification. Grantees should be aware of the Dutch insider-trading rules, which may impact the sale of Shares acquired upon vesting of the RSU. In particular, Grantees may be prohibited from effectuating certain transactions involving Shares if they have inside information about the Company. Grantees should consult their personal legal advisor if they are uncertain whether the insider-trading rules apply to them. By accepting the Agreement and participating in the Plan, Grantee acknowledges having read and understood this notification and acknowledges that it is his or her responsibility to comply with the Dutch insider-trading rules.
RUSSIA
Terms and Conditions
Securities Law Information. Grantee acknowledges that the Agreement, the grant of RSUs, the Plan and all other materials Grantee may receive regarding participation in the Plan do not constitute advertising or an offering of securities in Russia. The issuance of securities pursuant to the Plan has not and will not be registered in Russia and therefore, the securities described in any Plan-related documents may not be used for offering or public circulation in Russia.
Grantee further acknowledges that in no event will Shares acquired upon vesting of the RSUs be delivered to Grantee in Russia; all Shares acquired upon vesting of the RSUs will be maintained on Grantee’s behalf in the United States.
Grantee acknowledges that Grantee is not permitted to sell Shares directly to a Russian legal entity or resident.
Notifications
Grantee understands that Grantee is solely liable for all applicable Russian exchange control requirements (including repatriation requirements applicable to the proceeds from the sale of Shares).
SOUTH AFRICA

Terms and Conditions

There are no country-specific provisions.

Notifications

Exchange Control Information. To participate in the Plan, Grantee understands that Grantee must comply with exchange control regulations and rulings (the “Exchange Control Regulations”) in South Africa.

For RSUs, because no transfer of funds from South Africa is required, no filing or reporting requirements should apply when the RSUs, if any, are granted or when shares are issued upon vesting and settlement of the RSUs.

Because the Exchange Control Regulations change frequently and without notice, Grantee understands that Grantee should consult a legal advisor prior to the purchase or sale of shares under the Plan to ensure compliance with current regulations. Grantee understands
    - 7 -

Exhibit 10.28
that it is Grantee’s responsibility to comply with South African exchange control laws, and neither the Company nor Grantee’s Employer will be liable for any fines or penalties resulting from failure to comply with applicable laws.
SPAIN

Terms and Conditions

There are no country-specific provisions.

Notifications

No Special Employment or Similar Rights. Grantee understands that the Company has unilaterally, gratuitously, and discretionally decided to distribute awards under the Plan to individuals who may be employees of the Company or its subsidiaries throughout the world. The decision is a temporary decision that is entered into upon the express assumption and condition that any grant will not economically or otherwise bind the Company or any of its subsidiaries presently or in the future, other than as specifically set forth in the Plan and the terms and conditions of Grantee’s RSU grant. Consequently, Grantee understands that any grant is given on the assumption and condition that it shall not become a part of any employment contract (either with the Company or any of its subsidiaries) and shall not be considered a mandatory benefit, salary for any purpose (including severance compensation) or any other right whatsoever. Further, Grantee understands and freely accepts that there is no guarantee that any benefit whatsoever shall arise from any gratuitous and discretionary grant since the future value of the awards and underlying shares is unknown and unpredictable. In addition, Grantee understands that this grant would not be made but for the assumptions and conditions referred to above; thus, Grantee acknowledges and freely accepts that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, then any grant of awards shall be null and void and the Plan shall not have any effect whatsoever.

Further, the RSU Award provides a conditional right to Shares and may be forfeited or affected by Grantee’s termination of employment, as set forth in the Agreement. For avoidance of doubt, Grantee’s rights, if any, to the RSUs upon termination of employment shall be determined as set forth in the Agreement, including, without limitation, where (i) Grantee is considered to be unfairly dismissed without good cause; (ii) Grantee is dismissed for disciplinary or objective reasons or due to a collective dismissal; (iii) Grantee terminates service due to a change of work location, duties or any other employment or contractual condition; or (iv) Grantee terminates service due to the Company’s or any of its subsidiaries’ unilateral breach of contract.

Securities Law Notice. The RSUs granted under the Plan do not qualify as securities under Spanish regulations. By the grant of RSUs, no "offer of securities to the public", as defined under Spanish law, has taken place or will take place in Spanish territory. The present document and any other document relating to the offer of RSUs under the Plan has not been nor will it be registered with the Comisión Nacional del Mercado de Valores (Spanish Securities Exchange Commission), and it does not constitute a public offering prospectus.
Foreign Asset and Account Reporting. To the extent that Spanish residents hold rights or assets (e.g., shares of common stock, cash, etc.) in a bank or brokerage account outside of Spain with a value in excess of €50,000 per type of right or asset as of December 31 each year, such residents are required to report information on such rights and assets on their tax return for such year. Shares of common stock constitute securities for purposes of this requirement, but unvested rights (e.g., RSUs) are not considered assets or rights for purposes of this requirement.
If applicable, Spanish residents must report the assets or rights on Form 720 by no later than March 31 following the end of the relevant year. After such assets or rights are initially reported, the reporting obligation will only apply for subsequent years if the value of any previously-reported assets or rights increases by more than €20,000. Failure to comply with this reporting requirement may result in penalties.
Spanish residents are also required to electronically declare to the Bank of Spain any securities accounts (including brokerage accounts held abroad), as well as the securities held in such accounts, if the value of the transactions for all such accounts during the prior tax year or the balances in such accounts as of December 31 of the prior tax year exceeds €1,000,000. More frequent reporting is required if such transaction value or account balance exceeds €1,000,000.
Spanish residents should consult with their personal tax and legal advisors to ensure compliance with their personal reporting obligations.
Exchange Control Information. All acquisitions of foreign shares by Spanish residents must comply with exchange control regulations in Spain. Because of foreign investments requirements, the acquisition of Company shares under the Plan must be declared for statistical purposes to the Spanish Direccion General de Politica Comercial y de Inversiones Extranjeras (the “DGPCIE“). If you acquire the Shares
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Exhibit 10.28
through the use of a Spanish financial institution, that institution will automatically make the declaration to the DGPCIE for you. Otherwise, you must make the declaration by filling a form with the DGPCIE.
If you import the Shares acquired under the Plan into Spain, you must declare the importation of the share certificates to the DGPCIE.
In addition, you must also file a declaration of the ownership of the Shares with the Directorate of Foreign Transactions each January while the Shares are owned. These filings are made on standard forms furnished by the Directorate of Foreign Transactions.
When you receive any foreign currency payments (i.e., as a result of the sale of the Shares), you must inform the institution receiving the payment of the basis upon which such payment is made and provide certain specific information (e.g., name, address, and fiscal identification number; the name and corporate domicile of the company; the amount of the payment; the type of foreign currency received; the country of origin; and the reason for the payment).
UNITED KINGDOM
Terms and Conditions
UK Rules. The RSU Award is granted under the “UK Rules,” which contain additional terms and conditions that govern the RSU Award. Grantees should review the UK Rules carefully.
Notifications
There are no country-specific notifications.
.
APPENDIX B
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Exhibit 10.28
Compliance with Section 409A of the Internal Revenue Code
(a)    It is intended that the provisions of this Agreement comply with Section 409A of the U.S. Internal Revenue Code (“Section 409A”), and all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A.
(b)    Neither Grantee nor any of Grantee’s creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A) payable under this Agreement to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any deferred compensation (within the meaning of Section 409A) payable to Grantee or for Grantee’s benefit under this Agreement may not be reduced by, or offset against, any amount owing by Grantee to the Company or any of its subsidiaries.
(c)    If, at the time of Grantee’s separation from service (within the meaning of Section 409A), (i) Grantee is a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date pursuant to Section 4 of this Agreement but shall instead pay it, without interest, on the first business day after such six-month period or, if earlier, upon the Grantee’s death.
(d)    Notwithstanding anything to the contrary contained herein, for the purpose of this Agreement, (i) if the RSUs have not previously been forfeited, the RSUs shall vest on a Disability, which shall mean that the Grantee is considered disabled in accordance with U.S. Treasury Regulations section 1.409A-3(i)(4), determined as if all permissible provisions of such regulation were in effect, and (ii) a Change of Control of the Company is considered to have occurred with respect to the Grantee upon the occurrence with respect to the Grantee of a change in the ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, as determined in accordance with U.S. Treasury Regulations section 1.409A-3(i)(5).
(e)    Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A, the Company reserves the right to make amendments to this Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. In any case, Grantee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on Grantee or for Grantee’s account in connection with this Agreement (including, without limitation, any taxes and penalties under Section 409A), and neither the Company nor any of its subsidiaries shall have any obligation to indemnify or otherwise hold Grantee harmless from any or all of such taxes or penalties.

    - 10 -

Exhibit 10.29
Summary of Fluor Corporation Non-Management Director Compensation

Cash Compensation

Annual Retainer: $ 125,000
Annual Committee Chair Retainer:
Audit Committee Chair: $ 20,000
   Commercial Strategies and Operational Risk Committee Chair:
$ 15,000
Governance Committee Chair: $ 15,000
Organization and Compensation Committee Chair: $ 15,000
Lead Independent Director Retainer: $ 35,000
Non-Committee Chair Member of the Executive Committee: $ 10,000

Retainers are paid quarterly in cash and can be deferred at the director’s election under the Fluor Corporation 409A Director Deferred Compensation Program (the “Deferred Compensation Program”). Effective January 1, 2013, directors no longer receive a 25% premium on the deferred amount deemed invested in company stock via the Deferred Compensation Program.

Equity Compensation

Each non-management director receives an annual grant of restricted stock units with a total market value of $155,000. The grant is made on the date of the annual meeting of shareholders. Non-management directors joining the Board after the date of the annual meeting receive a pro rata award on the date of their appointment to the Board. The restricted stock units vest immediately upon grant. Directors can defer such units at their election under the Deferred Compensation Program.

Other Information

Fluor Corporation reimburses non-management directors for their travel and related expenses in connection with attending Board meetings and Board-related activities. Directors also receive life insurance ($75,000 in coverage) and business travel accident insurance ($250,000 in coverage). Directors’ charitable contributions that meet the guidelines of the Company’s employee charitable matching gift program are eligible for matching funds from the Company in an amount up to $5,000 per year.


Exhibit 10.32
FORM OF RESTRICTED STOCK UNIT AGREEMENT

This Restricted Stock Unit Agreement (this "Agreement") entered into as of [DATE] (the “Grant Date”), by and between Fluor Corporation, a Delaware corporation (the “Company”), and you ("Grantee" or “you”) evidences and confirms the grant to Grantee of a Restricted Stock Unit Award (“RSU Award”) under the Fluor Corporation 2020 Performance Incentive Plan (as amended from time to time, the "Plan"). Capitalized terms used in this Agreement and not defined herein have the meaning set forth in the Plan.
Section 1.    AWARD SUBJECT TO PLAN
This RSU Award is made subject to all of the terms and conditions of this Agreement and the Plan, including any terms, rules or determinations made by the Committee, pursuant to its administrative authority under the Plan and such further terms as are set forth in the Plan that are applicable to awards thereunder, including without limitation provisions on adjustment of awards, non-transferability, satisfaction of tax requirements and compliance with other laws.
Section 2.    RESTRICTED STOCK UNIT AWARD
The Company hereby awards Grantee [X,XXX] restricted stock units (“RSUs”) pursuant to the Plan, subject to the terms and conditions set forth herein. Each RSU represents the right to receive one share of Company common stock, par value $.01 per share (“Shares”), pursuant to this RSU Award, subject to the terms and conditions set forth herein. Subject to the provisions of Section 3 hereof, upon the issuance to Grantee of Shares hereunder, Grantee shall also receive cash in an amount equivalent to any dividends or distributions paid or made by the Company from the date of this RSU Award to the date of the issuance of the Shares with respect to an equivalent number of Shares so issued. All or a portion of this RSU Award, as well as associated dividends or dividend equivalents, may be further deferred by Grantee pursuant to the terms of the Fluor Corporation 409A Director Deferred Compensation Program. The RSUs shall be held in book entry form by the Company until the RSUs are distributed in accordance with the provisions of Section 3, at which time the RSUs will be converted to Shares.
Section 3.    VESTING
The RSUs subject to this RSU Award shall be fully vested upon grant. Subject to the terms of this Award, on the Grant Date , the Shares subject to this RSU Award shall be distributed to Grantee, unless further deferred in accordance with Company policies and procedures and in accordance with Section 409A of the Code.
Section 4.    ТАХ WITHHOLDING
Regardless of any action the Company takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”), the Grantee acknowledges and agrees that the ultimate liability for all Tax-Related Items legally due by the Grantee is and remains the Grantee’s responsibility and that the Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of this grant of RSUs, including the grant and vesting of the RSUs, subsequent delivery of Shares and/or cash related to such RSUs or the subsequent sale of any Shares acquired pursuant to such RSUs and receipt of any dividend equivalent payments (if any) and (ii) does not commit to structure the terms or any aspect of this grant of RSUs to reduce or eliminate the Grantee’s liability for Tax-Related Items. The Grantee shall pay the Company any amount of Tax-Related Items that the Company may be required to withhold as a result of the Grantee’s participation in the Plan or the Grantee’s receipt of RSUs or of Shares pursuant to RSUs. Further, if the Grantee is subject to tax in more than one jurisdiction, the Grantee acknowledges that the Company may be required to withhold or account for Tax-Related Items in more than one jurisdiction.

Exhibit 10.32
Grantee acknowledges and understands that Grantee should consult a tax advisor regarding Grantee’s tax obligations prior to such settlement or disposition.
Section 5.    SEVERABILITY
In the event that one or more of the provisions of this Agreement are invalidated for any reason by a court of competent jurisdiction, any provision so invalidated will be deemed to be separable from the other provisions hereof, and the remaining provisions hereof will continue to be valid and fully enforceable.
Section 6.    DATA PROTECTION
The Grantee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantee’s personal data as described in this document by and among, as applicable, the Company and its Subsidiaries for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan. The Grantee understands that the Company and its Subsidiaries hold certain personal information about the Grantee, including, but not limited to, name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all options or any other entitlement to Shares awarded, canceled, purchased, exercised, vested, unvested or outstanding in the Grantee’s favor for the purpose of implementing, managing and administering the Plan (“Data”). The Grantee understands that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Grantee’s country or elsewhere, including outside the european economic area, and that the recipient country may have different data privacy laws and protections than the Grantee’s country. The Grantee understands that he/she may request a list with the names and addresses of any potential recipients of the Data by contacting the local human resources representative. The Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired under the Plan. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. The Grantee understands that he/she may, at any time, view Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the local human resources representative in writing. The Grantee understands that refusing or withdrawing consent may affect the Grantee’s ability to participate in the Plan. For more information on the consequences of refusing to consent or withdrawing consent, the Grantee understands that he/she may contact the Stock Plan Administrator at the Company.
Section 7.    ACKNOWLEDGMENT AND WAIVER
By accepting this grant of RSUs, the Grantee acknowledges and agrees that:
(a)     the Plan is established voluntarily by the Company, it is discretionary in nature and may be modified, amended, suspended or terminated by the Company at any time unless otherwise provided in the Plan or this Agreement;

(b)     the grant of RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of Shares or RSUs, or benefits in lieu of Shares or RSUs, even if Shares or RSUs have been granted repeatedly in the past;

(c)     all decisions with respect to future grants, if any, will be at the sole discretion of the Company;

Exhibit 10.32

(d)     the Grantee is participating voluntarily in the Plan;

(e)     RSU awards and resulting benefits are an extraordinary item that does not constitute compensation of any kind for services of any kind rendered to the Company;

(f)     this award of RSUs will not be interpreted to form an employment contract or relationship with the Company;

(g)     the future value of the Shares is unknown, may increase or decrease from the Grant Date and cannot be predicted with certainty; and

(h)     in consideration of this grant of RSUs, no claim or entitlement to compensation or damages shall arise from termination of this grant of RSUs or diminution in value of this grant of RSUs resulting from termination of the Grantee’s directorship by the Company (for any reason whatsoever) and the Grantee irrevocably releases the Company from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by accepting the terms of this Agreement, the Grantee shall be deemed irrevocably to have waived any entitlement to pursue such claim.

Section 8.    ADDITIONAL LANGUAGE
Appendix A contains additional language regarding Section 409A of the United States Internal Revenue Code.
Section 9.    NONTRANSFERABILITY
Grantee acknowledges and agrees that no RSU Award and no other right under the Plan, contingent or otherwise, may be sold, assigned or otherwise transferred or made subject to any encumbrance, pledge, or charge of any nature.
Section 10.    ENFORCEMENT
This Agreement will be construed, administered and enforced in accordance with the laws of the State of Delaware.
Section 11.    EXECUTION OF AWARD AGREEMENT
Please acknowledge your acceptance of the terms and conditions of this Agreement by signing this Agreement and returning it to Executive Compensation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first herein above written.

IMAGE_01B.JPG
                            FLUOR CORPORATION                                            
                            
                            by:        
                            
                             John R. Reynolds
                             Chief Legal Officer & Secretary



Exhibit 10.32
                                 
         Grantee

Exhibit 10.32

APPENDIX A

Compliance with Section 409A of the Internal Revenue Code

(a)    It is intended that the provisions of this Agreement comply with Section 409A of the U.S. Internal Revenue Code (“Section 409A”), and all provisions of this Agreement shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes and penalties under Section 409A.

(b)    Neither Grantee nor any of Grantee’s creditors or beneficiaries shall have the right to subject any deferred compensation (within the meaning of Section 409A) payable under this Agreement to any anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment or garnishment. Except as permitted under Section 409A, any deferred compensation (within the meaning of Section 409A) payable to Grantee or for Grantee’s benefit under this Agreement may not be reduced by, or offset against, any amount owing by Grantee to the Company or any of its subsidiaries.

(c)    If, at the time of Grantee’s separation from service (within the meaning of Section 409A), (i) Grantee is a specified employee (within the meaning of Section 409A and using the identification methodology selected by the Company from time to time) and (ii) the Company shall make a good faith determination that an amount payable hereunder constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company shall not pay such amount on the otherwise scheduled payment date but shall instead pay it, without interest, on the first business day after such six-month period or, if earlier, upon the Grantee’s death.

(d)    Notwithstanding anything to the contrary contained herein, for the purpose of this Agreement, (i) Grantee shall not be considered permanently and totally disabled unless Grantee is considered disabled in accordance with U.S. Treasury Regulations section 1.409A-3(i)(4), determined as if all permissible provisions of such regulation were in effect, and (ii) a Change of Control of the Company shall not be considered to have occurred unless there occurs a change in the ownership or effective control of the Company, or a change in the ownership of a substantial portion of the assets of the Company, as determined in accordance with U.S. Treasury Regulations section 1.409A-3(i)(5).

(e)    Notwithstanding any provision of this Agreement to the contrary, in light of the uncertainty with respect to the proper application of Section 409A, the Company reserves the right to make amendments to this Agreement as the Company deems necessary or desirable to avoid the imposition of taxes or penalties under Section 409A. In any case, Grantee shall be solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on Grantee or for Grantee’s account in connection with this Agreement (including, without limitation, any taxes and penalties under Section 409A), and neither the Company nor any of its subsidiaries shall have any obligation to indemnify or otherwise hold Grantee harmless from any or all of such taxes or penalties.



Exhibit 10.48

EXECUTION COPY
IMAGE_01A.JPG
$1,650,000,000
SECOND AMENDED AND RESTATED
REVOLVING LOAN AND LETTER OF CREDIT FACILITY AGREEMENT

among
FLUOR CORPORATION,
as the Borrower,

BNP PARIBAS,
as Administrative Agent and an Issuing Lender,


BANK OF AMERICA, N.A.
as Syndication Agent,

CITIBANK, N.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents,

and
THE LENDERS PARTY HERETO
February 19, 2021
BNP PARIBAS SECURITIES CORP.,
BofA SECURITIES, INC.,
CITIBANK, N.A.
and WELLS FARGO SECURITIES, LLC
as Joint Bookrunners and Joint Lead Arrangers
    



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LIST OF EXHIBITS AND SCHEDULES

EXHIBIT A    [INTENTIONALLY OMITTED]
EXHIBIT B    FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT C    FORM OF SECRETARY/ASSISTANT SECRETARY CERTIFICATE
EXHIBIT D    FORM OF NOTICE OF REVOLVING BORROWING
EXHIBIT E    FORM OF NOTICE OF CONVERSION/CONTINUATION
EXHIBIT F    FORM OF REVOLVING NOTE
EXHIBIT G-1    FORM OF U.S. TAX COMPLIANCE CERTIFICATE
EXHIBIT G-2    FORM OF U.S. TAX COMPLIANCE CERTIFICATE
EXHIBIT G-3    FORM OF U.S. TAX COMPLIANCE CERTIFICATE
EXHIBIT G-4    FORM OF U.S. TAX COMPLIANCE CERTIFICATE
EXHIBIT H    FORM OF APPLICATION

SCHEDULE 1.01(a)    COMMITMENTS AND APPLICABLE PERCENTAGES
SCHEDULE 1.01(b)    EXISTING LETTERS OF CREDIT
SCHEDULE 5.08    EXISTING LIENS
SCHEDULE 5.15    EXISTING DEBT
SCHEDULE 5.18    EXISTING TRANSACTIONS WITH AFFILIATES
SCHEDULE 5.20    EXISTING RESTRICTIVE AGREEMENTS
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SECOND AMENDED AND RESTATED
REVOLVING LOAN AND LETTER OF CREDIT FACILITY AGREEMENT
SECOND AMENDED AND RESTATED REVOLVING LOAN AND LETTER OF CREDIT FACILITY AGREEMENT (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) dated as of February 19, 2021 among FLUOR CORPORATION, the LENDERS party hereto from time to time, and BNP PARIBAS, as Administrative Agent and an Issuing Lender.
WHEREAS, the Borrower, Fluor B.V., the lenders party thereto and BNP Paribas, as administrative agent thereunder, are currently party to that certain U.S.$1,700,000,000 Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 25, 2016, (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”).
WHEREAS, the Borrower, the Lenders, the Departing Lenders (as hereafter defined) and the Administrative Agent have agreed (a) to enter into this Agreement in order to (i) amend and restate the Existing Credit Agreement in its entirety; (ii) re-evidence the “Obligations” under, and as defined in, the Existing Credit Agreement, which shall be repayable in accordance with the terms of this Agreement; and (iii) set forth the terms and conditions under which the Lenders will, from time to time, make loans and extend other financial accommodations to or for the benefit of the Borrower and (b) that each Departing Lender shall cease to be a party to the Existing Credit Agreement as evidenced by its execution and delivery of its Departing Lender Signature Page.
WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the Existing Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but that this Agreement amend and restate in its entirety the Existing Credit Agreement and modify and re-evidence the obligations and liabilities of the Borrower outstanding thereunder, which shall be payable in accordance with the terms hereof.
WHEREAS, it is also the intent of the Borrower to confirm that all obligations under the applicable “Loan Documents” (as referred to and defined in the Existing Credit Agreement) shall continue in full force and effect as modified or restated by the Loan Documents (as referred to and defined herein) and that, from and after the Closing Date, all references to the “Credit Agreement” contained in any such existing “Loan Documents” shall be deemed to refer to this Agreement.
WHEREAS, it is also the intent of the parties hereto that Fluor B.V. be terminated as a Borrower under the Existing Credit Agreement concurrently with the effectiveness of this Agreement on the Closing Date.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto agree that the Existing Credit Agreement is hereby amended and restated as follows:
ARTICLE I

DEFINITIONS
1

SECTION 1.01.    Definitions.
The following terms, as used herein, have the following meanings:
“Acquisition” means (i) any acquisition (whether by purchase, merger, consolidation or otherwise) or series of related acquisitions by the Borrower or any Subsidiary of (a) all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product or line of business of) any Person or (b) all or substantially all the Equity Interests in a Person or division or line of business of a Person.
“Additional Commitment Lender” has the meaning specified in Section 2.25(d).
“Adjusted CDOR Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars for any Interest Period, an interest rate per annum equal to (a) the CDOR Rate for such Interest Period multiplied by (b) the Eurocurrency Rate Reserve Rate.
“Adjusted EURIBO Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro for any Interest Period, an interest rate per annum equal to (a) the EURIBO Rate for such Interest Period multiplied by (b) the Eurocurrency Rate Reserve Rate.
“Adjusted LIBO Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in any Agreed Loan Currency (other than euro or Canadian Dollars) for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Eurocurrency Rate Reserve Rate.
“Administrative Agent” means BNPP (including its branches and affiliates), in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Account” means the account of the Administrative Agent in respect of any Foreign Loan Currency as the Administrative Agent shall specify in writing to the Credit Parties from time to time.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person at any date, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person as of such date.
“Aggregate Commitments” means the Commitments of all the Lenders, which as of the Closing Date is $1,650,000,000, as such amount may be increased or reduced from time to time, as the case may be, pursuant to the terms and conditions hereof.
“Agreed Currencies” means, collectively, the Agreed Loan Currencies and the Foreign LC Currencies.
“Agreed Loan Currencies” means, collectively, Dollars and Foreign Loan Currencies.
“Agreement” has the meaning assigned to such term in the introductory paragraph.
“Ancillary Document” has the meaning specified in Section 8.09.
2

“Applicable LC Sublimit” means with respect to any Issuing Lender, such amount as agreed to in writing by the Borrower and such Issuing Lender as such amount may be decreased or increased from time to time with the written consent of the Borrower, the Administrative Agent and such Issuing Lender.
“Applicable Percentage” means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time. If the Commitment of each Lender and the obligation of the Issuing Lenders to issue Letters of Credit have been terminated pursuant to Section 6.02 or if the Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 1.01(a) or in the Assignment and Assumption Agreement or Incremental Joinder Agreement or other documentation contemplated hereby pursuant to which such Lender becomes a party hereto, as applicable.
“Applicable Rate” means, from time to time, the following rates per annum, based upon the Ratings as set forth below:
Applicable Rate for Revolving Advances
Pricing Level Ratings
S&P/Moody’s 		Applicable Rate for Commitment Fees Eurocurrency Rate Revolving Advances Base Rate Revolving Advances
1 BBB+/Baa1 or better 15.0 bps 137.5 bps 37.5 bps
2 BBB/Baa2 20.0 bps 162.5 bps 62.5 bps
3 BBB-/Baa3 25.0 bps 187.5 bps 87.5 bps
4 BB+/Ba1 35.0 bps 212.5 bps 112.5 bps
5 BB/Ba2 or worse 45.0 bps 237.5 bps 137.5 bps

Pricing Level Ratings
S&P/Moody’s
Applicable Rate for Financial Letters
of Credit
Applicable Rate for Performance Letters
of Credit
1 BBB+/Baa1 or better 137.5 bps 77.0 bps
2 BBB/Baa2 162.5 bps 91.0 bps
3 BBB-/Baa3 187.5 bps 105.0 bps
4 BB+/Ba1 212.5 bps 119.0 bps
5 BB/Ba2 or worse 237.5 bps 133.0 bps

“Ratings” means the ratings of the non-credit-enhanced, senior  unsecured long-term debt of the Borrower as set forth by S&P  and Moody’s; provided that if no such rating is available, “Ratings” shall mean the Borrower’s issuer rating from Moody’s and the Borrower’s corporate credit rating from S&P; provided further that (a) if the respective Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Ratings shall apply (with the Rating for Pricing Level 1 being the highest and the Rating for Pricing Level 5 being the lowest); (b) if there is a split in
3

Ratings of more than one level, then the Pricing Level that is one level higher than the Pricing Level of the lower Rating shall apply; (c) if the Borrower has only one Rating, the Pricing Level for that Rating shall apply; and (d) if the Borrower does not have any Rating, Pricing Level 5 shall apply.
Initially, the Applicable Rate shall be determined based upon the Ratings specified in the certificate delivered pursuant to Section 3.01(a)(iv). Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Ratings shall be effective, in the case of an upgrade or downgrade, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
“Application” means a letter of credit application substantially in the form of Exhibit H (with such modifications, or in such other form, as may be reasonably acceptable to the applicable Issuing Lender) required by the applicable Issuing Lender and acceptable to the Borrower for the issuance of letters of credit generally.
“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Assignment and Assumption Agreement” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 8.06(b)), and accepted by the Administrative Agent, substantially in the form of Exhibit B attached hereto or any other form approved by the Administrative Agent.
“Augmenting Lender” has the meaning specified in Section 2.24.
“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.04(c), and (c) the date of termination of the commitment of each Lender to make Revolving Advances and of the obligation of the Issuing Lenders to issue Letters of Credit pursuant to Section 6.02.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.05(e)(ii)(F).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
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“Banking Services” means each and any of the following bank services provided to the Borrower or any Subsidiary by any Lender or any of its Affiliates: (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards, (c) merchant processing services and (d) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, any direct debit scheme or arrangement, overdrafts and interstate depository network services).
“Banking Services Agreement” means any agreement entered into by the Borrower or any Subsidiary in connection with Banking Services.
“Banking Services Provider” means any Person that either (a) is a party to or provider of any Banking Services Agreement with the Borrower or any of its Subsidiaries at the time it (or its Affiliate) becomes a Lender (including on the Closing Date) or (b) at the time it enters into or provides a Banking Services Agreement, is a Lender or an Affiliate of a Lender, in either case in its capacity as a party to such Banking Services Agreement.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period in Dollars on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen Rate is not available for such one month Interest Period, the LIBO Interpolated Rate) at approximately 11:00 a.m. London time on such day. Any change in the Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.05(e)(ii) (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.05(e)(ii)(B)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00% for purposes of this Agreement.
“Base Rate Revolving Advance” means a Revolving Advance that bears interest at a rate determined by reference to the Base Rate.
“Base Rate Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Advances bearing interest at a rate determined by reference to the Base Rate.
“Benchmark” means, initially, the Relevant Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.05(e)(ii)(B) or Section 2.05(e)(ii)(C).
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark
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Replacement Date; provided that, in the case of any Revolving Advance denominated in a Foreign Loan Currency, “Benchmark Replacement” shall mean the alternative set forth in (3) below:
    (1)    the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;
    (2)    the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
    (3)    the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Loan Currency at such time and (b) the related Benchmark Replacement Adjustment;
    provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion; provided further that, solely with respect to a Revolving Advance denominated in Dollars, notwithstanding anything to the contrary in this Agreement or in any other Loan Document, upon the occurrence of a Term SOFR Transition Event, and the delivery of a Term SOFR Notice,  on the applicable Benchmark Replacement Date the “Benchmark Replacement” shall revert to and shall be deemed to be the sum of (a) Term SOFR and (b) the related Benchmark Replacement Adjustment, as set forth in clause (1) of this definition (subject to the first proviso above).
    If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
    (1)    for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent:
    (a)    the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;
    (b)    the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be
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effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
    (2)    for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Loan Currency at such time;
    provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
    (1)    in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
    (2)    in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein;
    (3)    in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a Term SOFR Notice is provided to the Lenders and the Borrower pursuant to Section 2.05(e)(ii)(C); or
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    (4)    in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.
    For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
    (1)    a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
    (2)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the FRB, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
    (3)    a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.
    For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition
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has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.05(e)(ii) and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.05(e)(ii).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Bilateral LC” means any letter of credit, acceptance and/or bank guarantee issued or provided on behalf of (or for the account of) the Borrower or any Subsidiary, to the extent entered into after the Closing Date (and, for the avoidance of doubt, does not include any Letters of Credit issued under this Agreement).
“Bilateral LC Provider” means any Person that either (a) has issued or provided a Bilateral LC on behalf of (or for the account of) the Borrower or any of its Subsidiaries at the time it (or its Affiliate) becomes a Lender or (b) at the time it issues or provides a Bilateral LC on behalf of (or for the account of) the Borrower or any of its Subsidiaries, is a Lender or an Affiliate of a Lender, in either case in its capacity as such.
“BNPP” means BNP Paribas and its successors.
“Bond Debt” means any indebtedness in the form of publicly issued or privately placed debt securities issued in the capital markets (including hybrid securities and debt securities convertible into equity securities) pursuant to a public registered offering or Rule 144A or other private placement. For the avoidance of doubt, “Bond Debt” shall not include any preferred equity securities even if they are or may be classified as debt under GAAP at any time.
“Borrower” means Fluor Corporation, a Delaware corporation.
“Borrowing” means a Base Rate Revolving Borrowing or a Eurocurrency Rate Revolving Borrowing, as the context may require.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the States of California, Texas or New York are authorized or required by law, regulation or executive order to close; provided, however, that when used in connection with (a) a Eurocurrency Rate Revolving Advance denominated in Dollars, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market, (b) any Borrowings or LC Disbursements that are the subject of a borrowing, drawing, payment, reimbursement or rate selection denominated in euro, the term “Business Day” shall also exclude any day on which the
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TARGET2 payment system is not open for the settlement of payments in euro and (c) a Eurocurrency Rate Revolving Advance or Letter of Credit denominated in a Foreign Currency other than euro, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits in such Foreign Currency in the interbank market in the principal financial center of the country whose lawful currency is such Foreign Currency.
“Canadian Dollar Sublimit” means $250,000,000.
“CDOR Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the CDOR Screen Rate for the longest period (for which the CDOR Screen Rate is available for Canadian Dollars) that is shorter than the Impacted CDOR Rate Interest Period; and (b) the CDOR Screen Rate for the shortest period (for which the CDOR Screen Rate is available for Canadian Dollars) that exceeds the Impacted CDOR Rate Interest Period, in each case, at such time; provided that if any CDOR Interpolated Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“CDOR Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars and for any Interest Period, the CDOR Screen Rate at approximately 10:15 a.m., Toronto time, on the Interest Rate Determination Date for Canadian Dollars; provided that, if the CDOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted CDOR Rate Interest Period”) with respect to Canadian Dollars then the CDOR Rate shall be the CDOR Interpolated Rate.
“CDOR Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars and for any Interest Period, the annual rate of interest equal to the average rate applicable to Canadian dollar Canadian bankers’ acceptances for the applicable period that appears on the “Reuters Screen CDOR Page” as defined in the International Swap Dealer Association, Inc. definitions, as modified and amended from time to time (or, in the event such rate does not appear on such page or screen, on any successor or substitute page or screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time, as selected by the Administrative Agent in its reasonable discretion), rounded to the nearest 1/100th of 1% (with .005% being rounded up). If the CDOR Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the Code.
“Change in Law” has the meaning specified in Section 2.17(a).
“Closing Date” means February 19, 2021.
“Code” means the Internal Revenue Code of 1986, as amended.
“Co-Documentation Agents” means each of Citibank, N.A. and Wells Fargo Bank, National Association, as Co-Documentation Agents, in their capacities as co-documentation agents, and their respective successors in such capacities.
“Collateral” means any and all property owned, leased or operated by a Person covered by the Collateral Documents, but only so long as the Collateral Documents are then in effect, and any and all
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other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Secured Parties under or pursuant to a Collateral Document (but only so long as any such Collateral Document is then in effect), to secure the Secured Obligations; provided that the Collateral shall exclude Excluded Assets. For purposes of clarification, any and all property owned by a Person covered by the Collateral Documents and any and all other property of any Loan Party, now existing or hereafter acquired, that may at any time be or become subject to a security interest or Lien in favor of the Administrative Agent, on behalf of itself and the Secured Parties, shall constitute “Collateral” only during a Collateral Period.
“Collateral Documents” means, collectively, the Security Agreement, the Mortgages and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations.
“Collateral Period” means the period commencing on the occurrence of a Collateral Springing Event and ending on the occurrence of a Collateral Release Event.
“Collateral Release Event” means the occurrence of the following: both (i) the Rating as set forth by S&P is BBB- or higher and (ii) the Rating as set forth by Moody’s is Baa3 or higher.
“Collateral Springing Event” means the occurrence of the following: both (i) the Rating as set forth by S&P is BB or lower and (ii) the Rating as set forth by Moody’s is Ba2 or lower.
“Collateral Requirements” has the meaning specified in Section 5.14(f).
“Commitment” means, at any time, for any Lender, the amounts set forth opposite such Lender’s name on Schedule 1.01(a) hereto under the heading “Aggregate Commitment” and “Amount of Aggregate Commitment Attributable to Revolving Facility Sublimit” or in the Assignment and Assumption Agreement or Incremental Joinder Agreement or other documentation contemplated hereby pursuant to which such Lender becomes a party hereto, as such amount may be adjusted from time to time pursuant to the terms and conditions hereof.
“Commitment Fee” has the meaning specified in Section 2.19(a).
“Competitor” means any Person that is engaged directly, as a significant part of its activities, in the business of delivering engineering, procurement, construction, maintenance, and project management to governments and clients in diverse industries.
“Computation Date” means each day upon or as of which the Administrative Agent determines the Dollar Equivalent of any Eurocurrency Rate Revolving Borrowing, any LC Exposure and/or all outstanding Credit Events, which days shall include:
(a)    in respect of each Eurocurrency Rate Revolving Borrowing, the date of such Borrowing or, if applicable, the date of conversation/continuation of any Borrowing as a Eurocurrency Rate Revolving Borrowing;
(b)    in respect of LC Exposure, the date of each request for the issuance, amendment, renewal or extension of any Letter of Credit; and
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(c)    in respect of all outstanding Credit Events, on and as of the last Business Day of each calendar quarter and on any other Business Day elected by the Administrative Agent in its discretion or upon instruction by the Required Lenders or the Borrower; provided that, (i) in the case of any request by the Borrower, not more often than once per week and (ii) in any event, the Administrative Agent shall not be required to undertake such calculations more frequently than once per calendar month without its consent.
“Connection Income Tax” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated Debt” means, at any date, the total Debt of the Borrower and its Consolidated Subsidiaries, determined on a consolidated basis as of such date; provided, that Consolidated Debt of the Borrower and its Consolidated Subsidiaries shall exclude Debt of variable interest entities which is identified (as required by and referenced in the Accounting Standards Codification 810, Consolidation, as may be modified or supplemented) in the balance sheet of the Borrower and its Consolidated Subsidiaries as debt related to a variable interest entity.
“Consolidated Shareholders’ Equity” means, at any date, the consolidated shareholders’ equity of the Borrower and its Consolidated Subsidiaries, excluding effects of accumulated other comprehensive income/losses, all determined as of such date in accordance with GAAP.
“Consolidated Subsidiary” means any Subsidiary or other entity the accounts of which, at any date, would be, in accordance with GAAP, consolidated with those of the Borrower in its consolidated financial statements as of such date.
“Control” (including the terms “Controlled by” or “under common Control with”) means the possession, direct or indirect, of the power to vote 50% or more of the securities having ordinary voting power for the election of directors of such Person or to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise.
“Controlled Group” means all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414(b) or 414(c) of the Code.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)    a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)    a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Covered Party” has the meaning specified in Section 8.21.
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“Credit Event” means a Borrowing, the issuance, amendment, renewal or extension of a Letter of Credit, an LC Disbursement or any of the foregoing.
“Credit Party” means each of the Administrative Agent, each Issuing Lender, each Lender and their respective successors and assigns, and “Credit Parties” means all such Persons, collectively.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided that, if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion.
“Debt” of any Person means, at any date, without duplication, (i) all indebtedness of such Person for borrowed money which would be classified as a liability of such Person in accordance with GAAP on such Person’s balance sheets, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments (except for notes relating to self insurance programs of such Person and/or its Subsidiaries which are not classified as current liabilities of such Person or any of its Subsidiaries) which would be classified as a liability of such Person in accordance with GAAP on such Person’s balance sheets, (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business and foreign exchange transactions, (iv) all obligations of such Person as lessee under capital leases or financing leases, (v) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities or property, which obligations or any portion thereof may, in accordance with their terms, become due on or before the Maturity Date, (vi) all noncontingent obligations of such Person to reimburse any bank or other Person in respect of amounts actually paid under a letter of credit, a bankers acceptance or similar instrument, (vii) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person, (viii) all Debt of others Debt Guaranteed by such Person, and (ix) all payment obligations of such Person under any interest rate protection agreement (including, without limitation, any interest rate swaps, caps, floors, collars and similar agreements). Notwithstanding anything to the contrary contained herein, “Debt” of the Borrower and its Consolidated Subsidiaries shall exclude Debt of variable interest entities which is identified (as required by and referenced in the Accounting Standards Codification 810, Consolidation, as may be modified or supplemented) in the balance sheet of the Borrower and its Consolidated Subsidiaries as debt related to a variable interest entity.
“Debt Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to takeorpay, or to maintain financial statement conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Debt Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Debt Guarantee” used as a verb has a corresponding meaning.
“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
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“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulting Lender” means any Lender, as reasonably determined by the Administrative Agent, that has (a) failed to fund any portion of its Revolving Advances or participations in any Letter of Credit within three Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding as described in Section 3.02 (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) notified the Borrower, the Administrative Agent, the applicable Issuing Lender or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit (unless such writing or public statement relates to such Lender’s obligation to fund a Revolving Advance hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding as described in Section 3.02 (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed, within three (3) Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Revolving Advances and/or to fund participations in the then outstanding Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent, any Issuing Lender or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (e) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22) upon delivery of written notice of such determination to the Borrower, each Issuing Lender and each Lender.
“Departing Lender” means each lender under the Existing Credit Agreement that executes and delivers to the Administrative Agent a Departing Lender Signature Page.
“Departing Lender Signature Page” means the signature page to this Agreement on which it is indicated that the Departing Lender executing the same shall cease to be a party to the Existing Credit Agreement on the Closing Date.
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“Disqualified Competitor” means (a) Persons that are specifically identified by the Borrower to the Administrative Agent as Competitors in writing prior to the Closing Date, (b) any Person that is reasonably determined by the Borrower after the Closing Date to be a Competitor of the Borrower or its Subsidiaries and which is specifically identified in a written supplement to the list of “Disqualified Competitor”, which supplement shall become effective three (3) Business Days after delivery thereof to the Administrative Agent and the Lenders in accordance with Section 8.01 and (c) in the case of the foregoing clauses (a) and (b), any of such entities’ Affiliates to the extent such Affiliates (x) are clearly identifiable as Affiliates of such Persons based solely on the similarity of such Affiliates’ and such Persons’ names and (y) are not bona fide debt investment funds. It is understood and agreed that (i) any supplement to the list of Persons that are Disqualified Competitors contemplated by the foregoing clause (b) shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans (but solely with respect to such Loans), (ii) the Administrative Agent shall have no responsibility or liability to determine or monitor whether any Lender or potential Lender is a Disqualified Competitor, (iii) the Borrower’s failure to deliver such list (or supplement thereto) in accordance with Section 8.01 shall render such list (or supplement) not received and not effective and (iv) “Disqualified Competitor” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Competitor” by written notice delivered to the Administrative Agent from time to time in accordance with Section 8.01.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (in one transaction or in a series of transactions and whether effected pursuant to a division or otherwise) of any property by any Person (including any Sale and Leaseback Transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Dollar Equivalent” means, at any date of the determination thereof, with respect to any currency (i) the amount of such currency if such currency is Dollars or (ii) the equivalent amount thereof in Dollars if such currency is a Foreign Currency, calculated by the Administrative Agent or the applicable Issuing Lender, as the case may be, (in accordance with normal banking procedures) at the spot exchange rate therefor at about 2:00 p.m. (New York City time) on such date of determination.
“Dollars” or “$” refers to lawful money of the United States of America.
“Domestic Foreign Holding Company” means (x) any Domestic Subsidiary that owns no material assets (directly or through one or more disregarded entities) other than capital stock (including any debt instrument treated as equity for U.S. federal income tax purposes) of one or more foreign subsidiaries that are CFCs or (y) any Subsidiary that is disregarded as an entity from its owner under Treasury Regulations Section 301.7701-3 and substantially all the assets of which consist for U.S. federal income tax purposes of equity interests (or equity interests and debt) in a CFC.
“Domestic Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the United States of America.
“DQ List” has the meaning specified in Section 8.06(h)(iv).
“Early Opt-in Election” means
(a)    in the case of Revolving Advances denominated in Dollars, the occurrence of:
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(1)    a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and
(2)    the joint election by the Administrative Agent and the Borrower to trigger a fallback from the LIBO Rate and the provision by the Administrative Agent of written notice of such election to the Lenders; and
(b)    in the case of Revolving Advances denominated in any Foreign Loan Currency, the occurrence of:
(1)    (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that syndicated credit facilities denominated in the applicable Foreign Loan Currency being executed at such time, or that include language similar to that contained in Section 2.05(e)(ii) are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate, and
(2)    (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.
“ECP” means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises,
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licenses, agreements or other governmental restrictions relating to the environment, or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes into the environment, including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes or the cleanup or other remediation thereof.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest, but excluding any debt securities convertible into any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“Escalating LC” means each Letter of Credit that, by its terms or the terms of the Application related thereto, provides for one or more increases in the stated amount thereof.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“euro” means the single currency of participating member states of the European Union.
“EURIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the EURIBO Screen Rate for the longest period (for which the EURIBO Screen Rate is available for euro) that is shorter than the Impacted EURIBO Rate Interest Period; and (b) the EURIBO Screen Rate for the shortest period (for which the EURIBO Screen Rate is available for euro) that exceeds the Impacted EURIBO Rate Interest Period, in each case, at such time; provided that if any EURIBO Interpolated Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“EURIBO Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro and for any Interest Period, the EURIBO Screen Rate at approximately 11:00 a.m., Brussels time, on the Interest Rate Determination Date for euro; provided that, if the EURIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted EURIBO Rate Interest Period”) with respect to euro then the EURIBO Rate shall be the EURIBO Interpolated Rate.
“EURIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro and for any Interest Period, the euro interbank offered rate administered by the European Money Markets Institute (or any other person that takes over the administration of such rate) for euro for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower. If the EURIBO Screen Rate as so
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determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Eurocurrency Rate” means the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the Adjusted CDOR Rate, as applicable.
“Eurocurrency Rate Revolving Advance” means a Revolving Advance that bears interest at a rate determined by reference to the Adjusted LIBO Rate, the Adjusted EURIBO Rate or the Adjusted CDOR Rate.
“Eurocurrency Rate Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Advances bearing interest a rate determined by reference to the Adjusted LIBO Rate, the Adjusted EURIBO rate or the Adjusted CDOR Rate and having the same Interest Period.
“Eurocurrency Rate Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the FRB, the Financial Conduct Authority, the Prudential Regulation Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D of the FRB. Eurocurrency Rate Revolving Advances shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable law, rule or regulation, including Regulation D of the FRB. The Eurocurrency Rate Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.
“Event of Default” has the meaning specified in Section 6.01.
“Exchange Equivalent” means, at any time for the determination thereof, with respect to any amount (the “Original Amount”) of Dollars, the amount of any relevant Foreign Currency which would be required to buy the Original Amount of Dollars by the Administrative Agent (in accordance with normal banking procedures) at the spot exchange rate therefor at about 2:00 p.m. (New York City time) on such date of determination.
“Excluded Assets” means (i) pledges and security interests prohibited by applicable law, rule or regulation (to the extent such law, rule or regulation is effective under applicable anti-assignment provisions of the UCC or other applicable law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC)), other than proceeds and receivables thereof; (ii) Equity Interests in any Person other than Wholly-Owned Subsidiaries to the extent not permitted by the terms of such Subsidiary’s organizational or joint venture documents; (iii) Equity Interests in Domestic Foreign Holding Companies and Foreign Subsidiaries that are CFCs, in each case, in excess of the Relevant Pledge Percentage; (iv) property or assets of any CFC (whether held directly or indirectly); (v) any debt owed to a CFC; (vi) assets to the extent a security interest in such assets would result in adverse tax consequences to the Borrower and its Subsidiaries (including as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) as reasonably determined in good faith by the Borrower; (vii) any lease, license, contract or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a
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security interest therein would violate or invalidate such lease, license, contract or agreement or purchase money arrangement, capital lease obligation or similar arrangement or create a right of termination in favor of any other party thereto (other than the Borrower and the Subsidiary Guarantors), after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC), other than proceeds and receivables thereof; (viii) any fee-owned real property with a fair market value of less than $25,000,000, as determined by the Borrower in its reasonable discretion, or that is located in a jurisdiction other than the United States, and all leasehold interests; (ix) those assets as to which the Administrative Agent and the Borrower reasonably determine that the costs of obtaining, perfecting or maintaining a security interest in such assets exceeds the fair market value thereof (which fair market value shall be determined by the Borrower in its reasonable judgment) or the practical benefit to the Lenders afforded thereby; (x) motor vehicles and other assets to the extent perfection must be obtained through notation on a certificate of title, letter of credit rights (other than to the extent such rights can be perfected by filing UCC financing statements) and commercial tort claims with a value of less than $10,000,000; (xi) any cash collateral provided to third parties (including sureties) in the ordinary course of business; (xii) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law; (xiii) any property and assets the pledge of which would violate applicable law or any contract, or require any contractual third party consent or governmental consent, approval, license or authorization (but only to the extent, and for so long as, such requirement for consent, approval, license or authorization is not rendered ineffective by, or is otherwise unenforceable under, the UCC or any other applicable law (including pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC)); (xiv) any segregated accounts or funds held or received on behalf of third parties (other than the Borrower or any Subsidiary Guarantor); and (xv) so long as any of the properties of the Borrower and its subsidiaries constitute “Principal Property” under any indenture, real property (including land, improvements and/or buildings) constituting “Principal Property” under any such indenture or any other asset which would require granting of a lien in favor of the holders of the notes issued under any such indenture, but such limitation to apply only for so long as any of such notes remain outstanding. Notwithstanding the foregoing, Excluded Assets shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Assets).
“Excluded Subsidiary” means (a) any Domestic Foreign Holding Company, (b) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Domestic Foreign Holding Company or a CFC, (c) any Domestic Subsidiary (i) that is prohibited or restricted from Guaranteeing the Secured Obligations by (A) any law or regulation or (B) any contractual obligation (including any requirement to obtain the consent of any third party (other than the Borrower or any Subsidiary)) that, in the case of this clause (B), exists on the Closing Date or at the time such Subsidiary becomes a Subsidiary and was not incurred in contemplation of its becoming a Subsidiary (including pursuant to assumed Debt, so long as such Debt is permitted to be assumed under this Agreement), (ii) that would require a governmental (including regulatory) consent, approval, license or authorization in order to provide a Guarantee of the Secured Obligations that is required on the Closing Date or at the time such Subsidiary becomes a Subsidiary or (iii) where the provision of a Guarantee by such Subsidiary of the Secured Obligations would result in adverse tax consequences to the Borrower and/or its direct or indirect Subsidiaries as determined in good faith by the Borrower in consultation with the Administrative Agent, (d) those Domestic Subsidiaries as to which the Administrative Agent and the Borrower reasonably agree that the cost, burden, difficulty or consequence of obtaining a Guarantee of the Secured Obligations from such Subsidiary outweighs, or are
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excessive in relation to, the practical benefit to the Lenders of the Guarantee to be afforded thereby and (e) captive insurance subsidiaries, not-for-profit subsidiaries and special purpose entities.
“Excluded Swap Obligation” means, with respect to any Loan Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Party or the grant of such security interest becomes or would become effective with respect to such Specified Swap Obligation. If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Specified Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (i) Taxes imposed on or measured by the net income (however denominated) of such Recipient, franchise taxes and branch profits taxes, in each case, (A) imposed by the jurisdiction under the laws of which such Recipient is organized, or in which such Recipient has its principal office or, in the case of any Lender, its applicable lending office located or any political subdivision thereof or (B) that are Other Connection Taxes, (ii) in the case of a Lender, United States federal withholding Tax imposed on amounts payable to or for the account of any Lender pursuant to a law in effect on the date on which (A) such Lender first becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower pursuant to Section 2.23) or (B) such Lender changes its lending office, except in each case to the extent that amounts with respect to such Tax were payable to such Lender’s assignor immediately before such Lender became a party to this Agreement or to such Lender immediately before it changed its lending office, (iii) Taxes attributable to such Recipient’s failure to comply with Section 2.16(b), and (iv) any withholding Taxes imposed under FATCA.
“Existing Credit Agreement” has the meaning specified in the preamble to this Agreement.
“Existing $1.8B Credit Agreement” means that certain $1,800,000,000 Amended and Restated Revolving Loan and Letter of Credit Facility Agreement dated as of February 25, 2016 by and among the Borrower, Fluor B.V., the lenders party thereto and BNP Paribas, as administrative agent, as amended, restated, supplemented or otherwise modified prior to the Closing Date.
“Existing Letters of Credit” means the letters of credit described by letter of credit number, face amount, name of beneficiary and date of expiry on Schedule 1.01(b) attached hereto.
“Existing Maturity Date” has the meaning specified in Section 2.25(a).
“Expiration Date” has the meaning specified in Section 2.07(b).
“Extending Lender” has the meaning specified in Section 2.25(b).
“Extension Date” has the meaning specified in Section 2.25(a).
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered
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into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that, if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“Fee Letters” means, collectively (i) that certain letter agreement among BNP Paribas, BNP Paribas Securities Corp. and the Borrower dated as of January 15, 2021, (ii) that certain letter agreement among BNP Paribas, BNP Paribas Securities Corp., Bank of America, N.A., BofA Securities, Inc., Citigroup Global Markets Inc., Wells Fargo Bank, National Association, Wells Fargo Securities, LLC and the Borrower dated as of January 15, 2021, (iii) that certain letter agreement among Bank of America, N.A., BofA Securities, Inc. and the Borrower dated as of January 15, 2021, (iv) that certain letter agreement between Citigroup Global Markets Inc. and the Borrower dated as of January 15, 2021 and (v) that certain letter agreement between Wells Fargo Securities, LLC and the Borrower dated as of January 15, 2021, in each case, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Financial Letter of Credit” means a financial standby letter of credit issued for the account of the Borrower, or for the account of the Borrower on behalf of, or in support of obligations of, any of the Borrower’s Subsidiaries, or which otherwise backs bank guarantees issued by any Issuing Lender or its correspondent bank to support such financial letters of credit, in each case which must qualify as a financial guarantee type letter of credit under applicable laws and regulations.
“First Tier Foreign Subsidiary” means each Foreign Subsidiary with respect to which any one or more of the Borrower and its Domestic Subsidiaries (other than any Domestic Subsidiary that is a subsidiary of a Foreign Subsidiary treated as a CFC) directly owns or Controls more than 50% of such Foreign Subsidiary’s issued and outstanding Equity Interests.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the LIBO Rate, the EURIBO Rate or the CDOR Rate, as applicable.
“Foreign Currency” means a Foreign LC Currency or a Foreign Loan Currency, as applicable and as the context requires.
“Foreign LC Currency” means Pounds Sterling, euro, Japanese Yen, Australian Dollar, New Zealand Dollar, Mexican Peso, Canadian Dollar, Singapore Dollar and/or any other currency acceptable to the applicable Issuing Lender, as the context requires.
“Foreign Lender” has the meaning specified in Section 2.16(b).
“Foreign Loan Currency” means (i) Pounds Sterling, (ii) euro, (iii) Canadian Dollars and (iv) any other currency (x) that is a lawful currency (other than Dollars) that is readily available, not restricted and freely transferable and convertible into Dollars, (y) for which a LIBOR Screen Rate or other applicable screen rate is available in the Administrative Agent’s determination and (z) that is agreed to by the Administrative Agent and each of the Lenders.
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“Foreign Subsidiary” means any Subsidiary which is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP” means generally accepted accounting principles in effect from time to time in the United States of America, applied on a consistent basis, subject to the provisions of Section 1.02(b).
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government and any court or arbitrator (including any central bank or any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Debt or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Debt or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Debt or obligation; provided, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the lesser of (a) the stated or determinable amount of the primary payment obligation in respect of which such Guarantee is made and (b) the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary payment obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of the Guarantee shall be such guaranteeing Person’s maximum reasonably possible liability in respect thereof as reasonably determined by the Borrower in good faith.
“IBA” has the meaning specified in Section 1.05.
“Impacted CDOR Rate Interest Period” has the meaning assigned to such term in the definition of “CDOR Rate”.
“Impacted EURIBO Rate Interest Period” has the meaning assigned to such term in the definition of “EURIBO Rate”.
“Impacted LIBO Rate Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.
“Incremental Commitment Increase” has the meaning specified in Section 2.24.
“Incremental Commitment Increase Effective Date” has the meaning specified in Section 2.24.
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“Incremental Increase Lender” means, at any time, any bank or other financial institution that agrees to provide any portion of any Incremental Commitment Increase in accordance with Section 2.24.
“Incremental Joinder Agreement” has the meaning specified in Section 2.24.
“Incremental Term Loan” has the meaning specified in Section 2.24.
“Incremental Term Loan Amendment” has the meaning specified in Section 2.24.
“Incremental Term Loan Effective Date” has the meaning specified in Section 2.24.
“Incremental Term Loan Lender” means, at any time, any bank or other financial institution that agrees to provide any portion of any Incremental Term Loan in accordance with Section 2.24.
“Indemnified Taxes” has the meaning specified in Section 2.16(a).
“Industry Standards” has the meaning specified in Section 5.03(b).
“Information” has the meaning specified in Section 8.10.
“Interest Period” means with respect to any Eurocurrency Rate Revolving Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two (if available), three, six or twelve months thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a Eurocurrency Rate Revolving Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interest Rate Determination Date” means, with respect to any Eurocurrency Rate Revolving Borrowing for any Interest Period, (i) if the currency is Pounds Sterling or Canadian Dollars, three (3) Business Days prior to the commencement of such Interest Period, (ii) if the currency is euro, the day that is two (2) TARGET2 Days before the first day of such Interest Period, and (iii) for any other currency, two (2) Business Days prior to the commencement of such Interest Period (unless, in each case, market practice differs in the relevant market where the LIBO Rate for such currency is to be determined, in which case the Interest Rate Determination Date will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normally be given on more than one day, then the Interest Rate Determination Date will be the last of those days)).
“Interest Type” refers to the distinction between Revolving Advances or Revolving Borrowings bearing interest at the Base Rate and Revolving Advances or Revolving Borrowings bearing interest at the applicable Eurocurrency Rate.
“Investment” has the meaning specified in Section 5.16.
“IRS” means the United States Internal Revenue Service.
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“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuing Lender” means BNPP, Bank of America, N.A., Bank of Montreal and, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld) and at the request of the Borrower, any other Lender that agrees to be an Issuing Lender hereunder, each in its capacity as an issuer of Letters of Credit hereunder, and its successors, and the term “Issuing Lenders” means all such Persons, collectively.
“Joint Lead Arrangers” means each of BNP Paribas Securities Corp., BofA Securities, Inc., Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, in their capacities as joint bookrunners and joint lead arrangers, and their respective successors in such capacities.
“Joint Venture” means any joint venture, partnership or other minority-owned entity (other than a Subsidiary) in which the Borrower or any of its Subsidiaries or other Affiliates owns an interest.
“LC Disbursement” means a payment made by any Issuing Lender pursuant to a Letter of Credit.
“LC Excess” has the meaning specified in Section 2.12(b).
“LC Exposure” means at any time, the sum of (i) the aggregate undrawn amount of all Letters of Credit at such time (provided that, with respect to any Escalating LC, such aggregate undrawn amount shall equal the maximum amount (after giving effect to all possible increases) available to be drawn under such Escalating LC) plus (ii) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lender” means each Person listed on Schedule 1.01(a) and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption Agreement or Incremental Joinder Agreement or other documentation contemplated hereby (other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption Agreement or other documentation contemplated hereby), including any Incremental Increase Lender, and their successors and assigns. For the avoidance of doubt, the term “Lender” excludes the Departing Lenders.
“Lender Notice Date” has the meaning specified in Section 2.25(b).
“Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.
“Lender-Related Person” means the Administrative Agent, any Joint Lead Arranger, and any Lender, and any Related Party of any of the foregoing Persons.
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“Lending Office” means, as to each Lender, its office located at its address set forth on the signature pages hereof, or such office as may be set forth as a Lending Office of a Lender in any Assignment and Assumption Agreement accepted by the Administrative Agent pursuant to Section 8.06(b), or such other office as such Lender may hereafter designate as its Lending Office by notice to the Borrower and the Administrative Agent.
“Letter of Credit” means (a) any Financial Letter of Credit or any Performance Letter of Credit, in each case denominated in Dollars or in a Foreign LC Currency issued pursuant to this Agreement, which letter of credit is in a form reasonably acceptable to the applicable Issuing Lender, and (b) any Existing Letter of Credit, in each case as such letter of credit may be amended, modified, extended, renewed or replaced from time to time, in each case in accordance with this Agreement (it being understood and agreed that, for the avoidance of doubt, any Bilateral LC shall not be, and shall not be deemed to be, letters of credit issued pursuant to this Agreement).
“Letter of Credit Fee” has the meaning specified in Section 2.19(b).
“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.
“LIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in any Agreed Loan Currency (other than euro or Canadian Dollars) and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available for the applicable Agreed Loan Currency) that is shorter than the Impacted LIBO Rate Interest Period; and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available for the applicable Agreed Loan Currency) that exceeds the Impacted LIBO Rate Interest Period, in each case, at such time; provided that if any LIBO Interpolated Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
“LIBO Rate” means, with respect to any Eurocurrency Rate Revolving Borrowing denominated in any Agreed Loan Currency (other than euro or Canadian Dollars) and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m., London time, on the Interest Rate Determination Date for such Agreed Loan Currency; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted LIBO Rate Interest Period”) with respect to such Agreed Loan Currency then the LIBO Rate shall be the LIBO Interpolated Rate.
“LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Revolving Borrowing denominated in any Agreed Loan Currency (other than euro or Canadian Dollars) and for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for such Agreed Loan Currency for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.
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“Lien” means, with respect to any asset, (i) any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset and (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
“Limited Condition Acquisition” means any Permitted Acquisition the consummation of which is not conditioned (under the applicable agreement or other instrument) on the availability of, or on obtaining, financing and for which the Borrower has determined, in good faith, that limited conditionality is reasonably necessary.
“Liquidity” means, at any time, the sum of (i) unrestricted and unencumbered (other than Liens created pursuant to any Loan Document) cash, Permitted Investments and marketable securities of the Borrower and its Subsidiaries (other than any variable interest entity) at such time plus (ii) the amount available for Revolving Advances pursuant to Section 2.01(a) (without regard to whether the Borrower would be able to meet the conditions in this Agreement for a borrowing of Revolving Advances in the full amount available pursuant to such Section).
“Loan Excess” has the meaning specified in Section 2.04(d).
“Loan Documents” means this Agreement, each Application, each Letter of Credit, each Revolving Note, the Fee Letters, the Collateral Documents, the Subsidiary Guaranty, any other security or collateral documents to be delivered thereunder and any other documents or certificates to be delivered thereunder or in connection therewith and all amendments thereto and substitutions and replacements therefor and modifications thereof.
“Loan Parties” means, collectively, the Borrower and the Subsidiary Guarantors.
“Local Time” means (i) New York City time in the case of a Revolving Advance, Revolving Borrowing or LC Disbursement denominated in Dollars and (ii) local time in the case of a Revolving Advance, Revolving Borrowing or LC Disbursement denominated in a Foreign Currency (it being understood that such local time shall mean (a) London, England time with respect to any Foreign Currency (other than in respect of Revolving Advances denominated euro or Canadian Dollars), (b) Brussels, Belgium time with respect to Revolving Advances denominated in euro and (c) Toronto, Canada time with respect to Revolving Advances denominated in Canadian Dollars, in each case of the foregoing clauses (a), (b) and (c) unless otherwise notified by the Administrative Agent).
“Material Adverse Change” means any material and adverse change in the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower and its Consolidated Subsidiaries (taken as a whole) since December 31, 2019 which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents at any time up to and including the Maturity Date.
“Material Adverse Effect” means a material adverse effect on (i) the business, consolidated financial position or consolidated results of operations of the Borrower and its Consolidated Subsidiaries, taken as a whole, or (ii) the Borrower’s ability to perform its obligations under the Loan Documents at any time up to and including the Maturity Date.
“Material Plan” has the meaning specified in Section 6.01(i).
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“Material Domestic Subsidiary” means each Wholly-Owned Domestic Subsidiary which, as of the most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b), contributed greater than five percent (5%) of consolidated revenues for such period.
“Material Foreign Subsidiary” means each Foreign Subsidiary (i) which, as of the most recent fiscal quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered pursuant to Section 5.01(a) or (b), contributed greater than five percent (5%) of consolidated revenues for such period.
“Material Subsidiary” means (i) at any time (including during any Collateral Period) any Subsidiary which as of such time meets the definition of a “significant subsidiary” contained as of the date hereof in Regulation SX of the SEC and (ii) during any Collateral Period, any Subsidiary Guarantor.
“Maturity Date” means February 19, 2023, subject to extension (in the case of each Lender consenting thereto) as provided in Section 2.25; provided, however, that if such date is not a Business Day, the Maturity Date shall be the immediately preceding Business Day.
“Maximum Rate” has the meaning specified in Section 8.18.
“Minimum Liquidity Amount” means, as of the Closing Date, $1,500,000,000; provided that, following the Closing Date, such amount shall be (i) reduced on a dollar-for-dollar basis by any application of cash and cash equivalents of the Borrower to the repayment, retirement and defeasance of the principal amount of any of the Borrower’s existing Bond Debt (it being understood and agreed that, regardless of the amount of any such repayment, retirement and defeasance, in no event shall the Minimum Liquidity Amount be less than $1,250,000,000) and (ii) following any such reduction described in the preceding clause (i), increased on a dollar-for-dollar basis by the principal amount of any issuance by the Borrower of Bond Debt (it being understood and agreed that, regardless of the amount of any such issuance, in no event shall the Minimum Liquidity Amount be greater than $1,500,000,000). It is understood and agreed that there shall be no change in the Minimum Liquidity Amount unless and until the Borrower shall have delivered to the Administrative Agent a certificate pursuant to Section 5.01(l) providing a reasonably detailed calculation of the Minimum Liquidity Amount.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage” means each mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Secured Parties, on real property of a Loan Party, including any amendment, restatement, modification or supplement thereto.
“Mortgage Instruments” means such title reports, ALTA title insurance policies (with endorsements), evidence of zoning compliance, property insurance, flood certifications and flood insurance (and, if applicable FEMA form acknowledgements of insurance), opinions of counsel, ALTA surveys, appraisals, environmental assessments and reports, mortgage tax affidavits and declarations and other similar information and related certifications as are requested by, and in form and substance reasonably acceptable to, the Administrative Agent from time to time.
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
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“Non-Extending Lender” has the meaning specified in Section 2.25(b).
“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit E attached hereto.
“Notice of Revolving Borrowing” means a notice substantially in the form of Exhibit D attached hereto.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means the collective reference to all obligations and liabilities of the Borrower to the Credit Parties (including, without limitation, the reimbursement obligations payable hereunder and all other obligations and liabilities of the Borrower in respect of any Letter of Credit and any Revolving Advance and interest thereon as provided for herein, and interest and fees accruing at the then applicable rate provided in this Agreement after the maturity of such obligations and liabilities and interest accruing at the then applicable rate provided in this Agreement after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Administrative Agent, the Joint Lead Arrangers, the Issuing Lenders or the Lenders that are required to be paid by the Borrower pursuant to the terms of this Agreement or any other Loan Document).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.23).
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“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Foreign Currency Rate” means, for any amount payable in a Foreign Currency, the rate of interest per annum as determined by the Administrative Agent at which overnight or weekend deposits in the relevant currency (or if such amount due remains unpaid for more than three (3) Business Days, then for such other period of time as the Administrative Agent may elect) for delivery in immediately available and freely transferable funds would be offered by the Administrative Agent to major banks in the interbank market upon request of such major banks for the relevant currency as determined above and in an amount comparable to the unpaid principal amount of the related Credit Event, plus any taxes, levies, imposts, duties, deductions, charges or withholdings imposed upon, or charged to, the Administrative Agent by any relevant correspondent bank in respect of such amount in such relevant currency.
“Participant” has the meaning specified in Section 8.06(c).
“Participant Register” has the meaning specified in Section 8.06(c).
“Patriot Act” has the meaning specified in Section 8.20.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“Performance Letter of Credit” means a standby letter of credit issued for the account of the Borrower, or for the account of the Borrower on behalf of, or in support of obligations of, any of the Related Entities, to support, or to back bank guarantees issued by other banks to support, the Borrower’s and the Related Entities’ performance under specific project engineering, procurement, construction, maintenance and related activities and/or contracts.
“Permitted Acquisition” means any Acquisition if (a) no Event of Default has occurred and is continuing prior to making such Acquisition or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto, (b) the business of the Person whose Equity Interests are being acquired or the division or line of business being acquired or relating to the assets acquired would be permitted under Section 5.09(b), (c) all actions required to be taken with respect to such acquired or newly formed Subsidiary under Section 5.14 shall have been taken or shall be taken within the time periods required by Section 5.14, (d) immediately after giving effect (including giving effect on a pro forma basis) thereto, the Borrower is in compliance with the covenants in Section 5.07, and, if the aggregate consideration in respect of such Acquisition exceeds $100,000,000, the Borrower shall have delivered to the Administrative Agent a certificate of a senior vice president, the chief financial officer or the treasurer of the Borrower, in a form reasonably satisfactory to the Administrative Agent, certifying that the applicable requirements set forth in this definition have been satisfied with respect to such Acquisition, together, with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in this clause (d), and (e) in the case of an Acquisition involving a Loan Party, such Loan Party is the surviving entity of any applicable merger and/or consolidation; provided that it is understood and agrees that if such Acquisition is a Limited Condition Acquisition, the conditions in clauses (a) and (d) above may be satisfied as of the date of the entering into of the definitive agreement for such Limited
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Condition Acquisition so long as no Specified Default shall have occurred and be continuing at the time of, or would result from, the consummation of such Limited Condition Acquisition.
“Permitted Cash Equivalent Investments” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing no more than one year after such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing no more than one year after such date and having, at the time of the acquisition thereof, a rating of at least A1 from S&P or at least P1 from Moody’s; and (iii) certificates of deposit or bankers’ acceptances maturing no more than one year after such date or overnight bank deposits, in each case issued, accepted by or of any Lender, or any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, which amounts may be withdrawn at any time without penalty, and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $10,000,000,000.
“Permitted Cover” means the provision of cover by arranging for the issuance of one or more standby letters of credit issued by a bank (excluding Letters of Credit issued pursuant to this Agreement), and on terms and conditions, in each case satisfactory to the Administrative Agent and the Issuing Lenders.
“Permitted Investments” means:
(a)    direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b)    investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(c)    investments in certificates of deposit, banker’s acceptances and time or demand deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(d)    fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above at the date of such acquisition;
(e)    money market funds that, at such date of acquisition) (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000;
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(f)    corporate debt instruments issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 3 years or less from the date of acquisition; and
(g)    investments of the Borrower or any Subsidiary that are analogous to the foregoing in any country other than the United States, which are of comparable quality and are customarily used by companies for cash management purposes in the such country.
“Person” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Plan” means at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either (i) maintained by the Borrower or any Subsidiary for employees of the Borrower or any Subsidiary or (ii) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which the Borrower or any Subsidiary is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Pledge Subsidiary” means (i) each Domestic Subsidiary and (ii) each First Tier Foreign Subsidiary which is a Material Foreign Subsidiary.
“Pounds Sterling Sublimit” means $250,000,000.
“Prime Rate” means the prime commercial lending rate of interest established by BNPP in New York, New York from time to time as its prime rate (the “prime rate” means the rate of interest per annum publicly announced from time to time by BNPP as its prime rate in effect at its principal office in New York City.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning specified in Section 8.21.
“Ratings” has the meaning specified in the definition of “Applicable Rate.”
“Recipient” means the Administrative Agent, any Lender and any Issuing Lender, as applicable.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the LIBO Rate, 11:00 a.m., London time, on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not the LIBO Rate, the time determined by the Administrative Agent in its reasonable discretion.
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“Register” has the meaning specified in Section 8.06(i).
“Regulation U” means Regulation U of the FRB, as in effect from time to time.
“Related Entity” means any Subsidiary, Affiliate or Joint Venture of the Borrower.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the FRB or the NYFRB, or a committee officially endorsed or convened by the FRB or the NYFRB, or any successor thereto and (ii) with respect to a Benchmark Replacement in respect of Loans denominated in any Foreign Currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate” means (i) with respect to any Eurocurrency Rate Revolving Borrowing denominated in an Agreed Loan Currency (other than euro or Canadian Dollars), the LIBO Rate, (ii) with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro, the EURIBO Rate or (iii) with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars, the CDOR Rate, as applicable.
“Relevant Screen Rate” means (i) with respect to any Eurocurrency Rate Revolving Borrowing denominated in an Agreed Loan Currency (other than euro or Canadian Dollars), the LIBO Screen Rate, (ii) with respect to any Eurocurrency Rate Revolving Borrowing denominated in euro, the EURIBO Screen Rate or (iii) with respect to any Eurocurrency Rate Revolving Borrowing denominated in Canadian Dollars, the CDOR Screen Rate, as applicable.
“Required Lenders” means, at any time, Lenders having more than 50% of the Aggregate Commitments or, if the Commitment of each Lender and the obligation of the Issuing Lenders to issue Letters of Credit hereunder have been terminated pursuant to the terms of this Agreement, Lenders holding in the aggregate more than 50% of the aggregate outstanding amount of all Revolving Advances and all LC Exposure (with the aggregate amount of each Lender’s risk participation in LC Exposure being deemed “held” by such Lender for purposes of this definition).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower or any Subsidiary or any option, warrant or other right to acquire any such Equity Interests in the Borrower or any Subsidiary.
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“Reuters” means, as applicable, Thomson Reuters Corp., Refinitiv, or any successor thereto.
“Revolving Advance” has the meaning specified in Section 2.01(a).
“Revolving Borrowing” means a borrowing consisting of simultaneous Revolving Advances of the same Interest Type and, in the case of Eurocurrency Rate Revolving Advances, having the same Interest Period, made by the Lenders pursuant to Section 2.01.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Advances and its LC Exposure at such time.
“Revolving Facility Sublimit” means $1,000,000,000.
“Revolving Note” means a promissory note made by the Borrower in favor of a Lender evidencing Revolving Advances made by such Lender to the Borrower, substantially in the form of Exhibit F attached hereto.
“Sale and Leaseback Transaction” means any sale or other transfer of any property or asset by any Person with the intent to lease such property or asset as lessee.
“Sanction(s)” means any economic or trade sanctions or trade embargoes enacted, administered, imposed or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or Japan.
“Sanctioned Country” has the meaning specified in Section 4.14.
“Sanctioned Person” has the meaning specified in Section 4.14.
“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Banking Services Obligations” means any and all obligations of the Borrower or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services with respect to which the Banking Services Provider providing such Banking Services (except in the case of the Administrative Agent (including in its capacity as a Lender) and its Affiliates) shall have delivered the written notice in respect thereof to the Administrative Agent pursuant to, and as contemplated by, Section 7.14(a).
“Secured Bilateral LC Obligations” means any and all obligations of the Borrower or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with any Bilateral LC with respect to which the Borrower shall have delivered the written notice in respect thereof to the Administrative Agent pursuant to, and as contemplated by, Section 7.14(b) (and the Administrative Agent shall have approved such designation pursuant to Section 7.14(b));
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provided that it is understood and agreed that in no event shall the Dollar Equivalent of the aggregate principal amount of all Secured Bilateral LC Obligations exceed $250,000,000 at any time.
“Secured Obligations” means all Obligations, together with all Secured Swap Obligations, Secured Banking Services Obligations and Secured Bilateral LC Obligations; provided that the definition of “Secured Obligations” shall not create or include any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.
“Secured Parties” means the holders of the Secured Obligations from time to time and shall include (i) each Lender and each Issuing Lender in respect of its Loans and LC Exposure respectively, (ii) the Administrative Agent, the Issuing Lenders and the Lenders in respect of all other present and future obligations and liabilities of the Borrower and each Subsidiary of every type and description arising under or in connection with this Agreement or any other Loan Document, (iii) each Banking Services Provider in respect of Secured Banking Services Obligations, (iv) each Swap Bank in respect of Secured Swap Obligations, (v) each Bilateral LC Provider in respect of Secured Bilateral LC Obligations, (vi) each indemnified party under Section 8.03 in respect of the obligations and liabilities of the Borrower to such Person hereunder and under the other Loan Documents, and (vii) their respective successors and (in the case of a Lender, permitted) transferees and assigns.
“Secured Swap Obligations” means any and all obligations of the Borrower or any Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under (a) any and all Swap Agreements with a Swap Bank, and (b) any and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction, in each case with respect to which the Swap Bank that has entered into such Swap Agreement (except in the case of the Administrative Agent (including in its capacity as a Lender) and its Affiliates) shall have delivered the written notice in respect thereof to the Administrative Agent pursuant to, and as contemplated by, Section 7.14(a).
“Security Agreement” means that certain Pledge and Security Agreement (including any and all supplements thereto), in form and substance reasonably acceptable to the Administrative Agent, between the Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m., New York City time, on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“Solvent” means, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount
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that will be required to pay the probable liability of such Person on its debts, including contingent debts, as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities, including contingent debts and liabilities, beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Ancillary Obligations” means all obligations and liabilities (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) of any of the Subsidiaries, existing on the Closing Date or arising thereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, to the Banking Services Providers in respect of any Secured Banking Services Obligation, to the Swap Banks in respect of any Secured Swap Obligations and to the Bilateral LC Providers in respect of any Secured Bilateral LC Obligations; provided that the definition of “Specified Ancillary Obligations” shall not create or include any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party for purposes of determining any obligations of any Loan Party.
“Specified Default” means an Event of Default arising under any or all of Sections 6.01(a), 6.01(g) or 6.01(h).
“Specified Swap Obligation” means, with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder.
“Subordinated Debt” means any Debt of the Borrower or any Subsidiary the payment of which is subordinated to payment of the obligations under the Loan Documents.
“Subordinated Debt Documents” means any document, agreement or instrument evidencing any Subordinated Debt or entered into in connection with any Subordinated Debt.
“Subsidiary” of a Person, as of any date, means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person, in each case as of such date. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” means each Material Domestic Subsidiary that is a party to the Subsidiary Guaranty.
“Subsidiary Guaranty” means that certain Guaranty (including any and all supplements thereto), in form and substance reasonably acceptable to the Administrative Agent, between each Subsidiary Guarantor and the Administrative Agent, as amended, restated, supplemented or otherwise modified from time to time.
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“Supported QFC” has the meaning specified in Section 8.21.
“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that “Swap Agreement” shall not include (x) any phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries or (y) any accelerated share repurchase, share forward purchase contract or similar contract with respect to the Equity Interests of the Borrower entered into to consummate any repurchase of the Borrower’s common Equity Interests permitted hereunder.
“Swap Bank” means any Person that either (a) is a party to any Swap Agreement with the Borrower or any of its Subsidiaries at the time it (or its Affiliate) becomes a Lender (including on the Closing Date) or (b) at the time it enters into a Swap Agreement with the Borrower or any of its Subsidiaries, is a Lender or an Affiliate of a Lender, in either case in its capacity as a party to such Swap Agreement.
“Syndication Agent” means Bank of America, N.A., as Syndication Agent, in its capacity as syndication agent, and its successors in such capacity.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative, such other payment system (if any) reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement of payments in euro.
“TARGET2 Day” means a day that TARGET2 is open for the settlement of payments in euro.
“Taxes” has the meaning specified in Section 2.16(a).
“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Notice” means a notification by the Administrative Agent to the Lenders and the Borrower of the occurrence of a Term SOFR Transition Event.
“Term SOFR Transition Event” means the determination by the Administrative Agent that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, (b) the administration of Term SOFR is administratively feasible for the Administrative Agent and (c) a Benchmark Transition Event or an Early Opt-in Election, as applicable, has previously occurred resulting in a Benchmark Replacement in accordance with Section 2.05(e)(ii) that is not Term SOFR.
“Trade Date” has the meaning specified in Section 8.06(h)(i).
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or, to the extent relevant, any other state the laws of which are required to be applied in connection with the issue of perfection of security interests.
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“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“United States” or “U.S.” mean the United States of America.
“Unfunded Vested Liabilities” means, with respect to any Plan at any time, the amount (if any) by which (i) the present value of all vested nonforfeitable benefits under such Plan exceeds (ii) the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent valuation date for such plan, but only to the extent that such excess represents a potential liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
“Unliquidated Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.
“U.S. Special Resolution Regime” has the meaning specified in Section 8.21.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.16(b).
“Utilization” means, on any date, the sum of (i) the Dollar Equivalent of the aggregate principal amount of all Revolving Advances outstanding at such time, plus (ii) the Dollar Equivalent of the total LC Exposure outstanding at such time.
“Wholly-Owned Subsidiary” means a Subsidiary with respect to which 100% of the issued and outstanding Equity Interests are owned directly or indirectly by the Borrower (other than (i) directors’ qualifying shares; (ii) shares issued to foreign nationals to the extent required by applicable law; and (iii) shares held by a Person on trust for, or otherwise where the beneficial interest is held by, the Borrower (directly or indirectly)).
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers
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under that Bail-In Legislation that are related to or ancillary to any of those powers.
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SECTION 1.02.    Other Definitional Provisions.
(a)    All terms defined in this Agreement shall have the meanings given such terms herein when used in the Loan Documents or any certificate, opinion or other document made or delivered pursuant hereto or thereto, unless otherwise defined therein.
(b)    Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to (i) any election under Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Debt or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein and (ii) any treatment of Debt under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Debt in a reduced or bifurcated manner as described therein, and such Debt shall at all times be valued at the full stated principal amount thereof. Notwithstanding anything to the contrary contained in this Section 1.02(b), any change in accounting for leases pursuant to GAAP resulting from the adoption of Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842) (“FAS 842”), to the extent such adoption would require treating any lease (or similar arrangement conveying the right to use) as a capital lease or finance lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2015, such lease shall not be considered a capital lease or finance lease, and all calculations and deliverables under this Agreement or any other Loan Document shall be made or delivered, as applicable, in accordance therewith.
(c)    The words “hereof”, “herein”, “hereto” and “hereunder” and similar words when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, schedule and exhibit references contained herein shall refer to Sections hereof or schedules or exhibits hereto unless otherwise expressly provided herein.
(d)    The word “or” shall not be exclusive; “may not” is prohibitive and not permissive.
(e)    Unless the context otherwise requires, words in the singular number include the plural, and words in the plural include the singular.
(f)    Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The word “law” shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations thereunder having the force of law or with which affected Persons customarily comply), and all judgments, orders and
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decrees, of all Governmental Authorities. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein), (b) any definition of or reference to any law, statute, rule or regulation shall, unless otherwise specified, be construed as referring thereto as from time to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignment set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(g)    Unless specifically provided in a Loan Document to the contrary, references to time shall refer to New York City time.
SECTION 1.03.    Amendment and Restatement of Existing Credit Agreement
.
The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 3.01, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All “Revolving Advances” made, all “Letters of Credit” issued and all “Obligations” incurred under the Existing Credit Agreement which are outstanding on the Closing Date shall continue as Revolving Advances, Letters of Credit and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the occurrence of the Closing Date: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) the Existing Letters of Credit which remain outstanding on the Closing Date shall continue as Letters of Credit under (and shall be governed by the terms of) this Agreement, (c) all obligations constituting “Obligations” owed to any Lender (other than Departing Lenders) or any Affiliate of any Lender under the Existing Credit Agreement which are outstanding on the Closing Date shall continue as Obligations under this Agreement and the other Loan Documents, (d) the Administrative Agent shall make such reallocations, sales, assignments, designations or other relevant actions in respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that each such Lender’s Revolving Credit Exposure and outstanding Revolving Advances (if any) hereunder reflects such Lender’s Applicable Percentage of the outstanding aggregate Revolving Credit Exposures on the Closing Date, (e) the existing Revolving Advances (if any) of each Departing Lender shall be repaid in full (which payment shall be accompanied by any accrued and unpaid interest and fees thereon), each Departing Lender’s “Commitment” under the Existing Credit Agreement shall be terminated and each Departing Lender shall not be a Lender hereunder or have any obligation to make Revolving Advances or extend credit under this Agreement or to participate in Letters of Credit issued under the Existing Credit
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Agreement (with all existing participations of each Departing Lender in Letters of Credit deemed to be terminated) or to reimburse any party for LC Disbursements in respect thereof (provided, however, that each Departing Lender shall continue to be entitled to the benefits of Sections 2.16, 2.17 and 8.03 in respect of Commitments existing, and Revolving Advances made, prior to the Closing Date) and (f) the Borrower hereby agrees to compensate each Lender (and each Departing Lender) for any and all losses, costs and expenses incurred by such Lender (and such Departing Lender) in connection with the sale and assignment of any Eurocurrency Rate Revolving Advances (including the “Eurodollar Revolving Rate Advances” under the Existing Credit Agreement) and such reallocation (and any repayment or prepayment of each Departing Lender’s existing Revolving Advances (if any)) described above, in each case on the terms and in the manner set forth in Section 8.03(c) hereof. Each Departing Lender, by its execution of its Departing Lender Signature Page, notwithstanding the time period specified in Section 2.04(a) of the Existing Credit Agreement, consents to delivery on or prior to the Closing Date of the notice of prepayment with respect to prepayment of its existing Revolving Advances under the Existing Credit Agreement.
SECTION 1.04.    Pro Forma Calculations
.
All pro forma computations required to be made hereunder giving effect to any acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction shall in each case be calculated giving pro forma effect thereto (and, in the case of any pro forma computation made hereunder to determine whether such acquisition or disposition, or issuance, incurrence or assumption of Debt, or other transaction is permitted to be consummated hereunder, to any other such transaction consummated since the first day of the period covered by any component of such pro forma computation and on or prior to the date of such computation) as if such transaction had occurred on the first day of the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b), and, to the extent applicable, to the historical earnings and cash flows associated with the assets acquired or disposed of and any related incurrence or reduction of Debt. If any Debt bears a floating rate of interest and is being given pro forma effect, the interest on such Debt shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Swap Agreement applicable to such Debt). All such pro forma calculations described in this Section shall be made reasonably and in good faith by a financial officer of the Borrower.
SECTION 1.05.    Interest Rates; LIBOR Notification
.
The interest rate on a Revolving Advance denominated in an Agreed Loan Currency may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform. Regulators have signaled the need to use alternative benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks may cease to comply with applicable laws and regulations, may be permanently discontinued, and/or the basis on which they are calculated may change. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for
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purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurocurrency Rate Revolving Advances. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. Upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, Section 2.05(e)(ii)(B) and Section 2.05(e)(ii)(C) provide a mechanism for determining an alternative rate of interest. The Administrative Agent will promptly notify the Borrower, pursuant to Section 2.05(e)(ii)(E), of any change to the reference rate upon which the interest rate on Eurocurrency Rate Revolving Advances is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” (or “EURIBO Rate” or “CDOR Rate”, as applicable) or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 2.05(e)(ii)(B) or Section 2.05(e)(ii)(C), whether upon the occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, and (ii) the implementation of any Benchmark Replacement Conforming Changes pursuant to Section 2.05(e)(ii)(D)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBO Rate (or the EURIBO Rate or the CDOR Rate, as applicable) or have the same volume or liquidity as did the London interbank offered rate (or the euro interbank offered rate or the Canadian Dollar interbank offered rate, as applicable) prior to its discontinuance or unavailability.
SECTION 1.06.    Letter of Credit Amounts
.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the amount of such Letter of Credit available to be drawn at such time; provided that, with respect to any Escalating LC, the amount of such Escalating LC shall be deemed to be the maximum amount of such Escalating LC after giving effect to all increases provided for therein or in the Application related thereto, whether or not such maximum amount is available to be drawn at such time.
SECTION 1.07.    Divisions
.
For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
ARTICLE II

REVOLVING ADVANCES AND LETTERS OF CREDIT
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SECTION 2.01.    Revolving Advances.
(a)    Subject to the terms and conditions set forth herein, each Lender severally (and not jointly) agrees to make advances in Agreed Loan Currencies (each a “Revolving Advance”) to the Borrower from time to time on any Business Day during the Availability Period, in an aggregate principal amount that will not result in (i) subject to Section 2.04(d) and Section 2.12(b), the Dollar Equivalent of such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (ii) subject to Section 2.04(d) and Section 2.12(b), the Dollar Equivalent of the aggregate Revolving Credit Exposures exceeding the Aggregate Commitments, (iii) subject to Section 2.04(d) and Section 2.12(b), the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit exceeding the Revolving Facility Sublimit, (iv) subject to Section 2.04(d), the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Canadian Dollars exceeding the Canadian Dollar Sublimit, and (v) subject to Section 2.04(d), the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Pounds Sterling exceeding the Pounds Sterling Sublimit.
(b)    Each Revolving Borrowing shall be in an aggregate amount of at least $3,000,000 (or, if such Borrowing is denominated in a Foreign Loan Currency, 3,000,000 units of such currency) or an integral multiple of $1,000,000 (or, if such Borrowing is denominated in a Foreign Loan Currency, 1,000,000 units of such currency) in excess thereof and shall consist of Revolving Advances made by the Lenders ratably according to their respective Commitments in respect of the Revolving Facility Sublimit. Within the foregoing limits, the Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.04 and reborrow under this Section 2.01.
SECTION 2.02.    Making the Revolving Advances.
(a)    Each Revolving Advance. Each Revolving Borrowing shall be made in an Agreed Loan Currency and shall be comprised entirely of Base Rate Revolving Advances or Eurocurrency Rate Revolving Advances as the Borrower may request in accordance herewith; provided that each Base Rate Revolving Advance shall only be made in Dollars. Each Lender at its option may make any Revolving Advance by causing any domestic or foreign branch or Affiliate of such Lender to make such Revolving Advance (and in the case of an Affiliate, the provisions of Sections 2.05(e), 2.16, 2.17 and 8.03(c) shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Revolving Advance in accordance with the terms of this Agreement. To request a Revolving Borrowing, the Borrower shall notify the Administrative Agent of such request (pursuant to a Notice of Revolving Borrowing) (i) not later than 12:00 noon (New York City time) on the Business Day prior to the date of such Revolving Borrowing if such Revolving Borrowing consists of Base Rate Revolving Advances, (ii) not later than 12:00 noon (Local Time) on the third Business Day prior to the date of such Revolving Borrowing if such Revolving Borrowing consists of Eurocurrency Rate Revolving Advances denominated in Dollars and (iii) not later than 12:00 noon (Local Time) on the fourth Business Day prior to the date of such Revolving Borrowing if such Revolving Borrowing consists of Eurocurrency Rate Revolving Advances denominated in a Foreign Loan Currency. Each such Notice of Revolving Borrowing shall be irrevocable upon receipt by the Administrative Agent.
(b)    Revolving Advances by Lenders. If the Administrative Agent receives a Notice of Revolving Borrowing, the Administrative Agent shall promptly give each Lender notice of such Notice of Revolving Borrowing. Each Lender shall, before 1:30 p.m. (Local time) on the date of such Revolving Borrowing in the case of any Revolving Borrowing to be made on such date, make available for the
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account of its Lending Office to the Administrative Agent such Lender’s ratable portion of such Revolving Borrowing by depositing immediately available funds in the applicable Agreed Loan Currency in the Administrative Agent’s Account. Unless the Administrative Agent shall have received written notice from a Lender prior to the date of any Revolving Borrowing hereunder that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Revolving Borrowing, the Administrative Agent may assume that such Lender has made such ratable portion available to the Administrative Agent on the date of such Revolving Borrowing in accordance with the terms hereof and the Administrative Agent may, in reliance upon such assumption, but shall not be required to, make available to or for the account of the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent and the Administrative Agent makes such ratable portion available to the Borrower, such Lender and the Borrower, without prejudice to any rights or remedies that the Borrower may have against such Lender, severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to or for the account of the Borrower until the date such amount is repaid to the Administrative Agent, at (A) in the case of the Borrower, the interest rate applicable at the time to the Revolving Advances comprising such Revolving Borrowing, and (B) in the case of such Lender, the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation (including without limitation the Overnight Foreign Currency Rate in the case of Revolving Advances denominated in a Foreign Loan Currency). If such Lender shall pay to the Administrative Agent such amount, such amount so paid shall constitute such Lender’s Revolving Advance as part of the relevant Revolving Borrowing for purposes of this Agreement and, to the extent that the Borrower previously paid such amount to the Administrative Agent, the Administrative Agent will refund to the Borrower such amount so paid, but without interest.
(c)    Disbursement of Revolving Advances. Upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make funds for any Revolving Borrowing available to the Borrower by crediting such amount to the account designated by the Borrower in the applicable Notice of Revolving Borrowing, subject to the Administrative Agent’s receipt of funds from the Lenders, and provided that the Administrative Agent shall first make a portion of such funds equal to any outstanding LC Disbursement under any Letter of Credit and any interest accrued and unpaid thereon to and as of such date, available to the applicable Issuing Lender for reimbursement of such LC Disbursement and payment of such interest.
SECTION 2.03.    Repayment of Revolving Advances.
The Borrower shall repay to each Lender (in accordance with the provisions of Section 2.14(a)) on the Maturity Date the aggregate principal amount of all Revolving Advances made to the Borrower and owing to such Lender outstanding on the Maturity Date.
SECTION 2.04.    Optional and Mandatory Prepayments of Revolving Advances; Voluntary Termination or Reduction of Commitments.
(a)    Optional Prepayments. The Borrower may, upon prior notice to the Administrative Agent (which shall be given not later than (i) 12:00 noon (New York City time) on the day of prepayment in the case of prepayment of Base Rate Revolving Advances, (ii) 12:00 noon (Local Time) three Business Days in advance in the case of prepayment of Eurocurrency Rate Revolving Advances denominated in Dollars or (iii) 12:00 noon (Local Time) four Business Days in advance in the case of prepayment of Eurocurrency Rate Revolving Advances denominated in a Foreign Loan Currency) stating the proposed
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date and aggregate principal amount of the prepayment and the Interest Type of Revolving Advances to be prepaid (and if such notice is given the Borrower shall), prepay in whole or in part, without premium or penalty, the outstanding principal of Revolving Advances of such Interest Type, together with, in the case of any prepayment of Eurocurrency Rate Revolving Advances, interest thereon to the date of such prepayment on the principal amounts prepaid (plus, in the case of prepayment of Eurocurrency Rate Revolving Advances prior to the end of the applicable Interest Period, any additional amount for which the Borrower shall be obligated pursuant to Section 8.03(c)); provided, however, that each partial prepayment of Revolving Advances shall be in an aggregate principal amount of not less than $3,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 3,000,000 units of such currency) or an integral multiple of $1,000,000 (or, if such Revolving is denominated in a Foreign Loan Currency, 1,000,000 units of such currency) in excess thereof.
(b)    Application of Prepayments. Prepayments of the Revolving Advances made pursuant to this Section 2.04 shall be first applied to prepay LC Disbursements then outstanding until such LC Disbursements are paid in full, and second applied to prepay Revolving Advances then outstanding comprising part of the same Revolving Borrowings until such Revolving Advances are paid in full. The amount remaining (if any) after the prepayment in full of the Revolving Advances then outstanding shall be applied as set forth in Section 2.14(d).
(c)    Voluntary Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, irrevocably terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such notice shall be received by the Administrative Agent not later than 1:00 p.m. (New York City time) five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if such reduction, after giving effect thereto and to any concurrent prepayments hereunder, would result in (x) the Dollar Equivalent of the aggregate Revolving Credit Exposures exceeding the Aggregate Commitments, (y) the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit exceeding the Revolving Facility Sublimit. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued in respect of the Aggregate Commitments until the effective date of any termination or reduction of the Aggregate Commitments shall be paid on the effective date of such termination or reduction, as applicable.
(d)    Mandatory Prepayments. If at any time (including on any Computation Date) (i) the Dollar Equivalent of the aggregate Revolving Credit Exposures exceeding the Aggregate Commitments, (ii) the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit exceeding the Revolving Facility Sublimit, (iii) the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Canadian Dollars exceeding the Canadian Dollar Sublimit or (iv) the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Pounds Sterling exceeding the Pounds Sterling Sublimit (any such excess amounts described in the foregoing clauses (i), (ii), (iii) or (iv), the “Loan Excess”), in each case, by $10,000,000 or more, the Administrative Agent shall provide notice thereof to the Borrower and demand the repayment of outstanding Revolving Advances pursuant to this paragraph. Within one (1) Business Day after the Business Day on which the Borrower receives such notice, the Borrower shall repay outstanding Revolving Advances in an amount sufficient to eliminate the full amount of such Loan
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Excess. The Administrative Agent shall produce copies of any calculations or reports relating to the foregoing upon written request from the Borrower or any Lender.
SECTION 2.05.    Interest on Revolving Advances.
The Borrower shall pay interest on the unpaid principal amount of each Revolving Advance made to the Borrower from the date of such Revolving Advance until such principal is paid in full at the applicable rate set forth below.
(a)    Interest on Base Rate Revolving Advances. Except as otherwise provided in this Agreement, the Borrower shall pay interest on the outstanding principal amount of each Base Rate Revolving Advance made to the Borrower, from the date of such Base Rate Revolving Advance until such principal amount is paid in full, payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing on the first such date to occur after the Closing Date, and on the Maturity Date, at a fluctuating interest rate per annum equal, subject to Section 2.05(d), to the Base Rate plus the Applicable Rate in effect from time to time.
(b)    Interest Periods for Eurocurrency Rate Revolving Advances. The Borrower may, pursuant to Section 2.05(c), elect to have the interest on the principal amount of all or any portion of any Revolving Advances made or to be made to the Borrower under Section 2.01, in each case ratably according to the respective outstanding principal amounts of Revolving Advances owing to each Lender, determined and payable for the applicable Interest Period for such Eurocurrency Rate Revolving Advance) in accordance with Section 2.05(c), provided, however, that the Borrower may not (i) make any such election with respect to any LC Disbursements, or (ii) have more than ten Eurocurrency Rate Revolving Advances owing to any Lender outstanding at any one time.
(c)    Interest on Eurocurrency Rate Revolving Advances. The Borrower may from time to time, on the condition that no Default or Event of Default has occurred and is continuing, and subject to the provisions of Sections 2.05(b) and 2.05(e), elect to pay interest on all or any portion of any Revolving Advances made to the Borrower during any Interest Period therefor at a rate per annum equal to the sum of the applicable Eurocurrency Rate for such Interest Period for such Revolving Advances plus the Applicable Rate in effect from time to time, by notice, specifying the amount of the Revolving Advances as to which such election is made (which amount shall aggregate at least $3,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 3,000,000 units of such currency) or any multiple of $1,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 1,000,000 units of such currency) in excess thereof) and the first day and duration of such Interest Period, received by the Administrative Agent before 12:00 noon (Local Time) (i) three Business Days prior to the first day of such Interest Period if the applicable Revolving Advance is denominated in Dollars or (ii) four Business Days prior to the first day of such Interest Period if the applicable Revolving Advance is denominated in a Foreign Loan Currency. If the Borrower has made such election for Eurocurrency Rate Revolving Advances for any Interest Period, the Borrower shall pay interest on the unpaid principal amount of such Eurocurrency Rate Revolving Advances during such Interest Period, payable in arrears on the last day of such Interest Period and, in the case of any Interest Period which is longer than three months, on each three-month anniversary of the first day of such Interest Period, in each case at a rate equal, subject to Section 2.05(d), to the sum of the applicable Eurocurrency Rate for such Interest Period for such Eurocurrency Rate Revolving Advances plus the Applicable Rate in effect from time to time during such Interest Period. On the last day of each Interest Period for any Eurocurrency Rate Revolving Advance, (i) in the case of a Eurocurrency Rate Revolving Advance denominated in Dollars, the unpaid principal balance thereof shall automatically become and bear interest as a Base Rate Revolving Advance,
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except to the extent that the Borrower has elected to pay interest on all or any portion of such amount for a new Interest Period commencing on such day in accordance with this Section 2.05(c) and (ii) in the case of a Eurocurrency Rate Revolving Advance denominated in a Foreign Loan Currency, the unpaid principal balance thereof shall automatically become and bear interest as a Eurocurrency Rate Revolving Advance with an Interest Period of one month, except to the extent that the Borrower has elected to pay interest on all or any portion of such amount for a new Interest Period commencing on such day in accordance with this Section 2.05(c). Each notice by the Borrower under this Section 2.05(c) shall be irrevocable upon receipt by the Administrative Agent.
(d)    Default Interest. Upon the occurrence and during the continuance of an Event of Default, (i) interest shall accrue, after as well as before judgment, on any Revolving Advance then outstanding at a rate that is 2% per annum in excess of the interest rate otherwise payable under this Agreement with respect to such Revolving Advance (which, for the avoidance of doubt, shall include the Applicable Rate); provided that, (A) in the case of any Eurocurrency Rate Revolving Advance denominated in Dollars, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurocurrency Rate Revolving Advance shall thereupon become a Base Rate Revolving Advance and shall thereafter bear interest, after as well as before judgment, at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Base Rate Revolving Advances and (B) in the case of any Eurocurrency Rate Revolving Advance denominated in a Foreign Loan Currency, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurocurrency Rate Revolving Advance shall thereupon become a Eurocurrency Rate Revolving Advance with an Interest Period of one month and shall thereafter bear interest, after as well as before judgment, at a rate which is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Eurocurrency Rate Revolving Advances, (ii) Letter of Credit Fees shall accrue, after as well as before judgment, at a rate which is 2% per annum in excess of the rate otherwise payable under this Agreement, (iii) reimbursement obligations in respect of LC Disbursements payable under Section 2.09(a) shall accrue, after as well as before judgment, at a rate which is 2% per annum in excess of the Letter of Credit Fee plus the Base Rate in effect from time to time and (iv) interest shall accrue, to the fullest extent permitted by law, after as well as before judgment, and except as otherwise provided in Section 2.11 or clauses (i), (ii) or (iii) above, on any overdue principal, interest or other amounts payable hereunder (including the Commitment Fee) at a rate that is 2% per annum in excess of the interest rate otherwise payable under this Agreement with respect to Base Rate Revolving Advances. Such interest and other amounts shall be payable upon demand. Payment or acceptance of the increased rates of interest provided for in this Section 2.05(d) is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent, any Lender or any other Credit Party.
(e)    Suspension of Eurocurrency Rate Revolving Advances.
(i)    Illegality. Notwithstanding any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to perform its obligations hereunder to make Eurocurrency Rate Revolving Advances or to continue to fund or maintain Eurocurrency Rate Revolving Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent, (i) each Eurocurrency Rate Revolving Advance denominated in Dollars will automatically, upon such demand, convert into a Base Rate Revolving Advance, (ii) each Eurocurrency Rate Revolving Advance denominated in a Foreign Loan Currency shall be due and payable either on the last day of the Interest Period applicable thereto, if such Lender may lawfully continue to maintain such Eurocurrency Rate Revolving Advance to such date,
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or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Revolving Advance and (iii) the obligation of the Lenders to make, or to convert Revolving Advances into, Eurocurrency Rate Revolving Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension no longer exist.
(ii)    Alternate Rate of Interest.
(A)    Subject to clauses (B), (C), (D), (E), (F) and (G) of this Section 2.05(e)(ii), if prior to the commencement of any Interest Period for a Eurocurrency Rate Revolving Borrowing:

(i)    the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBO Rate, the EURIBO Rate, the Adjusted CDOR Rate or the CDOR Rate, as applicable (including because the Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Loan Currency and such Interest Period, provided that no Benchmark Transition Event shall have occurred at such time; or

(ii)    the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate, the LIBO Rate, the Adjusted EURIBO Rate, the EURIBO Rate, the Adjusted CDOR Rate or the CDOR Rate, , as applicable, for the applicable Agreed Loan Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Revolving Advances included in such Eurocurrency Rate Revolving Borrowing for the applicable Agreed Loan Currency and such Interest Period.

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Notice of Conversion/Continuation that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Rate Revolving Borrowing in the applicable currency or for the applicable Interest Period, as the case may be, shall be ineffective, (ii) if any Notice of Revolving Borrowing requests a Eurocurrency Rate Revolving Borrowing in Dollars, such Borrowing shall be made as a Base Rate Revolving Borrowing and (iii) if any Notice of Revolving Borrowing requests a Eurocurrency Rate Revolving Borrowing in a Foreign Loan Currency, then such request shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Interest Type of Borrowings, then the other Interest Type of Borrowings shall be permitted. Furthermore, if any Eurocurrency Rate Revolving Advance in any Agreed Loan Currency is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.05(e)(ii)(A) with respect to a Relevant Rate applicable to such Eurocurrency Rate Revolving Advance, then (i) if such Eurocurrency Rate Revolving Advance is denominated in Dollars, then on the last day of the Interest Period applicable to such Revolving Advance (or the next succeeding Business Day if such day is not a Business Day), such Revolving Advance shall be converted by the Administrative Agent to, and shall constitute, a Base Rate Revolving Advance denominated in Dollars on such day or (ii) if such Eurocurrency Rate Revolving Advance is denominated in any Agreed Loan Currency (other than Dollars), then such Revolving Advance
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shall, on the last day of the Interest Period applicable to such Revolving Advance (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election prior to such day: (1) be prepaid by the Borrower on such day or (2) be converted by the Administrative Agent to, and (subject to the remainder of this subclause (2)) shall constitute, a Base Rate Revolving Advance denominated in Dollars (in an amount equal to the Dollar Amount of such Agreed Loan Currency) on such day (it being understood and agreed that if the Borrower does not so prepay such Loan on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Rate Revolving Advance into a Base Rate Revolving Advance denominated in Dollars), and, in the case of such subclause (2), upon the Borrower’s receipt of notice from the Administrative Agent that the circumstances giving rise to the aforementioned notice no longer exist, such Base Rate Revolving Advance denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Rate Revolving Advance denominated in such original Agreed Loan Currency (in an amount equal to the Exchange Equivalent of such Agreed Loan Currency) on the day of such notice being given to the Borrower by the Administrative Agent.

(B)    Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.

(C)    Notwithstanding anything to the contrary herein or in any other Loan Document and subject to the proviso below in this paragraph, solely with respect to a Revolving Advance denominated in Dollars, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document; provided that, this clause (C) shall not be effective unless the Administrative Agent has delivered to the Lenders and the Borrower a Term SOFR Notice. For the avoidance of doubt, the Administrative Agent shall not be required to deliver a Term SOFR Notice after a Term SOFR Transition Event and may do so in its sole discretion.

(D)    In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any
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amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(E)    The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (F) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.05(e)(ii), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.05(e)(ii).

(F)    Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or the LIBO Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(G)    Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a Eurocurrency Rate Revolving Borrowing of, conversion to or continuation of Eurocurrency Rate Revolving Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either (x) the Borrower will be deemed to have converted any request for a Eurocurrency Rate Revolving Borrowing denominated in Dollars into a request for a Borrowing of or conversion to Base Rate Revolving Loans or (y) any request for a Eurocurrency Rate Revolving Borrowing denominated in a Foreign Loan Currency shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate. Furthermore, if any Eurocurrency Rate Revolving Advance in any Agreed Loan Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Eurocurrency Rate Revolving Advance, then (i) if such Eurocurrency Rate Revolving Advance is denominated in Dollars, then on the last day of the Interest Period applicable to such Revolving Advance (or the next succeeding Business Day if such day is not a Business Day), such Revolving Advance shall be converted by the Administrative Agent to, and shall constitute, a Base Rate Revolving Advance
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denominated in Dollars on such day or (ii) if such Eurocurrency Rate Revolving Advance is denominated in any Agreed Loan Currency (other than Dollars), then such Revolving Advance shall, on the last day of the Interest Period applicable to such Revolving Advance (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election prior to such day: (1) be prepaid by the Borrower on such day or (2) be converted by the Administrative Agent to, and (subject to the remainder of this subclause (2)) shall constitute, a Base Rate Revolving Advance denominated in Dollars (in an amount equal to the Dollar Amount of such Agreed Loan Currency) on such day (it being understood and agreed that if the Borrower does not so prepay such Revolving Advance on such day by 12:00 noon, Local Time, the Administrative Agent is authorized to effect such conversion of such Eurocurrency Rate Revolving Advance into a Base Rate Revolving Advance denominated in Dollars), and, in the case of such subclause (2), upon any subsequent implementation of a Benchmark Replacement in respect of such Agreed Loan Currency pursuant to this Section 2.05(e)(ii), such Base Rate Revolving Advance denominated in Dollars shall then be converted by the Administrative Agent to, and shall constitute, a Eurocurrency Rate Revolving Advance denominated in such original Agreed Loan Currency (in an amount equal to the Exchange Equivalent of such Agreed Loan Currency) on the day of such implementation, giving effect to such Benchmark Replacement in respect of such Agreed Loan Currency.

(f)    Suspension on Event of Default. Upon the occurrence and during the continuance of any Event of Default, (i) each Eurocurrency Rate Revolving Advance denominated in Dollars will automatically, on the last day of the then existing Interest Period therefor, convert into a Base Rate Revolving Advance, (ii) each Eurocurrency Rate Revolving Advance denominated in a Foreign Loan Currency will automatically, on the last day of the then existing Interest Period therefor, become due and payable, and (iii) the obligation of the Lenders to make, or to convert Revolving Advances into, Eurocurrency Rate Revolving Advances shall be suspended.
SECTION 2.06.    Conversion and Continuation of Revolving Advances.
(a)    Optional. So long as no Default or Event of Default shall have occurred and then be continuing, the Borrower shall have the option: (i) to convert at any time all or any part of any Revolving Advance equal to $3,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 3,000,000 units of such currency) and integral multiples of $1,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 1,000,000 units of such currency) in excess of that amount from one Interest Type comprising the same Revolving Borrowing into Revolving Advances of the other Interest Type; provided, a Eurocurrency Rate Revolving Advance may only be converted on the expiration of the Interest Period applicable to such Eurocurrency Rate Revolving Advance unless the Borrower shall pay all amounts due under Section 8.03(c) in connection with any such conversion; or (ii) upon the expiration of any Interest Period applicable to any Eurocurrency Rate Revolving Advance, to continue all or any portion of such Revolving Advance equal to $3,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 3,000,000 units of such currency) and integral multiples of $1,000,000 (or, if such Revolving Advance is denominated in a Foreign Loan Currency, 1,000,000 units of such currency) in excess of that amount as a Eurocurrency Rate Revolving Advance. The Borrower shall deliver a Notice of Conversion/Continuation to the Administrative Agent no later than (i) 12:00 noon (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Revolving Advance), (ii) 12:00 noon (Local Time) at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurocurrency Rate Revolving Advance denominated in Dollars) and (iii) 12:00 noon (Local Time) at least four Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurocurrency Rate Revolving Advance denominated in a Foreign Loan Currency). Except as otherwise provided herein, a Notice of Conversion/
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Continuation for conversion to, or continuation of, any Eurocurrency Rate Revolving Advances shall be irrevocable and binding on the Borrower and shall be subject to Section 8.03(c). Each conversion of Revolving Advances comprising part of the same Revolving Borrowing shall be made ratably among the Lenders in accordance with their applicable Commitments in respect of the Revolving Facility Sublimit. Notwithstanding any contrary provision herein, this Section 2.06(a) shall not be construed to permit the Borrower to change the currency of any Revolving Advance or (ii) elect an Interest Period for Eurocurrency Rate Revolving Advances that does not comply with Section 2.05(b).
(b)    Mandatory. On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Revolving Advances denominated in Dollars comprising any Revolving Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $3,000,000, such Revolving Advances shall automatically convert into Base Rate Revolving Advances.
SECTION 2.07.    Issuance of Letters of Credit.
(a)    Letter of Credit Request. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of, and each Issuing Lender, in reliance on the agreements of the Lenders set forth in Section 2.08 hereof, agrees to issue Financial Letters of Credit and Performance Letters of Credit at any time and from time to time during the period from the Closing Date through the date that is seven Business Days prior to the Maturity Date. To request the issuance of a Letter of Credit, the Borrower shall deliver to the applicable Issuing Lender and the Administrative Agent (reasonably in advance of the requested date of issuance, and, in any event, not less than five Business Days prior to such requested date of issuance) an Application requesting the issuance of such Letter of Credit and specifying the date of issuance (which shall be a Business Day), the address of the beneficiary thereof, the amount and currency of such Letter of Credit, the type of such Letter of Credit (Financial Letter of Credit or Performance Letter of Credit) and such other information as shall be necessary to prepare such Letter of Credit (and the Administrative Agent shall promptly provide notice to each Lender of each issuance of a Letter of Credit hereunder). To request the amendment of a Letter of Credit, the Borrower shall deliver to the applicable Issuing Lender and the Administrative Agent (reasonably in advance of the requested date of amendment, and, in any event, not less than three Business Days prior to such requested date of amendment) an Application requesting the amendment of such Letter of Credit and specifying such other information as shall be necessary to prepare such amendment (and the Administrative Agent shall promptly provide notice to each Lender of each amendment of a Letter of Credit hereunder). Notwithstanding anything to the contrary contained herein, no Issuing Lender shall issue or amend any Letter of Credit if, after giving effect to such issuance or amendment, (i) subject to Section 2.04(d) and Section 2.12(b), the Dollar Equivalent of the aggregate Revolving Credit Exposures would exceed the Aggregate Commitments, (ii) subject to Section 2.04(d) and Section 2.12(b), the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit would exceed the Revolving Facility Sublimit or (iii) subject to Section 2.12(b), the Dollar Equivalent of the aggregate amount of all Letters of Credit issued and then outstanding by any Issuing Lender exceeds such Issuing Lender’s Applicable LC Sublimit. The applicable Issuing Lender shall obtain written confirmation of the immediately preceding sentence in writing from the Administrative Agent prior to issuing or amending any Letter of Credit hereunder; provided that it is understood and agreed that if the applicable Issuing Lender has not obtained such confirmation from the Administrative Agent, any such Letter of Credit purported to be so issued or amended shall be deemed to not be issued under this Agreement and shall not be part of the Obligations or the Secured Obligations. The Borrower’s reimbursement obligations in respect of each Existing Letter of Credit, and each Lender’s participation obligations in connection therewith, shall be governed by the terms of this Agreement.
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(b)    Terms of Letters of Credit. Each Letter of Credit shall expire on an expiry date (such date being the “Expiration Date”) not later than the seventh Business Day prior to the Maturity Date. Notwithstanding the foregoing sentence to the contrary, a Letter of Credit may expire up to six (6) months after the Maturity Date so long as the Borrower (i) cash collateralizes an amount equal to 105% of the face amount of such Letter of Credit or (ii) provides a backstop letter of credit in respect of such Letter of Credit, in each case sixty (60) days prior to the Maturity Date and, in each case, on terms and conditions set forth in Section 2.12(d) and otherwise reasonably acceptable to (and in the case of a backstop letter of credit, by a letter of credit issuer reasonably acceptable to) the applicable Issuing Lender and the Administrative Agent. For the avoidance of doubt, if the Maturity Date shall be extended pursuant to Section 2.25, “Maturity Date” as referenced in this clause (b) shall refer to the Maturity Date as extended pursuant to Section 2.25; provided that, notwithstanding anything in this Agreement (including Section 2.25 hereof) or any other Loan Document to the contrary, the Maturity Date, as such term is used in reference to the Issuing Lender or any Letter of Credit issued thereby, may not be extended without the prior written consent of the relevant Issuing Lender. In the event that the applicable Issuing Lender’s office is closed on the applicable Expiration Date, such date shall be extended to the next Business Day on which such office is open. Each Letter of Credit shall be issued hereunder so long as the applicable Issuing Lender, in its sole discretion, determines that (i) such issuance is lawful, (ii) in the case of Financial Letters of Credit, such Letter of Credit qualifies as (x) a financial guarantee-type letter of credit under applicable rules and regulations and (y) in the case of backing Financial Letters of Credit, an independent undertaking for regulatory purposes, (iii) in the case of Performance Letters of Credit, such Letter of Credit qualifies as (x) a performance based letter of credit under applicable rules and regulations and (y) in the case of backing Performance Letters of Credit, an independent undertaking for regulatory purposes and (iv) such issuance does not violate any terms or provisions of this Agreement or any limitations on the amount of Letters of Credit an Issuing Lender may issue hereunder as separately agreed between the Issuing Lender and the Borrower. Each Letter of Credit shall be denominated in Dollars or in a Foreign LC Currency. The face or stated amount of any Letter of Credit shall not be less than $100,000 (or the Exchange Equivalent thereof determined as of the date of issuance) or such lesser amount as is acceptable to the applicable Issuing Lender. At no time shall (i) the aggregate outstanding principal amount of the Revolving Advances of all of the Lenders plus the aggregate LC Exposure (or the Dollar Equivalent thereof) of all of the Lenders exceed the Aggregate Commitments or (ii) the aggregate outstanding principal amount of the Revolving Advances of all of the Lenders plus the aggregate LC Exposure (or the Dollar Equivalent thereof) in respect of Financial Letters of Credit exceed the Revolving Facility Sublimit. The applicable Issuing Lender shall not be under any obligation to issue or amend any Letter of Credit if (i) the issuance or amendment of such Letter of Credit would violate one or more policies of the applicable Issuing Lender or any limitations on the amount of Letters of Credit such Issuing Lender may issue hereunder as separately agreed between the Issuing Lender and the Borrower or (ii) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable Issuing Lender from issuing or amending such Letter of Credit, or any law applicable to such Issuing Lender or any request or directive from any Governmental Authority with jurisdiction over such Issuing Lender shall prohibit, or request that such Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular. In the event of any inconsistency between the terms and conditions of any Application delivered by the Borrower pursuant to Section 3.02 and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control. The applicable Issuing Lender will promptly deliver to the Administrative Agent a true and complete copy of each Letter of Credit issued by it hereunder and each amendment thereto.
(c)    Letters of Credit Issued on behalf of Subsidiaries and Other Related Entities. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of the Borrower on behalf of a Subsidiary or any other Related Entity, the
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Borrower shall be unconditionally obligated to reimburse the applicable Issuing Lender hereunder for any and all drawings under such Letter of Credit relating thereto. The Borrower will, at its expense, promptly execute, acknowledge and deliver such further documents and do such other acts and things as the Administrative Agent or the applicable Issuing Lender may reasonably request in order to effect fully the purposes of this Section 2.07(c).
(d)    Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing Lender and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.
(e)    Existing Letters of Credit. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
SECTION 2.08.    Participations in Letters of Credit.
On the Closing Date with respect to each Existing Letter of Credit and upon the issuance of any other Letter of Credit (or upon a Person becoming a Lender hereunder), in each case without any further action on the part of the Issuing Lenders or the Lenders, the applicable Issuing Lender hereby grants to each Lender, and each Lender hereby acquires from the applicable Issuing Lender, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such type of Letter of Credit (Financial Letter of Credit or Performance Letter of Credit). In consideration and in furtherance of the foregoing, each such Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Lender, such Lender’s Applicable Percentage (calculated in accordance with the Commitments in respect of the applicable type of Letter of Credit) of each LC Disbursement made by the applicable Issuing Lender and not reimbursed for any reason by the Borrower on the date due as provided in Section 2.09 hereof, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations and make payments pursuant to this paragraph in respect of each Letter of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever (other than the issuance of any Letter of Credit in excess of the amounts described in Section 2.07(a) as of the date of issuance and other than amendments to any Letter of Credit in violation of Section 8.05 to provide for an Expiration Date subsequent to the Maturity Date), including the occurrence and continuance of a Default or such participation or payment exceeding such Lender’s Commitments or the Aggregate Commitments or the Revolving Facility Sublimit by reason of currency fluctuations, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
SECTION 2.09.    Reimbursement in Respect of Letters of Credit.
(a)    Reimbursement Obligations. If any Issuing Lender shall make any LC Disbursement, such Issuing Lender shall promptly notify the Borrower and the Administrative Agent of such LC Disbursement, and the Borrower shall reimburse such Issuing Lender through the Administrative Agent in an amount equal to such LC Disbursement by paying such Issuing Lender through the Administrative Agent in Dollars an amount equal to such LC Disbursement (or the Dollar Equivalent thereof, as applicable): (i) not later than 2:00 p.m. (New York City time) on the Business Day immediately following the date that such Issuing Lender notifies the Borrower that such LC Disbursement is made by such Issuing Lender or (ii), if the Borrower shall have received notice of such LC Disbursement later than 2:00 p.m. (New York City time) on any Business Day or on a day that is not a
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Business Day, not later than 2:00 p.m. (New York City time) on the immediately following Business Day. If the Borrower fails to make such payment under this paragraph at the time specified in the preceding sentence, the applicable Issuing Lender shall notify each Lender and the Administrative Agent of the applicable LC Disbursement, the payment in Dollars then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. The amounts set forth in such notice shall be conclusive absent manifest error. Upon the receipt of such notice, (x) the Borrower shall be deemed to have submitted, as of the date that such LC Disbursement is made, a Notice of Revolving Borrowing (and shall be deemed to have made certifications, representations and warranties set forth therein) for a Revolving Advance consisting of a Base Rate Revolving Advance in the amount of such LC Disbursement (or the Dollar Equivalent thereof, as applicable), (y) if all terms and conditions set forth herein for making a Revolving Advance (other than the receipt of a Notice of Revolving Borrowing) shall have been satisfied, such Revolving Advance shall be made as provided in Sections 2.01 and 2.02 except that the amount of such Revolving Advance shall be disbursed to the applicable Issuing Lender and (z) such Revolving Advance shall be subject to and governed by the terms and conditions hereof. In the event a Revolving Advance is not made as provided in the immediately preceding sentence for any reason (including as a result of any failure to fulfill the applicable conditions set forth in Section 2.02 or Article III) or any Revolving Advance made pursuant to the immediately preceding sentence is insufficient to reimburse the applicable Issuing Lender for such LC Disbursement in full, each Lender shall forthwith pay to the applicable Issuing Lender through the Administrative Agent in Dollars its Applicable Percentage of the unreimbursed LC Disbursement. If any amount required to be paid by any Lender in respect of an unreimbursed LC Disbursement pursuant to this Section 2.09 is not made available to the applicable Issuing Lender by such Lender on the date such payment is due (the “due date”), the applicable Issuing Lender shall be entitled to recover from such Lender, on demand, such amount with interest thereon calculated from the due date at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this Section 2.09, to the extent that Lenders have made payments pursuant to this Section 2.09 to reimburse such Issuing Lender, then the Administrative Agent shall distribute such payment received from the Borrower to such Lenders as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse any Issuing Lender for any LC Disbursement shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. Each Lender acknowledges and agrees that its obligations under this Section 2.09 shall survive the payment by the Borrower of all LC Disbursements and any termination of this Agreement. Without limiting the foregoing, in the event that any reimbursement of an LC Disbursement by the Borrower to any Issuing Lender is required to be repaid to the Borrower (pursuant to a proceeding in bankruptcy or otherwise), then the applicable Issuing Lender shall continue to be entitled to recover from each Lender, on demand, the portion of such repaid amount as shall be determined in accordance with this Section 2.09.
(b)    Obligations Absolute. Subject to the provisions of this Agreement, the Borrower’s obligation to reimburse LC Disbursements as provided in Section 2.09(a) shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein or herein, (ii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing Lender under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) the existence of any claim, setoff, defense or other right that the Borrower or any Subsidiary or Affiliate thereof may at any time have against any beneficiary of any Letter of Credit, any Credit Party or any other Person, whether under this Agreement or any other related
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or unrelated agreement or transaction, or (v) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.09, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. The Lenders, the Issuing Lenders and the Administrative Agent shall not have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of any Issuing Lender. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Lender (as finally determined by a court of competent jurisdiction), such Issuing Lender shall be deemed to have exercised care in each determination relating to the foregoing. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of any Letter of Credit, the applicable Issuing Lender may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
SECTION 2.10.    Disbursement Procedures for Letters of Credit; Reporting.
(a)    Disbursement Procedures for Letters of Credit. The applicable Issuing Lender shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The applicable Issuing Lender shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Lender has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse such Issuing Lender or the obligations of the Lenders with respect to any such LC Disbursement.
(b)    Reporting. Each Issuing Lender shall, no later than the tenth Business Day following the last day of each month, provide to the Administrative Agent (and the Administrative Agent shall forward to the Lenders) schedules, in form and substance reasonably satisfactory to the Administrative Agent, showing the date of issue, account party, applicable currency, amount in such currency and Expiration Date for each Letter of Credit issued by such Issuing Lender hereunder and outstanding at any time during such month.
SECTION 2.11.    Interest on LC Disbursements and Reimbursement of Other Amounts.
In the event the Borrower fails to reimburse any applicable Issuing Lender in full for any LC Disbursement by the time prescribed in Section 2.09(a) and a Revolving Advance is not made as provided in Section 2.09(a) or any Revolving Advance made pursuant to Section 2.09(a) is insufficient to reimburse the applicable Issuing Lender for such LC Disbursement in full, (i) the unpaid or unreimbursed amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, after as well as before judgment, at a rate per annum equal to the sum of (x) the Letter of Credit Fee and (y) the Base Rate plus 2.0%, and (ii) the Borrower shall also reimburse the applicable Issuing Lender upon demand for any losses incurred by such Issuing Lender in connection with changes in the foreign exchange rates as a
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result of the Borrower’s failure to reimburse such LC Disbursement by the time prescribed in Section 2.09(a). Interest accrued pursuant to this Section 2.11 shall be for the account of the applicable Issuing Lender, except that interest accrued on and after the date of payment by any Lender pursuant to Section 2.09(a) to reimburse the applicable Issuing Lender shall be for the account of such Lender to the extent of such payment.
SECTION 2.12.    Cash Collateralization.
(a)    Deposit of Collateral Upon an Event of Default. If any Event of Default shall occur and be continuing, then on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders, as applicable, demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash in Dollars equal to the 105% of the Dollar Equivalent of the aggregate LC Exposure as of such date plus any accrued and unpaid fees thereon; provided that (i) the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default described in paragraph (g) or (h) of Section 6.01 and (ii) the Borrower shall be obligated, from time to time and upon demand by the Administrative Agent, to deposit additional amounts into said account in cash in Dollars as necessary to maintain an amount on deposit equal to the amount (including, with respect to LC Exposure denominated in Foreign LC Currencies, the Dollar Equivalent thereof) of the total aggregate LC Exposure plus any accrued and unpaid fees thereon (as determined at any time). All such cash collateral amounts shall be held in a separate account and shall not be commingled with other funds of the Administrative Agent unless the Administrative Agent elects to make a Permitted Cash Equivalent Investment, as described below.
(b)    Deposit of Collateral for Foreign Exchange Differential. In addition to the foregoing, if on any Computation Date (i) the Dollar Equivalent of the aggregate Revolving Credit Exposures exceeds the Aggregate Commitments, (ii) the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit exceeds the Revolving Facility Sublimit or (iii) the Dollar Equivalent of the aggregate face amount of all Letters of Credit issued and then outstanding by any Issuing Lender exceeds such Issuing Lender’s Applicable LC Sublimit (any such excess amounts described in the foregoing clauses (i), (ii) and (iii), the “LC Excess”), in each case, by $10,000,000 or more, the Administrative Agent shall provide notice thereof to the Borrower and demand the deposit of cash collateral pursuant to this paragraph. Within one (1) Business Day after the Business Day on which the Borrower receives such notice, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders and the Issuing Lenders, an amount in cash in Dollars equal to the full amount of such LC Excess; provided that the Borrower shall be obligated, from time to time and upon demand by the Administrative Agent, to deposit additional amounts into said account in cash in Dollars as necessary to maintain an amount on deposit equal to the LC Excess (as determined at any time). The Administrative Agent shall produce copies of any calculations or reports relating to the foregoing upon written request from the Borrower or any Lender. If the Borrower is required to provide an amount of cash collateral under this clause (b) as a result of any LC Excess, and the Administrative Agent shall subsequently determine on any Computation Date that the amount of such LC Excess is less than the amount on deposit in respect of the existence of such LC Excess, then (provided there is no Default then in existence) such excess amount of cash, if greater than $1,000,000 (to the extent not applied as aforesaid), shall be returned to the Borrower within three (3) Business Days after request therefor by the Borrower.
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(c)    Deposit of Collateral for Defaulting Lenders. In addition to the foregoing and subject to Section 2.22, if any Lender becomes a Defaulting Lender and while any LC Exposure exists, for so long as such Lender is a Defaulting Lender and such LC Exposure exists, then within two (2) Business Days following notice by the Administrative Agent demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall (i) deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, and/or (ii) subject to the following proviso (2), provide Permitted Cover, in each case an amount in cash in Dollars equal to the Dollar Equivalent of such Defaulting Lender’s Applicable Percentage of the aggregate LC Exposure as of such date; provided that (1) the Borrower shall be obligated, from time to time and within two (2) Business Days following notice by the Administrative Agent demanding the deposit of additional cash collateral and/or Permitted Cover pursuant to this paragraph, to deposit additional amounts into said account in cash in Dollars, and/or to provide additional Permitted Cover, in each case as necessary to maintain an amount on deposit and/or Permitted Cover equal to the Dollar Equivalent of such Defaulting Lenders’ Applicable Percentage of the then aggregate LC Exposure and (2) the foregoing option to provide Permitted Cover in lieu of cash collateral shall only be available to the Borrower for a period not to exceed one (1) month after such notice by the Administrative Agent demanding deposit of cash collateral and upon the expiration of such period, the Borrower shall deposit cash collateral in the amount of such Defaulting Lender's LC Exposure as contemplated by this clause (c) and the failure to provide such deposit shall constitute an Event of Default. Payment by the Borrower of such cash collateral or provision of Permitted Cover shall not relieve the Defaulting Lender of its obligations hereunder, and the Borrower shall retain all of its rights and remedies hereunder and under applicable law against any such Defaulting Lender.
(d)    Cash Collateral Accounts. Each deposit and Permitted Cover under Section 2.07(b) and Sections 2.12(a), (b) and (c) shall be held by the Administrative Agent (subject to Section 7.09) as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. If required by the Administrative Agent, the Borrower shall enter into any pledge or security agreement and any UCC financing statement with respect to such cash collateral in favor of the Administrative Agent as the Administrative Agent shall require. Such deposits shall be invested in Permitted Cash Equivalent Investments selected by the Administrative Agent in its sole discretion. All losses and expenses incurred as a result of such Permitted Cash Equivalent Investment activities shall be for the account of the Borrower. Interest or profits, if any, on such investments shall accumulate in such accounts for the account of the Borrower. Moneys in such accounts shall be applied by the Administrative Agent (i) to reimburse Issuing Lenders for LC Disbursements for which they have not been reimbursed; and (ii) to the extent not so applied, may be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or any other Obligations or to cover any losses in respect of any LC Excess; provided that moneys in such accounts relating to the Borrower’s obligations under Section 2.12(c) shall be applied by the Administrative Agent to reimburse the Issuing Lenders on a ratable basis for the applicable Defaulting Lender’s Applicable Percentage of LC Disbursements for which the Issuing Lenders have not been reimbursed. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, and all Defaults are subsequently cured or waived and no LC Excess is then in existence, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after request therefor by the Borrower. If the Borrower is required to provide an amount of cash collateral hereunder as a result of any LC Excess, and the Administrative Agent shall subsequently determine that the amount of such LC Excess is equal to or less than the amount on deposit in respect of the existence of such LC Excess, provided there is no Default then in existence, such excess amount of cash, if greater than $1,000,000 (to the extent not applied as aforesaid), shall be returned to the Borrower within three Business Days after request therefor by the Borrower. If the Borrower is required to provide an amount
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of cash collateral hereunder as a result of any Lender becoming a Defaulting Lender, and such Lender ceases to be a Defaulting Lender or the LC Exposure and Revolving Advances outstanding are subsequently reduced such that the amount of cash collateral provided therefor exceeds such Defaulting Lender’s Applicable Percentage of the sum of the LC Exposure and Revolving Advances outstanding, such cash collateral (or excess amount of cash collateral, if applicable), to the extent not previously applied to the Defaulting Lender’s obligations hereunder, shall be returned to the Borrower within three (3) Business Days after request therefor by the Borrower.
(e)    Custody of Cash Collateral. Beyond the exercise of reasonable care in the custody thereof and investment of cash collateral deposits pursuant to the terms hereof, the Administrative Agent shall have no duty as to any cash collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the cash collateral in its possession if the cash collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or damage to any of the cash collateral or for any diminution in the value thereof by reason of the act or omission of any agent or bailee selected by the Administrative Agent in good faith. All expenses and liabilities incurred by the Administrative Agent in connection with taking, holding and disposing of any cash collateral (including customary custody and similar fees with respect to any cash collateral held directly by the Administrative Agent), shall be paid by the Borrower from time to time upon demand.
SECTION 2.13.    Obligations.
Anything in this Agreement to the contrary notwithstanding, the Borrower and each Lender shall continue to be bound by all of its obligations hereunder, including without limitation, its obligations under Sections 2.03, 2.08 and 2.09, until such time as all outstanding Revolving Advances have been paid in full, each Letter of Credit has expired and no further Obligation, LC Exposure or Commitment exists.
SECTION 2.14.    General Provisions as to Payments.
(a)    Manner and Time of Payment. The Borrower shall make each payment to be made by it hereunder (including, without limitation, in respect of the LC Disbursements), and interest thereon, and all fees due in respect of the transactions contemplated by this Agreement in the applicable Agreed Currency (or in the case of LC Disbursements, in Dollars) in Federal or other funds immediately available in New York, New York, without set-off, deduction or counterclaim, to the Administrative Agent at its address referred to in Section 8.01(a). Except as otherwise provided in Section 2.05(b)(ii), whenever any such payment shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or additional compensation. If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time. Any payment made by the Borrower after 2:00 p.m. (New York City time) on any day shall be deemed to have been made on the next Business Day for the purpose of calculating interest on amounts outstanding in respect of any Obligations. All payments required to be made by the Borrower hereunder shall be made in Dollars and shall be made without setoff or counterclaim.
(b)    Application of Payments to Principal and Interest. All payments in respect of the principal amount of any Obligations hereunder shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any
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Obligations on a date when interest is due and payable with respect to such Obligations) shall be applied to the payment of interest before application to principal.
(c)    Apportionment of Payments. The Administrative Agent will promptly distribute to each Lender its ratable share of each payment received by the Administrative Agent which is for the account of the Lenders.
(d)    Application of Funds. Subject to Section 6.03, if applicable, (i) All payments received from the Borrower by the Administrative Agent which are not reasonably identifiable by the Administrative Agent shall be applied by the Administrative Agent against the Obligations, and (ii) any amounts received on account of the Obligations after the exercise of remedies provided for in Section 6.02 (or after the Revolving Advances have automatically become immediately due and payable and the LC Exposure has automatically been required to be cash collateralized as set forth in the proviso to Section 6.02), in each case in the following order of priority: (A) to the payment of all amounts for which the Administrative Agent is entitled to compensation, reimbursement and indemnification under any Loan Document and all advances made by the Administrative Agent thereunder for the account of the Borrower, and to the payment of all reasonable costs and expenses paid or incurred by the Administrative Agent in connection with the Loan Documents, all in accordance with Sections 7.06 and 8.03 and the other terms of this Agreement and the Loan Documents; (B) thereafter, to the extent of any excess such proceeds, to the payment of all other Obligations for the ratable benefit of the holders thereof (subject to the provisions of Section 2.14(b) hereof); and (C) thereafter, to the extent of any excess such proceeds, to the Borrower or as otherwise required by applicable law.
(e)    Obligations of Lenders Several. The obligations of the Lenders hereunder to make Revolving Advances, to fund participations in Letters of Credit and to make payments pursuant to Section 7.06 are several and not joint. The failure of any Lender to make the Revolving Advance to be made by it as part of any Revolving Borrowing, to fund any such participation or to make any payment under Section 7.06 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Advance, to purchase its participation or to make its payment under Section 7.06.
SECTION 2.15.    Computation of Interest and Fees.
Interest on all amounts owed hereunder shall be computed on the basis of a year of 360 days, except that interest (i) (A) computed by reference to the Base Rate (calculated at other than the NYFRB Rate or the Eurocurrency Rate) and (B) computed by referenced to the CDOR Rate, in each case shall be computed on the basis of a year of 365 days or, if applicable, 366 days and (ii) for Revolving Borrowings denominated in Pounds Sterling shall be computed on the basis of a year of 365 days, and in each case all interest hereunder shall be payable for the actual number of days elapsed (including the first day but excluding the last day). All fees due and payable hereunder shall, unless expressly otherwise provided for, be computed on the basis of a year of 360 days for the actual number of days elapsed. The applicable Base Rate, Adjusted LIBO Rate, LIBO Rate, Adjusted EURIBO Rate, EURIBO Rate, Adjusted CDOR Rate and CDOR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.16.    Taxes; Net Payments.
(a)    Net Payments. Any and all payments by or on account of any obligation of any Loan Party under this Agreement shall be made free and clear of and without deduction or withholding for any
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and all current or future taxes, levies, imposts, deductions, fees, assessments, duties, charges or withholdings (including backup withholding) and all liabilities (including interest, additions to tax or penalties) with respect thereto (“Taxes”) except as required by applicable law. If any Loan Party or the Administrative Agent shall be required (as determined in the good faith discretion of such Loan Party or the Administrative Agent) by applicable laws to deduct or withhold any Taxes from or in respect of any sum payable hereunder, (A) if such Taxes are (i) Taxes other than Excluded Taxes or (ii) Other Taxes (all such non-Excluded Taxes are collectively referred to as “Indemnified Taxes”), the sum payable by such Loan Party shall be increased by the amount (an “additional amount”) necessary so that after making all required deductions and withholdings (including such deductions and withholdings applicable to additional sums payable under this Section 2.16) the applicable Recipient shall receive an amount equal to the sum it would have received had no such deductions or withholdings been made, (B) such Loan Party or the Administrative Agent shall be entitled to make such deductions or withholdings and (C) such Loan Party or the Administrative Agent shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. As soon as practicable after any payment of Taxes pursuant to this paragraph (a) by a Loan Party, the relevant Loan Party shall furnish to the Administrative Agent a receipt issued by the relevant Governmental Authority, if applicable, or other evidence satisfactory to the Administrative Agent of payment thereof. Each Loan Party shall jointly and severally indemnify each Recipient and hold each such Recipient harmless, within 10 days after demand therefor, for the full amount of all Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paid or payable by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto whether or not such Indemnified Taxes were correctly or legally asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared by such Recipient or by the Administrative Agent on such Recipient’s behalf, absent manifest error, shall be final, conclusive and binding for all purposes. The obligations of each party under this Section 2.16 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Recipient, termination of this Agreement and the Commitments and the payment, satisfaction or discharge of all Obligations under the Loan Documents.
(b)    Evidence of Exemption from Withholding. To the extent it is legally entitled to do so, each Lender shall deliver to the Borrower and the Administrative Agent such certificates, documents or other evidence as the Borrower or the Administrative Agent may reasonably require from time to time as are necessary to establish that such Lender is not subject to withholding, including backup withholding (or is subject to a reduced rate of withholding) under Section 1441 or 1442 of the Code or as may be necessary to establish, under any law hereafter imposing upon the Borrower or the Administrative Agent an obligation to withhold any portion of the payments made under the Loan Documents, that payments to the Administrative Agent for the account of such Lender are not subject to withholding (or are subject to a reduced rate of withholding). In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in the following clauses (i), (ii), (iii) and the last sentence of this paragraph (b) and paragraph (c) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
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commercial position of such Lender. Without limiting the foregoing, each Lender which is not a “United States person” within the meaning of Section 7701(a)(30) of the Code (each, a “Foreign Lender”) shall deliver, to the extent it is legally entitled to do so, to the Borrower and the Administrative Agent, on or prior to the date such Foreign Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent): (i) two copies of IRS Form W-8BEN, W-8BEN-E, W-8ECI or W-8EXP, as appropriate (or any successor forms), properly completed and duly executed by such Foreign Lender to establish that such Foreign Lender is not subject to, or is subject to a reduced rate of, deduction or withholding of United States federal income Tax with respect to any payments to such Foreign Lender of principal, interest, fees or other amounts payable under any of the Loan Documents, (ii) if such Foreign Lender is not a “bank” or other Person described in Section 881(c)(3) of the Code, a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) together with two copies of IRS Form W-8BEN or W-8BEN-E (or any successor form) (to the extent such forms document the status of the Foreign Lender as other than a United States Person), properly completed and duly executed by such Foreign Lender, and such other documentation required under the Code and reasonably requested by the Borrower or the Administrative Agent to establish that such Foreign Lender is not subject to deduction or withholding of United States federal income Tax with respect to any payments to such Foreign Lender of interest under any of the Loan Documents, (iii) to the extent such Foreign Lender is not the beneficial owner, two copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS W-9, and/or other certification documents from each beneficial owner, as applicable (provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner), and such other documentation required under the Code and reasonably requested by the Borrower or the Administrative Agent to establish that such Foreign Lender is not subject to deduction or withholding of United States federal income Tax with respect to any payments to such Foreign Lender of interest under any of the Loan Documents or (iv) executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. Each Lender which is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or prior to the date such Lender becomes a Lender under this Agreement (and form time to time thereafter upon reasonable request by the Borrower or the Administrative Agent) executed copies of IRS Form W-9 certifying that such Lender is a United States person and is exempt from U.S. federal backup withholding tax.
(c)    FATCA. If a payment made to a Lender under any Loan Document would be subject to withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such
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Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (c), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(d)    Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within 30 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Loan Parties have not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 8.06(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such amounts were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).
(e)    Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(f)    Defined Terms. For purposes of this Section, the term “Lender” includes any Issuing Lender and the term “applicable law” includes FATCA.
SECTION 2.17.    Increased Costs.
(a)    Change in Law, Etc. In the event that any law, regulation, treaty or directive hereafter enacted, promulgated, approved or issued or any change in any currently existing law, regulation, treaty or directive therein or in the interpretation or application thereof by any Governmental
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Authority charged with the administration thereof or compliance by any Credit Party (or any Person directly or indirectly owning or controlling such Credit Party) with any request or directive, whether or not having the force of law, from any central bank or other Governmental Authority, agency or instrumentality (including, without limitation, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case regardless of the date enacted, adopted or issued) (any such occurrence, a “Change in Law”):
(i)    does or shall subject any Credit Party to any Taxes (other than (A) Indemnified Taxes addressed by Section 2.16, (B) Taxes described in clauses (ii) through (iv) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(ii)    does or shall impose, modify or make applicable any reserve, special deposit, liquidity, compulsory loan, assessment, increased cost or similar requirement against assets held by, or deposits of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Credit Party in respect of any Advance or any Letter of Credit or participations therein (except any such reserve requirement reflected in the definition of Eurocurrency Rate);
and the result of any of the foregoing is to increase the cost to such Credit Party of agreeing to make or of making, funding or maintaining Revolving Advances or of making, issuing, renewing, creating or maintaining any Letter of Credit or participation therein, or its commitment to lend or to issue or create any such Letter of Credit or participate therein, or to reduce any amount receivable hereunder in respect of any Revolving Advance or any Letter of Credit or participation therein, then, in any such case, the Borrower shall pay such Credit Party, upon its demand, any additional amounts necessary to compensate such Credit Party for such additional cost or reduction in such amount receivable which such Credit Party deems to be material as determined by such Credit Party. A statement setting forth the calculations of any additional amounts payable pursuant to the foregoing sentence submitted by a Credit Party to the Borrower shall be conclusive absent manifest error. The obligations of the Borrower under this Section 2.17 shall survive the termination of this Agreement and the Commitments and payment of the Obligations and all other amounts payable under the Loan Documents. Failure to demand compensation pursuant to this Section 2.17 shall not constitute a waiver of such Credit Party’s right to demand such compensation. To the extent that any increased costs of the type referred to in this Section 2.17 are being incurred by a Credit Party and such costs can be eliminated or reduced by the transfer of such Credit Party’s participation or Commitment to another of its branches, and to the extent that such transfer is not inconsistent with such Credit Party’s internal policies of general application and only if, as determined by such Credit Party in its sole discretion, the transfer of such participation or Commitment, as the case may be, would not otherwise materially adversely affect such participation or such Credit Party, the Borrower may request, and such Lender shall use reasonable efforts to effect, such transfer.
(b)    Capital Adequacy. If after the date hereof, any Lender shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy or liquidity requirements, or any Change in Law occurs, or compliance by any Lender (or its Lending Office or any Person directly or indirectly owning or controlling such Lender) with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such
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Lender’s capital as a consequence of its obligations hereunder to a level below that which such Lender could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s policies with respect to capital adequacy and liquidity) by an amount deemed by such Lender to be material, then from time to time, within 10 Business Days after demand by such Lender (with a copy to the Administrative Agent), the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such reduction.
(c)    Notification. Each Lender will promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 2.17. A certificate of any Lender claiming compensation under this Section 2.17 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error.
SECTION 2.18.    Illegality.
Notwithstanding anything herein to the contrary, no Issuing Lender shall at any time be obligated to issue a Letter of Credit or agree to any extension or amendment thereof if such issuance, creation, extension or amendment would conflict with, or cause any Issuing Lender to exceed any limits imposed by, any law or requirements of any applicable Governmental Authority.
SECTION 2.19.    Fees.
(a)    The Borrower agrees to pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the “Commitment Fee”) equal to the product of the Applicable Rate then in effect times the average daily amount by which (i) the Aggregate Commitments in effect from time to time exceed (ii) the Utilization from time to time. The Commitment Fee shall accrue at all times during the Availability Period through and including the last Business Day of March, June, September and December of each year, including at any time during which one or more of the conditions in Article III is not met, and shall be payable in arrears on the third Business Day following the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date, and on the last day of the Availability Period. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, for purposes of calculating the LC Exposure in connection with determining the applicable Commitment Fee, the parties hereto acknowledge and agree that to the extent any Escalating LC is then issued and outstanding, the applicable Commitment Fee shall accrue at 150% of the Commitment Fee which would be applicable solely by reference to the Applicable Rate multiplied by the difference between (x) the maximum amount (after giving effect to all possible increases) available to be drawn thereunder and (y) the amount then available to be drawn under such Escalating LC.
(b)    The Borrower agrees to pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a letter of credit fee (the “Letter of Credit Fee”), calculated daily with respect to such Lender’s participations in Letters of Credit issued hereunder, equal to the product of (i) the Applicable Rate then in effect times (ii) the actual daily maximum face or stated amount of each Letter of Credit outstanding (in the case of any Escalating LC, such amount shall equal the amount then available to be drawn under such Escalating LC). Letter of Credit Fees payable pursuant to this paragraph (b) shall accrue through and including the last Business Day of March, June, September and December of each year and be payable in arrears on the third Business Day following the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which all
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Commitments terminate and any such fees accruing after the date on which all Commitments terminate shall be payable on demand. The sum of each daily calculation, if in a currency other than Dollars, shall be converted to the Dollar Equivalent thereof on the date the applicable payment is due.
(c)    The Borrower agrees to pay directly to each Issuing Lender, for its own account, a fronting fee with respect to each Letter of Credit issued by such Issuing Lender, at the rate per annum, and computed on the basis, separately agreed upon between the Borrower and such Issuing Lender, which fronting fee will be paid on a quarterly basis in arrears. Such fronting fee payable to any Issuing Lender shall accrue through and including the last Business Day of March, June, September and December of each year and be payable in arrears on the third Business Day following the last Business Day of March, June, September and December (or such other day as specified by the applicable Issuing Lender) of each year, commencing on the first such date to occur after the Closing Date; provided that all such fees shall be payable on the date on which all Commitments terminate and any such fees accruing after the date on which all Commitments terminate shall be payable on demand. In addition, the Borrower shall pay directly to each Issuing Lender, for its own account, such Issuing Lender’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder in the amounts and at the times separately agreed upon.
(d)    In addition to any of the foregoing fees, the Borrower agrees to pay to the Administrative Agent, the Joint Lead Arrangers and their Affiliates such other fees in the amounts and at the times separately agreed upon.
(e)    All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent (or to the applicable Issuing Lender, in the case of fees payable to it) for distribution, in the case of Commitment Fees and Letter of Credit Fees, to the Lenders. Fees paid shall not be refundable under any circumstances. Any fee not due on a specific date shall be due on demand.
SECTION 2.20.    Evidence of Debt.
(a)    Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Revolving Advance made by such Lender to the Borrower, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(b)    The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Revolving Advance made to the Borrower hereunder, the Interest Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(c)    The entries made in the accounts maintained pursuant to paragraph (a) or (b) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Revolving Advances in accordance with the terms of this Agreement.
(d)    Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Revolving Note,
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which shall evidence such Lender’s Revolving Advances in addition to such accounts maintained pursuant to paragraph (a) or (b) of this Section. Each Lender may attach schedules to its Revolving Note and endorse thereon the date, Interest Type (if applicable), amount and maturity of its Revolving Advances and payments with respect thereto.
SECTION 2.21.    Use of Proceeds.
The proceeds of the Revolving Advances (other than any Revolving Advances made pursuant to Section 2.09(a)) shall be available (and the Borrower agrees that it shall use such proceeds) to provide working capital for the Borrower and its Subsidiaries and, subject to the provisions of this Agreement and the other Loan Documents, for other general corporate purposes of the Borrower and its Subsidiaries. No portion of the proceeds of any borrowing under this Agreement shall be used by the Borrower or any of its Subsidiaries in any manner that might cause the borrowing or the application of such proceeds to violate Regulation U or any other regulation of the FRB or to violate the Securities Exchange Act of 1934, as amended from time to time, and any successor statute, in each case as in effect on the date or dates of such borrowing and such use of proceeds.
SECTION 2.22.    Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)    if any LC Exposure exists at the time a Lender is a Defaulting Lender, all or any part of such Defaulting Lender’s LC Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated (x) without regard to such Defaulting Lender’s Commitment and (y) in accordance with the Commitments in respect of the applicable type of Letter of Credit) but only to the extent that (i) the conditions set forth in Section 3.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (ii) such reallocation does not cause any Non-Defaulting Lender’s Applicable Percentage (calculated (x) without regard to such Defaulting Lender’s Commitment and (y) in accordance with the Commitments in respect of the applicable type of Letter of Credit) of the Utilization to exceed such Non-Defaulting Lender’s Commitment in respect of the applicable type of Letter of Credit. Subject to Section 8.22, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
(b)    if the reallocation described in clause (a) above cannot, or can only partially, be effected, the Borrower shall within two (2) Business Days following notice by the Administrative Agent cash collateralize or (to the extent permitted by Section 2.12(c)) provide Permitted Cover for such Defaulting Lender’s LC Exposure in accordance with the procedures set forth in Section 2.12 for so long as such LC Exposure is outstanding and to the extent such LC Exposure is not otherwise reallocated pursuant to clause (a) above;
(c)    the Commitment and LC Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.05), provided that any waiver,
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amendment or modification extending or increasing the Commitment of such Defaulting Lender or reducing the principal of any LC Disbursement made by such Defaulting Lender shall require the consent of such Defaulting Lender;
(d)    (i) if such Defaulting Lender’s LC Exposure is reallocated pursuant to the foregoing clause (a), the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any Letter of Credit Fees otherwise payable to such Defaulting Lender pursuant to Section 2.19(b) with respect to such Defaulting Lender’s LC Exposure that has been reallocated to such Non-Defaulting Lender and (y) not be required to pay the Commitment Fees to such Defaulting Lender pursuant to Section 2.19(a) with respect to such reallocated portion of such Defaulting Lender’s LC Exposure, (ii) if the Borrower cash collateralizes or provides (to the extent permitted by Section 2.12(c)) Permitted Cover for any portion of such Defaulting Lender’s LC Exposure pursuant to the foregoing clause (b), the Borrower shall not be required to pay the Letter of Credit Fees or Commitment Fees to such Defaulting Lender pursuant to Sections 2.19(a) and (b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized or covered by Permitted Cover and (iii) if any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to this Section 2.22, the Borrower shall pay to the applicable Issuing Lenders the amount of any such Letter of Credit Fees otherwise payable to such Defaulting Lender pursuant to Section 2.19(b); and
(e)    no Issuing Lender shall be required to issue, amend or increase any Letter of Credit unless it is satisfied that cash collateral or (to the extent permitted by Section 2.12(c)) Permitted Cover will be provided by the Borrower in accordance with the foregoing clause (b).
If the Borrower, the Administrative Agent and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Advances of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Advances and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments then in effect (without giving effect to Section 2.22(a)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
SECTION 2.23.    Replacement of Lenders.
If any Lender requests compensation under Section 2.17, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, or if any Lender is a Defaulting Lender, or if any Lender does not consent to a proposed amendment, waiver, consent or modification with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate (in accordance with and subject to the restrictions contained in, and consents required by, Section 8.06), without recourse, all of their interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
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(a)    the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 8.06(b);
(b)    such Lender shall have received payment of an amount equal to the aggregate outstanding amount of its LC Disbursements and/or Revolving Advances, as the case may be, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding LC Disbursements and/or Revolving Advances, as the case may be, and accrued interest and fees) or the Borrower (in the case of all other amounts);
(c)    in the case of any such assignment resulting from a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments thereafter; and
(d)    such assignment does not conflict with applicable laws.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Each party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption Agreement executed by the Borrower, the Administrative Agent and the assignee, and (ii) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.
SECTION 2.24.    Incremental Commitments.
The Borrower may at any time, and from time to time, by notice to the Administrative Agent, request an increase in the Aggregate Commitments provided for under this Agreement (each such increase, an “Incremental Commitment Increase”) or enter into one or more tranches of term loans (each an “Incremental Term Loan”) so long as, after giving effect thereto, the aggregate amount of all such Incremental Commitment Increases and all such Incremental Term Loans, taken together, does not exceed $500,000,000; provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,150,000,000 less any amount of Incremental Term Loans effected pursuant to this Section 2.24, (ii) the maximum Revolving Facility Sublimit shall not at any given time be in excess of $1,250,000,000 (it being understood and agreed that the Revolving Facility Sublimit shall be increased on a dollar-for-dollar basis concurrently with any Incremental Commitment Increase effected under and in accordance with this Section 2.24 (and shall not be increased concurrently with any Incremental Term Loan effected under and in accordance with this Section 2.24), subject at all times to the foregoing $1,250,000,000 absolute limitation), (iii) any such Incremental Commitment Increase or Incremental Term Loan shall be in a minimum amount of $25,000,000 and any whole multiple of $10,000,000 in excess thereof and (iv) each Incremental Commitment Increase will be treated as a Commitment under this Agreement; provided, further, that (A) no Lender shall be required to provide all or any portion of such Incremental Commitment Increase or Incremental Term Loan and nothing contained in this Section 2.24 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase
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its Commitment hereunder, or provide Incremental Term Loans, at any time and (B) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase or Incremental Term Loan on the Incremental Commitment Increase Effective Date or Incremental Term Loan Effective Date, as applicable. To achieve the full amount of a requested increase or incremental term loans, as applicable, the Borrower may also invite additional banks or other financial institutions (each an “Augmenting Lender”) to become Incremental Increase Lenders in respect of an Incremental Commitment Increase pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent (each such joinder agreement, an “Incremental Joinder Agreement”) executed by the Borrower, each Incremental Increase Lender (including any existing Lender and any Augmenting Lender) participating in such increase and the Administrative Agent or to become Incremental Term Loan Lenders in respect of an Incremental Term Loan pursuant to an amendment or restatement in form and substance satisfactory to the Administrative Agent (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term Loan Lender (including any existing Lender and any Augmenting Lender) participating in such tranche of incremental term loans and the Administrative Agent; provided that each Incremental Increase Lender and each Incremental Term Loan Lender (including any Augmenting Lender) shall be subject to the approval of the Administrative Agent and each Issuing Lender (such approval in each case not to be unreasonably withheld or delayed) and the approval of the Borrower, but not the approval of any other Lender. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitment Increase Effective Date”) and the final allocation of such increase, and if incremental term loans are entered into in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such incremental term loans. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date or such incremental term loans and the Incremental Term Loan Effective Date, as applicable.
On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit.
Notwithstanding anything to the contrary set forth herein, (i) the terms of each Incremental Commitment Increase shall be identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the Borrower, the Administrative Agent and the applicable Incremental Increase Lenders and (ii) the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Advances, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Advances; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only
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during periods after the Maturity Date and (2) the Applicable Rate and any other pricing terms (including upfront fees) shall be determined by the Borrower, the Administrative Agent and the applicable Incremental Term Loan Lenders.
As a condition precedent to any such increase or incremental term loans, the Borrower shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the Borrower (i) certifying that such Incremental Commitment Increase and/or Incremental Term Loan and the performance of the Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date and/or the Incremental Term Loan Effective Date, as applicable, before and after giving effect to such Incremental Commitment Increase and/or such Incremental Term Loans, (A) the representations and warranties contained in Article IV and the other Loan Documents are true and correct, (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing.
Solely with respect to any Incremental Commitment Increase and any Incremental Term Loans, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase or any Incremental Term Loans, the Administrative Agent and the Borrower may, without the consent of any Lenders, effect such amendments (including, without limitation, an Incremental Term Loan Amendment) to this Agreement and any other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.24.
SECTION 2.25.    Extension of Maturity Date.
(a)    Requests for Extension. The Borrower may, by notice to the Administrative Agent (who shall promptly notify the Lenders) not earlier than 60 days and not later than 30 days prior to each anniversary of the date of this Agreement (each such date, an “Extension Date”), request that each Lender extend such Lender’s Maturity Date to the date that is one year after the Maturity Date then in effect for such Lender (the “Existing Maturity Date”).
(b)    Lender Elections to Extend. Each Lender, acting in its sole and individual discretion, shall, by notice to the Administrative Agent given not later than the date that is 15 days after the date on which the Administrative Agent received the Borrower’s extension request (the “Lender Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such extension (each Lender that determines to so extend its Maturity Date, an “Extending Lender”). Each Lender that determines not to so extend its Maturity Date (a “Non-Extending Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but in any event no later than the Lender Notice Date), and any Lender that does not so advise the Administrative Agent on or before the Lender Notice Date shall be deemed to be a Non-Extending Lender. The election of any Lender to agree to such extension shall not obligate any other Lender to so agree, and it is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by the Borrower for extension of the Maturity Date.
(c)    Notification by Administrative Agent. The Administrative Agent shall notify the Borrower of each Lender’s determination under this Section no later than the date that is 15 days prior to
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the applicable Extension Date (or, if such date is not a Business Day, on the next preceding Business Day).
(d)    Additional Commitment Lenders. The Borrower shall have the right, but shall not be obligated, on or before the applicable Maturity Date for any Non-Extending Lender to replace such Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more banks, financial institutions or other entities (each, an “Additional Commitment Lender”) approved by the Administrative Agent in accordance with the procedures provided in Section 2.24, each of which Additional Commitment Lenders shall have entered into an Assignment and Assumption Agreement (in accordance with and subject to the restrictions contained in Section 8.06, with the Borrower or replacement Lender obligated to pay any applicable processing or recordation fee) with such Non-Extending Lender, pursuant to which such Additional Commitment Lenders shall, effective on or before the applicable Maturity Date for such Non-Extending Lender, assume a Commitment (and, if any such Additional Commitment Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment hereunder on such date). The Administrative Agent may effect such amendments to this Agreement as are reasonably necessary to provide for any such extensions with the consent of the Borrower but without the consent of any other Lenders.
(e)    Minimum Extension Requirement. If (and only if) the total of the Commitments in respect of the Revolving Facility Sublimit of the Lenders that have agreed to extend their Maturity Date and the additional Commitments of the Additional Commitment Lenders is more than 50% of the aggregate amount of the Revolving Facility Sublimit in effect immediately prior to the applicable Extension Date, then, effective as of the applicable Extension Date, the Maturity Date of each Extending Lender and of each Additional Commitment Lender shall be extended to the date that is one year after the Existing Maturity Date (except that, if such date is not a Business Day, such Maturity Date as so extended shall be the next preceding Business Day) and each Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement and shall be bound by the provisions of this Agreement as a Lender hereunder and shall have the obligations of a Lender hereunder.
(f)    Conditions to Effectiveness of Extension. Notwithstanding the foregoing, (x) no more than two (2) extensions of the Maturity Date shall be permitted hereunder and (y) any extension of any Maturity Date pursuant to this Section 2.25 shall not be effective with respect to any Lender unless:
(i)    no Default shall have occurred and be continuing on the applicable Extension Date and immediately after giving effect thereto;
(ii)    all representations and warranties of the Borrower contained in Article IV of this Agreement shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the applicable Extension Date and after giving effect thereto, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(iii)    no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing on and as of the applicable Extension Date and after giving effect thereto which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents; and
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(iv)    the Administrative Agent shall have received a certificate from the Borrower signed by a senior vice president, the chief financial officer or the treasurer of the Borrower (A) certifying the accuracy of the foregoing clauses (i), (ii) and (iii) and (B) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such extension.
(g)    Maturity Date for Non-Extending Lenders. On the Maturity Date of each Non-Extending Lender, (i) the Commitment of each Non-Extending Lender shall automatically terminate and (ii) the Borrower shall repay such Non-Extending Lender in accordance with Section 2.03 (and shall pay to such Non-Extending Lender all of the other Obligations owing to it under this Agreement) and after giving effect thereto shall prepay any Revolving Advances outstanding on such date (and pay any additional amounts required pursuant to Section 8.03(c)) to the extent necessary to keep outstanding Revolving Advances ratable with any revised Applicable Percentages of the respective Lenders effective as of such date, and the Administrative Agent shall administer any necessary reallocation of the outstanding Revolving Advances and LC Exposures (without regard to any minimum borrowing, pro rata borrowing and/or pro rata payment requirements contained elsewhere in this Agreement).
(h)    Conflicting Provisions. This Section shall supersede any provisions in Section 2.14 or Section 8.05 to the contrary.
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ARTICLE III

CONDITIONS PRECEDENT
SECTION 3.01.    Closing Date.
The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent:
(a)    Receipt of Documentation. The Administrative Agent shall have received:
(i)    counterparts of this Agreement signed by the Borrower, the Administrative Agent, each Issuing Lender as of the Closing Date and each Lender (which, subject to Section 8.09, may include any Electronic Signatures transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page);
(ii)    a certificate, dated the Closing Date, of the Secretary, Assistant Secretary or member of the management board of the Borrower, substantially in the form of Exhibit C: (A) attaching a true and complete copy of the resolutions of its Board of Directors authorizing the execution and delivery of this Agreement and the other Loan Documents by the Borrower and the performance of the Borrower’s obligations thereunder, and of all other documents evidencing other necessary action (in form and substance reasonably satisfactory to the Administrative Agent) taken by it to authorize the Loan Documents and the transactions contemplated thereby, (B) attaching a true and complete copy of its certificate of incorporation and bylaws, (C) certifying that said certificate of incorporation and bylaws are true and complete copies thereof, are in full force and effect and have not been amended or modified, and (D) setting forth the incumbency of its officer or officers who may sign the Loan Documents and request Revolving Advances and Letters of Credit, including therein a signature specimen of such officer or officers;
(iii)    a certificate of good standing for the Borrower from the Secretary of State for the State of Delaware and dated a recent date prior to the Closing Date; and
(iv)    a certificate, dated the Closing Date, signed by a senior vice president, the chief financial officer or the treasurer of the Borrower certifying (A) that, as of the Closing Date, the conditions set forth in Sections 3.02(b)(i), (ii) and (iii) have been satisfied (B) that, as of the Closing Date, there exists no Material Adverse Change and (C) the current Ratings.
(b)    Opinions. The Administrative Agent shall have received opinions of (i) Gibson, Dunn & Crutcher LLP, special counsel for the Borrower, and (ii) Eric P. Helm, internal counsel for the Borrower, in each case addressed to the Credit Parties and covering such matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request, dated the Closing Date.
(c)    Termination of Existing $1.8B Credit Agreement. The Administrative Agent shall have received evidence satisfactory to it that the credit facilities evidenced by the Existing $1.8B Credit Agreement shall have been terminated and cancelled and all indebtedness thereunder shall have been fully repaid (except to the extent being so repaid with the initial Revolving Advances).
(d)    Fees and Expenses Due to the Credit Parties. All fees and expenses due and payable to the Administrative Agent, the Joint Lead Arrangers and any other Credit Party shall have been paid.
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(e)    Fees and Expenses of Special Counsel. The fees and expenses of Latham & Watkins LLP, special counsel to the Administrative Agent, in connection with the preparation, negotiation and closing of the Loan Documents shall have been paid.
(f)    KYC and BOC Materials. (i) The Administrative Agent shall have received, at least five (5) days prior to the Closing Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrower at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (f) shall be deemed to be satisfied).
SECTION 3.02.    Conditions to All Revolving Advances and Letters of Credit.
The following conditions must be satisfied prior to the making of each Revolving Advance and the issuance, amendment, renewal or extension of each Letter of Credit:
(a)    Notice; Application. In the case of the making of a Revolving Advance, the Administrative Agent shall have received a Notice of Revolving Borrowing. In the case of the issuance of a Letter of Credit, the Administrative Agent and the applicable Issuing Lender shall have received: (i) the notice required by Section 2.07(a) hereof; and (ii) an Application in the form required by the applicable Issuing Lender duly completed by the Borrower.
(b)    Representations and Warranties; No Default. At the time of and immediately after giving effect to the applicable Revolving Borrowing or the issuance of the applicable Letter of Credit: (i) no Default shall have occurred and be continuing, (ii) all representations and warranties of the Borrower contained in Article IV of this Agreement shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects), and (iii) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents.
(c)    Commitments and LC Exposure. Both before and immediately after giving effect to the applicable Revolving Borrowing or the issuance of the applicable Letter of Credit, (i) the Dollar Equivalent of the total LC Exposure plus the outstanding principal amount of all Revolving Advances shall not exceed the Aggregate Commitments and (ii) the Dollar Equivalent of the total LC Exposure in respect of Financial Letters of Credit plus the outstanding principal amount of all Revolving Advances shall not exceed the Revolving Facility Sublimit.
Each making of a Revolving Advance and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a), (b) and (c) of this Section.
ARTICLE IV

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REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01.    Corporate Existence and Power.
Each Loan Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all corporate or other organizational powers and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.
SECTION 4.02.    Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Borrower of this Agreement and by each Loan Party of the other Loan Documents (i) are within the Borrower’s and each other Loan Party’s corporate or other organizational powers, (ii) have been duly authorized by all necessary corporate or other organizational actions and, if required, actions by equity holders, (iii) require no action by or in respect of, or filing with, any governmental body, agency or official, (iv) do not contravene or constitute a default under any provision of applicable law or regulation, or of the certificate of incorporation, bylaws or other organizational documents of the Borrower or such Loan Party, and (v) do not contravene or constitute a default under, or result in the creation of any Lien under, any material agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or such Loan Party, other than Liens created under the Loan Documents.
SECTION 4.03.    Binding Effect.
The Loan Documents to which each Loan Party is a party have been duly executed and delivered by such Loan Party and constitute a valid and binding agreement of such Loan Party, enforceable in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally, (ii) general principles of equity, regardless of whether considered in a proceeding in equity or at law and (iii) requirements of reasonableness, good faith and fair dealing
SECTION 4.04.    Financial Information.
(a)    Balance Sheet. The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 2019 and the related consolidated statements of earnings and of cash flow for the fiscal year then ended, reported on by Ernst & Young LLP and set forth in the Borrower’s 2019 Form 10K, a copy of which has been made available to each of the Lenders, fairly present, in conformity with GAAP, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and changes in financial position for such fiscal year.
(b)    Material Adverse Change. There exists no Material Adverse Change.
SECTION 4.05.    Litigation.
There is no action, suit or proceeding pending or to the knowledge of the Borrower threatened against or affecting the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official (i) which could reasonably be expected to have a Material Adverse
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Effect, or (ii) which purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document.
SECTION 4.06.    Compliance with ERISA.
The Borrower and its Subsidiaries have fulfilled their obligations under the minimum funding standards of ERISA with respect to each Plan and are in compliance in all material respects with the currently applicable provisions of ERISA, noncompliance with which could reasonably be expected to have a Material Adverse Effect.
SECTION 4.07.    Taxes.
The Borrower and its Subsidiaries have filed all United States Federal income Tax returns and all other material Tax returns which are required to be filed by them and have paid all Taxes due other than any such Taxes being currently contested in good faith and for which adequate reserves are being maintained in accordance with GAAP and other than where the failure to so file or pay would not have a Material Adverse Effect. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of Taxes are adequate in accordance with GAAP.
SECTION 4.08.    Material Subsidiaries.
Each of the Borrower’s Material Subsidiaries is duly organized or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, and has all requisite power and authority and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.
SECTION 4.09.    Not an Investment Company; Margin Regulations.
No Loan Party is an “investment company” within the meaning of, or subject to regulation as an “investment company” under, the Investment Company Act of 1940, as amended. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 5.08 or Section 5.09 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Debt and within the scope of Section 6.01(e) will be margin stock.
SECTION 4.10.    Business of the Borrower; Use of Proceeds.
No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U), and no Revolving Advance or LC Disbursement will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. To the extent permitted by Section 2.07(b), the purpose of (i) each Financial Letter of Credit shall be to support the obligations of the Borrower or any of the Borrower’s Subsidiaries as a financial guarantee type letter of credit or to back bank guarantees issued by any Issuing Lender or its correspondent bank to support such Financial Letters of Credit and (ii) each Performance Letter of Credit shall be to support, or to back bank guarantees issued by other banks to support, the Borrower’s and the Related Entities’ performance under specific project engineering, procurement, construction, maintenance and related activities and/or contracts. Neither the issuance of any Letter of Credit or the making of any Revolving Advance nor the payment of any Obligation will violate any applicable law or regulation.
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SECTION 4.11.    No Misleading Statements.
No written information, exhibit or report furnished by or at the direction of the Borrower or any Subsidiary to the Administrative Agent or any Lender in connection with this Agreement, when taken as a whole, contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not materially misleading. As of the Closing Date, to the best knowledge of the Borrower, the information included in the Beneficial Ownership Certification provided on or prior to the Closing Date to any Lender in connection with this Agreement is true and correct in all respects.
SECTION 4.12.    Environmental Matters.
In the ordinary course of its business, the Borrower conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of the Borrower and its Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs (including, without limitation, any capital or operating expenditures required for cleanup or closure of properties now or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat and any actual or potential liabilities to third parties, including employees, and any related costs and expenses). On the basis of this review, the Borrower has reasonably concluded that Environmental Laws are not likely to have a Material Adverse Effect.
SECTION 4.13.    No Default.
No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
SECTION 4.14.    Sanctions; AML Laws and Anti-Corruption Laws.
(a)    Neither the Borrower nor any of its Subsidiaries or officers, or, to the knowledge of the Borrower, any director, Affiliate, agent or employee of it, is knowingly engaged in any activity or conduct which would violate any applicable anti-bribery, anti-corruption or anti-money laundering laws, regulations or rules in any applicable jurisdiction in any material respect and the Borrower has instituted and maintains policies and procedures designed to ensure compliance with such laws, regulations and rules.
(b)    None of the Borrower, any of its Subsidiaries or officers, or, to the knowledge of the Borrower, any director, or employee of the Borrower or any of its Subsidiaries is a Person, that is: (i) (A) any Person listed in any Sanctions-related list of designated Persons maintained by U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union or Her Majesty’s Treasury, or (B) any Person owned or controlled by any such Person or Persons described in clause (A) (a “Sanctioned Person”) or (ii) in the case of the Borrower or any Subsidiary, directors and officers, located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory (a “Sanctioned Country”).
SECTION 4.15.    Liens
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.
There are no Liens on any of the real or personal properties of the Borrower or any Subsidiary except for Liens permitted by Section 5.08.
SECTION 4.16.    Solvency
.
The Borrower and its Subsidiaries taken as a whole are Solvent as of the Closing Date.
SECTION 4.17.    Security Interest in Collateral
.
During any Collateral Period, the Collateral Documents, upon execution and delivery thereof by the parties thereto, will create in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid and enforceable security interest in the Collateral covered thereby and (i) when the Collateral constituting certificated securities (as defined in the UCC) is delivered to the Administrative Agent, together with instruments of transfer duly endorsed in blank, the Liens under the Collateral Documents will constitute a fully perfected security interest in all right, title and interest of the respective Loan Parties thereunder in such Collateral, prior and superior in right to any other Person, except for Liens permitted by Section 5.08 and (ii) when financing statements in appropriate form are filed in the applicable filing offices, the security interest created under the Collateral Documents will constitute a fully perfected security interest in all right, title and interest of the respective Loan Parties in the remaining Collateral to the extent perfection can be obtained by filing UCC financing statements, prior and superior to the rights of any other Person, except for Liens permitted by Section 5.08.
SECTION 4.18.    Properties
.
(a)    Except for Liens permitted pursuant to Section 5.08, each of the Borrower and its Subsidiaries has good title to, or (to the knowledge of the Borrower or any Subsidiary) valid leasehold interests in, all its real and personal property (other than intellectual property, which is subject to Section 4.18(b)) material to its business, except as could not reasonably be expected to result in a Material Adverse Effect.
(b)    Each of the Borrower and its Subsidiaries owns, or is licensed to use (subject to the knowledge-qualified infringement representation in this Section 4.18(b)), all trademarks, trade names, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries, to any Loan Party’s knowledge, does not infringe upon the rights of any other Person, except for any such infringements, or ownership or license issues, that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.19.    Insurance
.
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The Borrower maintains, and has caused each Material Subsidiary to maintain, with financially sound and reputable insurance companies, insurance on all of their material real and personal property in such amounts, subject to such deductibles and self-insurance retentions and covering such properties and risks as are adequate and customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.
SECTION 4.20.    Affected Financial Institution
.
No Loan Party is an Affected Financial Institution.
ARTICLE V

COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment or any LC Exposure or any other Obligation hereunder remains outstanding:
SECTION 5.01.    Information.
The Borrower will deliver to each of the Lenders:
(a)    Annual Financial Statements. As soon as available and in any event within one hundred (100) days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of earnings and cash flow for such fiscal year, as set forth in the Borrower's annual report for the fiscal year then ended as filed with the SEC on form 10-K, setting forth in each case in comparative form the figures for the previous fiscal year, audited and accompanied by a report and opinion of Ernst & Young LLP or other independent public accountants of nationally recognized standing, which report and opinion shall be prepared in a manner acceptable to the SEC and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;
(b)    Quarterly Financial Statements. As soon as available and in any event within fifty-five (55) days after the end of each of the first three (3) quarters of each fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and the related consolidated statements of earnings and cash flow for such quarter and for the portion of the Borrower’s fiscal year ended at the end of such quarter, as set forth in the Borrower’s quarterly report for the fiscal quarter then ended as filed with the SEC on Form 10Q, all certified by the chief financial officer or the chief accounting officer of the Borrower that they are (i) complete and fairly present the financial condition of the Borrower and its Consolidated Subsidiaries as at the dates indicated and the results of their operations and changes in their cash flow for the periods indicated; (ii) disclose all liabilities of the Borrower and its Consolidated Subsidiaries that are required to be reflected or reserved against under GAAP, whether liquidated or unliquidated, fixed or contingent; and (iii) have been prepared in accordance with GAAP (subject to normal yearend adjustments);
(c)    Certificate of Chief Financial Officer. Simultaneously with the delivery of each set of financial statements referred to in paragraphs (a) and (b) above, a certificate of the chief financial officer, the treasurer or the chief accounting officer of the Borrower (i) setting forth in reasonable detail the calculations required to establish whether the Borrower was in compliance with the requirements of
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Section 5.07 on the date of such financial statements (it being understood and agreed that, for the purposes of such calculations in respect of the covenant set forth in Section 5.07(c), the Borrower shall only be required to show calculations demonstrating compliance with such covenant as of the last day of the applicable fiscal quarter or fiscal year covered by such financial statements), (ii) stating whether any Default exists on the date of such certificate and, if any Default then exists, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto, and (iii) describing the parties, subject matter, and nature and amount of relief granted to the prevailing party in any litigation or proceeding in which a final judgment or order which is either for the payment of money in an amount equal to or exceeding $25,000,000 (or the Exchange Equivalent thereof) or which grants any material nonmonetary relief to the prevailing party therein was rendered against the Borrower or any Subsidiary (whether or not satisfied or stayed) during the most recently ended fiscal quarter;
(d)    Notice of Default. Forthwith upon knowledge of the occurrence of any Default, a certificate of the chief financial officer, the treasurer or the chief accounting officer of the Borrower setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto;
(e)    Other Financial Statements. Promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so mailed;
(f)    SEC Filings. Promptly upon the filing thereof, copies of (i) all registration statements (other than the exhibits thereto and any registration statements on Form S8 or its equivalent) and reports on Forms 10K, 10Q and 8K (or their equivalents) which the Borrower or any Subsidiary shall have filed with the SEC, and (ii) all other reports which the Borrower or any Subsidiary shall have filed with the SEC or any national securities exchange, unless the Borrower or such Subsidiary is not permitted to provide copies thereof to the Lenders pursuant to applicable laws or regulations;
(g)    ERISA Reportable Events. If and when any member of the Controlled Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability in excess of $20,000,000 (or the Exchange Equivalent thereof) under Title IV of ERISA, a copy of such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any Plan, a copy of such notice;
(h)    Notice of Rating Change. Promptly upon the Borrower’s obtaining knowledge thereof, notice of any withdrawal or change or proposed withdrawal or change in any Ratings;
(i)    Notice of Changes in Accounting Policies. Promptly following any such change, notice of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary;
(j)    Change in BOC Information. Promptly following any such change, notice of any change in the information provided in the Beneficial Ownership Certification delivered to such Lender that would result in a change to the list of beneficial owners identified in such certification;
(k)    Change in Minimum Liquidity Amount. To the extent that the Borrower wishes to confirm a change in the Minimum Liquidity Amount, the Borrower shall deliver to the Administrative
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Agent a certificate of a senior vice president, the chief financial officer or the treasurer of the Borrower, in form reasonably satisfactory to the Administrative Agent, providing a reasonably detailed calculation of the Minimum Liquidity Amount as of the date of such certificate (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry);
(l)    Aggregate Amount of Secured Bilateral LC Obligations. Promptly following such change, notice of any change in the aggregate amount of Secured Bilateral LC Obligations (it being understood and agreed that in no event shall the Dollar Equivalent of the aggregate amount of all Secured Bilateral Obligations exceed $250,000,000); and
(m)    Other Financial Information. From time to time (x) such additional information regarding the financial position or business of the Borrower or any Subsidiary as the Administrative Agent, at the reasonable request of any Lender, may request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation.
Documents or information required to be delivered pursuant to Section 5.01(a), (b), (e), (f), (i) or (m) (to the extent any such documents or information are included in materials otherwise filed with the SEC) may be delivered electronically (including, without limitation, via Debt Domain or any similar platform) and if so delivered, shall be deemed to have been delivered on the date on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on the Borrower’s signature page hereto; provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender, and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
SECTION 5.02.    Payment of Obligations.
The Borrower will pay and discharge, and will cause each Subsidiary to pay and discharge, at or before maturity, all their respective material obligations and liabilities, except where the same may be contested in good faith by appropriate proceedings or where the failure to so pay and discharge would not have a Material Adverse Effect, and will maintain, and will cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of any of the same.
SECTION 5.03.    Maintenance of Property; Insurance.
(a)    Maintenance of Property. The Borrower will keep, and will cause each Material Subsidiary to keep, all material items of property useful and necessary in its business in good working order and condition, ordinary wear and tear and damage from casualty excepted.
(b)    Insurance. The Borrower will maintain, and will cause each Subsidiary to maintain, with financially sound and reputable insurance companies, insurance on all their real and personal property in at least such amounts and against at least such risks as are usually insured against by
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companies of established repute engaged in the same or similar business as the Borrower or such Subsidiary and owning similar assets (“Industry Standards”), except where such risks are covered by self insurance so long as the amount of such self insurance and the risks covered thereby are consistent with Industry Standards. The Borrower will promptly furnish to the Lenders such information as to insurance carried or self insurance maintained as may be reasonably requested in writing by the Administrative Agent on behalf of any Lender. During any Collateral Period, the Borrower shall deliver to the Administrative Agent endorsements (x) to all “All Risk” physical damage insurance policies on all of the tangible personal property and assets of the Borrower and the Subsidiary Guarantors naming the Administrative Agent as lender loss payee, and (y) to all general liability and other liability policies of the Borrower and the Subsidiary Guarantors naming the Administrative Agent an additional insured. During any Collateral Period, in the event the Borrower or any of its Subsidiaries at any time or times hereafter shall fail to obtain or maintain any of the policies or insurance required herein or to pay any premium in whole or in part then due and payable relating thereto, then the Administrative Agent, without waiving or releasing any obligations or resulting Default hereunder, may at any time or times thereafter (but shall be under no obligation to do so) obtain and maintain such policies of insurance and pay such premiums and take any other action with respect thereto which the Administrative Agent reasonably deems advisable, it being agreed that the Administrative Agent shall reasonably promptly notify the Borrower of any such action. All sums so disbursed by the Administrative Agent shall constitute part of the Obligations, payable as provided in this Agreement.
SECTION 5.04.    Conduct of Business and Maintenance of Existence.
The Borrower will preserve, renew and keep in full force and effect, and will cause each Material Subsidiary to preserve, renew and keep in full force and effect, its respective legal existence and good standing under the laws of the jurisdiction of its organization and its respective rights, privileges and franchises necessary or desirable in the normal conduct of business; provided that nothing in this Section 5.04 shall prevent any Subsidiary from (i) merging into, consolidating with, or selling, leasing or otherwise transferring all of its assets to the Borrower or another Subsidiary, or (ii) abandoning or disposing of any of its assets or abandoning or terminating any right or franchise if (A) disposition or termination does not violate any other provision of this Agreement and (B) all such abandonments, dispositions and terminations do not in the aggregate cause a Material Adverse Effect.
SECTION 5.05.    Compliance with Laws.
The Borrower will comply, and cause each Subsidiary to comply, in all material respects with all applicable laws, ordinances, rules, regulations, orders, and requirements of governmental authorities (including, without limitation, ERISA, Environmental Laws and the rules and regulations thereunder), except where failure to so comply would not have a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Sanctions, anti-corruption laws and applicable anti-money laundering laws.
SECTION 5.06.    Keeping of Records; Inspection of Property, Books and Records.
The Borrower will keep, and will cause each Subsidiary to keep, proper books of record and account in accordance with GAAP consistently applied; and will permit, and will cause each Subsidiary to permit, the Administrative Agent, any of the Lenders or any agents or representatives of the Administrative Agent or any Lender, at the Administrative Agent’s or such Lender’s expense, to visit and inspect any of its respective properties, to examine any of its respective books and records and (subject to
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Section 8.10) to discuss its respective affairs, finances and accounts with any of its respective officers, directors, employees and independent public accountants, all at such times and as often as may reasonably be desired, in each case upon reasonable notice and during normal business hours. Notwithstanding anything to the contrary in this Section 5.06, none of the Borrower or any of its Subsidiaries will be required to disclose, permit the inspection, examination or discussion of, any document, information or other matter in respect of which such disclosure is then prohibited by law or any agreement binding on the Borrower or any of its Subsidiaries.
SECTION 5.07.    Financial Covenants.
(a)    Debt to Capitalization Ratio. The ratio of (i) Consolidated Debt to (ii) the sum of (x) Consolidated Debt plus (y) Consolidated Shareholders’ Equity will not exceed 0.65 to 1.00 as of the last day of any fiscal quarter of the Borrower.
(b)    Total Debt. Notwithstanding anything to the contrary set forth in (or what may be permitted by) Section 5.15, the total Debt of all Consolidated Subsidiaries (other than Subsidiaries that then constitute Subsidiary Guarantors) of the Borrower, excluding the Debt, if any, owed by such Consolidated Subsidiaries to the Borrower or another Consolidated Subsidiary of the Borrower, will at no time exceed an amount equal to the greater of (x) $750,000,000 and (y) €750,000,000.
(c)    Minimum Liquidity. The Borrower shall maintain at all times Liquidity in an amount equal to or greater than the Minimum Liquidity Amount at such time.
SECTION 5.08.    Liens.
Neither the Borrower nor any Subsidiary will create, assume or suffer to exist any Lien securing Debt on any asset now owned or hereafter acquired by it, or assign any right to receive income, except:
(a)    (i) Liens created pursuant to any Loan Document and (ii) Liens existing on the date of this Agreement and, to the extent securing Debt having a principal amount in excess of $50,000,000 in the aggregate, disclosed on Schedule 5.08 attached hereto and any renewals or extensions thereof, provided that the property covered thereby is not expanded;
(b)    any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary or is merged into or consolidated with the Borrower or a Subsidiary; provided that (i) such Lien is not created in contemplation of such event, (ii) such Lien shall not apply to any other property or asset of the Borrower or any of its Subsidiaries, and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(c)    any Lien on any asset securing Debt permitted by Section 5.15(e); provided that such Lien shall not apply to any other property or asset of the Borrower or any of its Subsidiaries;
(d)    any Lien existing on any asset, or on the assets of any Person, prior to the acquisition thereof by the Borrower or a Subsidiary and not created primarily in contemplation of such acquisition, including Liens securing Debt permitted by Section 5.15(f);
(e)    any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing clauses of this Section 5.08; provided that such Debt is not increased and is not secured by any additional assets;
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(f)    Liens securing judgments for the payment of money not constituting an Event of Default under Section 6.01(j);
(g)    any Lien on or with respect to the property or assets of any Subsidiary securing obligations owing to the Borrower or another Subsidiary;
(h)    rights of offset and bankers’ liens in connection with Debt permitted hereby;
(i)    Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other types of social security (other than a Lien imposed by ERISA) or to secure the performance of tenders, statutory obligations, bid and appeals bonds, contracts (other than for the repayment of borrowed money) and surety and performance bonds (including, without limitation, Liens securing obligations under indemnity agreements for surety bonds); and
(j)    Liens not otherwise permitted by the foregoing clauses of this Section 5.08 securing Debt in an aggregate principal amount at any time outstanding not to exceed $50,000,000.
SECTION 5.09.    Consolidations, Mergers, Fundamental Changes and Sales of Assets.
(a)    The Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(i)    any Person (other than the Borrower or any of its Subsidiaries) may merge or consolidate with the Borrower or any of its Subsidiaries; provided that any such merger or consolidation involving (A) the Borrower must result in the Borrower as the surviving entity and (B) a Subsidiary Guarantor must result in a Subsidiary Guarantor or the Borrower as the surviving entity;
(ii)    any Subsidiary may merge into or consolidate with a Loan Party in a transaction in which the surviving entity is a Loan Party (provided that any such merger involving the Borrower must result in the Borrower as the surviving entity);
(iii)    any Subsidiary that is not a Loan Party may merge into or consolidate with another Subsidiary that is not a Loan Party;
(iv)    the Borrower and its Subsidiaries may sell, transfer, lease or otherwise dispose of any Subsidiary that is not a Loan Party (and, in connection with a liquidation, winding up or dissolution or otherwise, any Subsidiary that is not a Loan Party may sell, transfer, lease, license or otherwise dispose of any, all or substantially all of its assets) to another Subsidiary that is not a Loan Party;
(v)    the Borrower and its Subsidiaries shall be permitted to make Dispositions permitted by Section 5.09(d), including such Dispositions involving any merger or consolidation of a Subsidiary where such Subsidiary is not the surviving entity;
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(vi)    any Subsidiary that is not a Loan Party may liquidate, wind up or dissolve if the Borrower determines in good faith that such liquidation, winding up or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(vii)    any Subsidiary may liquidate, wind up or dissolve if its assets are transferred to the Borrower or any Subsidiary Guarantor or, if such Subsidiary is not a Subsidiary Guarantor, to any other Subsidiary.
provided that, during any Collateral Period, any such merger or consolidation involving a Person that is not a Loan Party immediately prior to such merger or consolidation, other than pursuant to a Disposition as described in clause (v) of this Section 5.09(a), shall not be permitted unless it is also permitted by Section 5.16.
(b)    The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business substantially different from businesses of the type conducted by the Borrower and its Subsidiaries (taken as a whole) on the Closing Date and businesses reasonably related, ancillary, similar, complementary or synergistic thereto or reasonable extensions, development or expansion thereof.
(c)    The Borrower will not, nor will it permit any of its Subsidiaries to, change its fiscal year from the basis in effect on the Closing Date; provided, however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders, to make any adjustments to this Agreement that are necessary to reflect such change in fiscal year.
(d)    The Borrower will not, and will not permit any Subsidiary to, make any Disposition, except:
(i)    Dispositions of obsolete, worn out or surplus property or other immaterial assets in the ordinary course of business;
(ii)    Dispositions of cash, inventory and Permitted Investments and other marketable securities in the ordinary course of business;
(iii)    Dispositions of equipment or real property to the extent that (x) such property is exchanged for credit against the purchase price of similar replacement property or (y) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(iv)    Dispositions to the Borrower or a Subsidiary; provided that any such Dispositions involving a Subsidiary that is not a Loan Party shall, to the extent applicable, be made in compliance with Sections 5.16 and 5.18;
(v)    leases, licenses, subleases or sublicenses (including the provision of open source software under an open source license) granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries;
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(vi)    Dispositions of intellectual property rights that are no longer used or useful in the business of the Borrower and its Subsidiaries and the nonexclusive licensing of intellectual property in the ordinary course of business;
(vii)    the discount, write-off or Disposition of accounts receivable overdue by more than ninety days, in each case in the ordinary course of business;
(viii)    Dispositions of non-core assets acquired in an Acquisition permitted by this Agreement; provided that such Dispositions shall be consummated within 360 days of such Acquisition; provided, further, that (x) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof (determined in good faith by the board of directors of the Borrower) and (y) no less than 75% thereof shall be paid in cash;
(ix)    other Dispositions of assets in a single transaction or a series of related transactions with a fair market value of $25,000,000 or less;
(x)    Restricted Payments permitted by Section 5.19, Investments permitted by Section 5.16 and Liens permitted by Section 5.08; and
(xi)    the Borrower and its Subsidiaries may make any other Disposition so long as (i) no Event of Default has occurred and is continuing prior to making such Disposition or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto and (ii) immediately after giving effect (including giving effect on a pro forma basis) thereto, the Borrower is in compliance with the covenants in Section 5.07.
SECTION 5.10.    Payment of Taxes, Etc.
The Borrower will pay, and will cause each Subsidiary to pay, before the same become delinquent, all Taxes, assessments and governmental charges imposed upon it or any of its properties, except where the same may be contested in good faith by appropriate proceedings and for which adequate reserves are being maintained in accordance with GAAP, or where any failure to so pay would not have a Material Adverse Effect, and the Borrower will maintain, and will cause each Subsidiary to maintain, in accordance with GAAP, appropriate reserves for the accrual of the same.
SECTION 5.11.    Pari-passu Obligations.
During any period when the Collateral Documents are not in effect, the obligations under this Agreement shall constitute direct, unconditional, senior, unsubordinated, general obligations of the Borrower and will rank at least pari-passu (in priority of payment) with all other existing and future senior, unsecured, unsubordinated obligations of the Borrower resulting from any indebtedness for borrowed money or Debt Guarantee.
SECTION 5.12.    Further Assurances.
At any time or from time to time upon the request of the Administrative Agent, the Borrower will, at its expense, promptly execute, acknowledge and deliver such further documents (including collateral agreements, UCC financing statements and the like pursuant to Section 2.12 and Section 5.14) and do such other acts and things as the Administrative Agent may reasonably request in order to effect fully the purposes of the Loan Documents.
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SECTION 5.13.    Use of Proceeds.
Neither the Borrower or any of its Subsidiaries will, directly or indirectly, use the proceeds of the Revolving Advances or Letters of Credit in violation of Section 4.10. None of the Borrower or any of its Subsidiaries will, directly or indirectly, use the proceeds of any Revolving Advance or any Letter of Credit hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or any other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, a Sanctioned Person or Sanctioned Country, or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the loan hereunder, whether as underwriter, advisor, investor, lender, hedge provider, facility or security agent or otherwise).
SECTION 5.14.    Subsidiary Guarantors; Collateral
.
(a)    As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the Administrative Agent in its sole discretion) after a Collateral Springing Event, the Borrower will enter into the Security Agreement, and the Borrower will cause any Person that qualifies as a Material Domestic Subsidiary as of the commencement of the applicable Collateral Period (and the Borrower shall provide the Administrative Agent with written notice thereof) to (i) enter into the Subsidiary Guaranty (or deliver to the Administrative Agent a joinder to the Subsidiary Guaranty (substantially in the form attached thereto or in such other form as may be agreed by the Administrative Agent) if the Subsidiary Guaranty is already in effect at such time) and (ii) enter into the Security Agreement (or deliver to the Administrative Agent a joinder to the Security Agreement (substantially in the form attached thereto or in such other form as may be agreed by the Administrative Agent) if the Security Agreement is already in effect at such time), such Subsidiary Guaranty and such Security Agreement (or, in each case, such joinder thereto) to be accompanied by requisite organizational resolutions, other organizational documentation and legal opinions as may be reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent and its counsel. Notwithstanding anything to the contrary in any Loan Document, no Excluded Subsidiary shall be required to be a Subsidiary Guarantor. If any additional Material Domestic Subsidiary is formed or acquired or if any Material Domestic Subsidiary ceases to be an Excluded Subsidiary, in each case after the commencement of the Collateral Period, the Borrower will cause such Material Domestic Subsidiary to comply with the provisions of this Section 5.14(a) within forty-five (45) days after such Material Domestic Subsidiary is formed or acquired or ceases to be an Excluded Subsidiary.
(b)    As promptly as possible but in any event within forty-five (45) days (or such later date as may be agreed upon by the Administrative Agent in its sole discretion) after a Collateral Springing Event, or within the time frame set forth in the last sentence of Section 5.14(a), as applicable, and thereafter at all times during any Collateral Period, the Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed but excluding Excluded Assets and subject to any other exclusions set forth in the Collateral Documents) to be subject at all times to perfected Liens in favor of the Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in any case to Liens permitted by Section 5.08. With respect to the pledge of any Equity Interest in any Subsidiary and subject to the terms, limitations and exceptions set forth in the applicable Collateral Documents, the Borrower will cause (A) 100% of the issued and outstanding Equity Interests of each Pledge Subsidiary that is a Domestic Subsidiary (other than Domestic Foreign
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Holding Companies and Subsidiaries of a CFC or a Domestic Foreign Holding Company) and (B) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) (the “Relevant Pledge Percentage”) in each Pledge Subsidiary (i) that is a Foreign Subsidiary treated as a CFC or (ii) that is a Domestic Foreign Holding Company, in the case of clause (i) and (ii), directly owned by the Borrower or any other Loan Party (other than Excluded Assets) to be subject at all times to a perfected (subject in any case to Liens permitted by Section 5.08) Lien in favor of the Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents and subject to the exclusions contained therein. The Borrower will, and will cause each Subsidiary Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property owned by the Borrower or such Subsidiary Guarantor (other than Excluded Assets). Notwithstanding the foregoing, no such Mortgages and Mortgage Instruments are required to be delivered hereunder until the date that is ninety (90) days after any Collateral Springing Event (or such later date as may be agreed upon by the Administrative Agent in its sole discretion). Notwithstanding the foregoing, with respect to any property acquired by a Loan Party after the commencement of a Collateral Period, except in the case of assets described in clause (ii) of paragraph (d) below, the requirements of paragraph (d) shall govern in lieu of the requirements of this paragraph (b).
(c)    Without limiting the foregoing, during any Collateral Period, the Borrower will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 3.01, as applicable), which may be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, subject to the terms, limitations and exceptions set forth herein or in any Collateral Document, all at the expense of the Borrower.
(d)    If any material assets (including any real property or improvements thereto or any interest therein) are acquired by a Loan Party during any Collateral Period (other than (i) Excluded Assets or (ii) assets of the type constituting Collateral under the Security Agreement that either become subject to the Lien under the Security Agreement upon acquisition thereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent’s Lien in such assets), the Borrower will notify the Administrative Agent thereof, and, if requested by the Administrative Agent, the Borrower will cause such assets, within forty-five (45) days in the case of personal property and ninety (90) days in the case of real property (or in each case by such later date as may be agreed upon by the Administrative Agent in its sole discretion), to be subjected to a Lien securing the Secured Obligations and will take, and, as applicable, cause the other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Borrower, subject, however, to the terms, limitations and exceptions set forth herein or in any Collateral Document.
(e)    Notwithstanding anything to the contrary set forth in this Section 5.14, it is understood and agreed that (i) a springing account control agreement shall only be required, if requested by the Administrative Agent, for the Borrower’s primary concentration account, (ii) no Loan Party shall have any obligation to take any action with respect to any Collateral located in any jurisdiction other than the United States, and (iii) no Loan Party shall have any obligation to enter into any collateral documentation governed by or required by the laws of any jurisdiction other than the United States in
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order to create or perfect any security interest in any Collateral, whether or not such Collateral is located in any jurisdiction other than the United States.
(f)    Upon the occurrence of a Collateral Release Event following the occurrence of a Collateral Springing Event, and so long as no Event of Default is then continuing, (i) any Liens granted to the Administrative Agent pursuant to the requirements of the foregoing clauses (a), (b), (c) and/or (d) of this Section 5.14 (such clauses, collectively, the “Collateral Requirements”) which remain in effect at such time shall be promptly released by the Administrative Agent upon written request by the Borrower (and the Administrative Agent agrees to execute and deliver any documents or instruments reasonably requested by the Borrower and in form and substance reasonably satisfactory to the Administrative Agent to evidence the release of all Collateral, all at the expense of the Borrower, each such release by the Administrative Agent to be made without any representation or warranty and without recourse to the Administrative Agent or any other Secured Party) and (ii) the Collateral Requirements shall be suspended and of no effect unless and until a subsequent Collateral Springing Event occurs following the occurrence of a Collateral Release Event, at which time the Collateral Requirements shall again become fully effective and binding upon the Borrower and the other Loan Parties in all respects, and the Borrower hereby acknowledges and agrees that it will, and will cause each other Loan Party to, re-grant the security interests in the Collateral pursuant to comparable Collateral Documents, all in accordance with the Collateral Requirements.
SECTION 5.15.    Debt
.
The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Debt, except:
(a)    the Secured Obligations;
(b)    Debt existing on the Closing Date and, to the extent having a principal amount in excess of $50,000,000 in the aggregate, set forth in Schedule 5.15 and amendments, modifications, extensions, refinancings, renewals and replacements of any such Debt that does not increase the outstanding principal amount thereof (other than with respect to unpaid accrued interest and premiums thereon, any committed or undrawn amounts and underwriting discounts, fees, commissions, premiums and expenses associated with such Debt);
(c)    Debt of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that, during any Collateral Period, (i) Debt of any Subsidiary that is not a Loan Party to any Loan Party shall be subject to the limitations set forth in Section 5.16(d) and (ii) Debt of any Loan Party to any Subsidiary that is not a Loan Party (other than any Debt represented by ordinary course receivables and payables that are part of intercompany cash management among the Borrower and the Subsidiaries) in an aggregate principal amount of more than $50,000,000 shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent;
(d)    Guarantees by the Borrower of Debt or other obligations of any Subsidiary and by any Subsidiary of Debt or other obligations of the Borrower or any other Subsidiary;
(e)    Debt of the Borrower or any Subsidiary incurred to finance the acquisition, construction, repair, replacement, lease or improvement of any fixed or capital assets, including capitalized lease obligations and any Debt assumed in connection with the acquisition of any such assets
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or secured by a Lien on any such assets prior to the acquisition thereof, (to the extent such Debt is incurred prior to or within one hundred eighty (180) days after such acquisition or the completion of such construction, repair, replacement, lease or improvement) and amendments, modifications, extensions, refinancings, renewals and replacements of any such Debt; provided that the aggregate outstanding principal amount of Debt permitted by this clause (e) shall not exceed $50,000,000 at any time outstanding;
(f)    Debt of any Person that becomes a Subsidiary of the Borrower after the Closing Date in a transaction permitted by this Agreement (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Borrower or a Subsidiary in a transaction permitted hereunder) or Debt of any Person that is assumed by the Borrower or any Subsidiary in connection with an Acquisition or other acquisition of any property or assets permitted hereunder, which Debt is existing at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired, and amendments, modifications, extensions, refinancings, renewals and replacements of any such Debt;
(g)    customer advances or deposits or other endorsements for collection, deposit or negotiation and warranties of products or services, in each case received or incurred in the ordinary course of business;
(h)    Debt of the Borrower or any Subsidiary as an account party in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Debt) in the ordinary course of business;
(i)    Debt of the Borrower or any Subsidiary not otherwise permitted by this Section 5.15; provided that the aggregate outstanding principal amount of Debt permitted by this clause (i) shall not in the aggregate exceed $50,000,000 at any time;
(j)    unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law;
(k)    Debt representing deferred compensation to employees incurred in the ordinary course of business;
(l)    indemnification obligations, purchase price adjustments, obligations under deferred compensation, earnouts or similar obligations, or Guarantees, surety bonds or performance bonds securing the performance of the Borrower or any of its Subsidiaries, in each case incurred or assumed in connection with a Permitted Acquisition or disposition or other acquisition of assets permitted hereunder;
(m)    Debt of the Borrower or any of its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business, including guarantees or obligations with respect to letters of credit supporting such performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations;
(n)    Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or otherwise in respect of any netting services, overdrafts and related liabilities arising from treasury,
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depository and cash management services or in connection with any automated clearing-house transfers of funds;
(o)    Debt in respect to judgments or awards under circumstances not giving rise to an Event of Default;
(p)    Debt in respect of obligations that are being contested in accordance with Section 5.10;
(q)    Debt consisting of (i) deferred payments or financing of insurance premiums incurred in the ordinary course of business of the Borrower or any of its Subsidiaries and (ii) take or pay obligations contained in any supply agreement entered into in the ordinary course of business;
(r)    To the extent constituting Debt, Swap Agreements permitted by Section 5.17;
(s)    Debt representing deferred compensation, severance, pension, and health and welfare retirement benefits or the equivalent to current and former employees of the Borrower and its Subsidiaries incurred in the ordinary course of business or existing on the Closing Date; and
(t)    (i) unsecured Debt so long as (x) no Event of Default has occurred and is continuing prior to the incurrence of such Debt or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto and (y) immediately after giving effect (including giving effect on a pro forma basis) to the incurrence of such Debt, the Borrower is in compliance with the covenants in Section 5.07, and (ii) amendments, modifications, extensions, refinancings, renewals and replacements of any such Debt that does not increase the outstanding principal amount thereof.
SECTION 5.16.    Investments, Loans, Advances, Guarantees and Acquisitions
.
During any Collateral Period, the Borrower will not, and will not permit any of its Subsidiaries to, (i) purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a Wholly-Owned Subsidiary prior to such merger or consolidation) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other similar right to acquire any of the foregoing) of, make any loans or advances to, Guarantee any obligations of, or make any investment or any other beneficial interest in, any other Person or (ii) purchase or otherwise acquire (in one transaction or a series of transactions) any Person or all or substantially all of the assets of any Persons or any assets of any other Person constituting a business unit, division, product line or line of business of such Person (each of the foregoing transactions described in the foregoing clauses (i) and (ii), an “Investment”), except:
(a)    cash and Permitted Investments (and investments that constituted Permitted Investments when made);
(b)    Permitted Acquisitions;
(c)    (i) Investments by the Borrower and its Subsidiaries in a Subsidiary Guarantor and (ii) Investments by any Person existing on the date such Person becomes a Subsidiary or consolidates or merges with the Borrower or any of its Subsidiaries pursuant to a transaction otherwise permitted hereunder;
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(d)    Investments (including, without limitation, capital contributions) made by the Borrower in or to any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary (provided that not more than an aggregate amount of $25,000,000 in Investments and capital contributions may be made and remain outstanding, at any time, by Loan Parties to Subsidiaries which are not Loan Parties);
(e)    Investments constituting deposits described in Section 5.08(i);
(f)    Guarantees constituting Debt permitted by Section 5.15(d);
(g)    Investments comprised of notes payable, stock or other securities issued by account debtors to the Borrower or any of its Subsidiaries pursuant to negotiated agreements with respect to settlement of such account debtor’s accounts in the ordinary course of business or Investments otherwise received in settlement of obligations owed by any financially troubled account debtors or other debtors in connection with such Person’s reorganization or in bankruptcy, insolvency or similar proceedings or in connection with foreclosure on or transfer of title with respect to any secured Investment;
(h)    extensions of trade credit or the holding of receivables in the ordinary course of business;
(i)    the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests of the Borrower or any option, warrant or other right to acquire any such Equity Interests in the Borrower, in each case to the extent the payment therefore is permitted under Section 5.19;
(j)    loans and advances to officers, directors and employees for moving, payroll, entertainment, travel and other similar expenses in the ordinary course of business;
(k)    endorsements for collection or deposit and prepaid expenses made in the ordinary course of business;
(l)    transactions (to the extent constituting Investments) or promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 5.09(d);
(m)    Investments constituting the creation of new Subsidiaries so long as, during any Collateral Period, (i) the Borrower or such Subsidiary complies with Section 5.14 hereof and (ii) any Investment in such new Subsidiary is otherwise permitted under this Section 5.16;
(n)    Guarantees of leases and other contractual obligations of any Subsidiary (to the extent not constituting Debt) in the ordinary course of business;
(o)    transfers of rights with respect to one or more products or technologies under development to joint ventures with third parties or to other entities where the Borrower or a Subsidiary retains rights to acquire such joint ventures or other entities or otherwise repurchase such products or technologies;
(p)    Investments in the form of Swap Agreements permitted by Section 5.17;
(q)    Investments made pursuant to capital calls or similar obligations in respect of joint venture entities;
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(r)    any other Investment (other than an Acquisition) so long as (i) no Event of Default has occurred and is continuing prior to making such Investment or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto and (ii) immediately after giving effect (including giving effect on a pro forma basis) thereto, the Borrower is in compliance with the covenants in Section 5.07; and
(s)    Investments not otherwise permitted by the foregoing clauses of this Section 5.16 in an aggregate amount at any time outstanding not to exceed $25,000,000.
SECTION 5.17.    Swap Agreements
.
The Borrower will not, and will not permit any of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary.
SECTION 5.18.    Transactions with Affiliates
.
The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions on terms and conditions not materially less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from a Person that is not an Affiliate for a comparable transaction, (b) transactions between or among the Borrower and its Subsidiaries (or an entity that becomes a Subsidiary of the Borrower as a result of such transaction) (or any combination thereof), (c) the payment of customary fees to directors of the Borrower or any of its Subsidiaries, and customary compensation, reasonable out-of-pocket expense reimbursement and indemnification (including the provision of directors and officers insurance) of, and other employment agreements and arrangements, employee benefit plans and stock incentive plans paid to, future, present or past directors, officers, managers and employees of the Borrower or any of its Subsidiaries, (d) transactions undertaken in good faith for the purpose of improving the consolidated tax efficiency of the Borrower and its Subsidiaries, (e) loans, advances and other transactions to the extent permitted by the terms of this Agreement, including without limitation any Restricted Payment permitted by Section 5.19 and transactions permitted by Section 5.09(a), 5.09(b) or 5.09(c), (f) issuances of Equity Interests to Affiliates and the registration rights associated therewith, (g) transactions with Affiliates as set forth on Schedule 5.18 (together with any amendments, restatements, extensions, replacements or other modifications thereto that are not materially adverse to the interests of the Lenders in their capacities as such), (h) any license, sublicense, lease or sublease (1) in existence on the Closing Date (together with any amendments, restatements, extensions, replacements or other modifications thereto that are not materially adverse to the interests of the Lenders in their capacities as such), (2) in the ordinary course of business or (3) substantially consistent with past practices, (i) transactions with joint ventures for the purchase or sale of property or other assets and services entered into in the ordinary course of business and Investments (during any Collateral Period, only as permitted by Section 5.16) in joint ventures, and (j) any transactions or series of related transactions with respect to
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which the aggregate consideration paid, or fair market value of property sold or disposed of, by the Borrower and its Subsidiaries is less than $25,000,000.
SECTION 5.19.    Restricted Payments
.
The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except:
(a)    the Borrower may declare and pay dividends or make other Restricted Payments with respect to its Equity Interests payable solely in additional Equity Interests;
(b)    Subsidiaries may (i) make dividends or other distributions to their respective equityholders with respect to their Equity Interests (which distributions shall be (x) made on at least a ratable basis to any such equityholders of the relevant class that are Loan Parties and (y) in the case of a Subsidiary that is not a Wholly-Owned Subsidiary, made on at least a ratable basis to any such equityholders of the relevant class that are the Borrower or a Subsidiary), (ii) make other Restricted Payments to the Borrower or any Subsidiary Guarantor (either directly or indirectly through one or more Subsidiaries that are not Loan Parties) and (iii) make any Restricted Payments that the Borrower would have otherwise been permitted to make pursuant to this Section 5.19;
(c)    the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries;
(d)    the Borrower may repurchase Equity Interests upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants or with the proceeds received from the substantially concurrent issue of new Equity Interests; and
(e)    the Borrower and its Subsidiaries may make any other Restricted Payment so long as (i) no Event of Default has occurred and is continuing prior to making such Restricted Payment or would arise immediately after giving effect (including giving effect on a pro forma basis) thereto and (ii) immediately after giving effect (including giving effect on a pro forma basis) thereto, the Borrower is in compliance with the covenants in Section 5.07.
SECTION 5.20.    Restrictive Agreements
.
The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Material Domestic Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets to secure the Secured Obligations (to the extent required by the Loan Documents), or (b) the ability of any Material Subsidiary (the “Subject Subsidiary”) to pay dividends or other distributions with respect to holders of its Equity Interests or to make or repay loans or advances to the Borrower or any other Subsidiary that is a direct or indirect parent of the Subject Subsidiary; provided that (i) this Section 5.20 shall not apply to (A) restrictions and conditions imposed by law or by any Loan Document, (B) restrictions and conditions existing on the Closing Date in respect of agreements or arrangements that are in excess of $50,000,000 and identified on Schedule 5.20 and any
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amendment, modification, refinancing, replacement, renewal or extension thereof that does not materially expand the scope of any such restriction or condition taken as a whole, (C) restrictions and conditions imposed on any Subsidiary or asset by any agreements in existence at the time such Subsidiary became a Subsidiary or such asset was acquired and any amendment, modification, refinancing, replacement, renewal or extension thereof that does not materially expand the scope of any such restriction or condition taken as a whole; provided that such restrictions and conditions apply only to such Subsidiary or asset, (D) customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale; provided that such restrictions and conditions apply only to the Subsidiary that is to be sold, (E) customary restrictions and conditions contained in any agreement relating to the disposition of any property pending the consummation of such disposition, (F) restrictions in the transfers of assets encumbered by a Lien permitted by Section 5.08, (G) restrictions or conditions set forth in any agreement governing Debt permitted by Section 5.15; provided that such restrictions and conditions are customary for such Debt as determined in the reasonable good faith judgment of the Borrower, (H) customary provisions restricting assignment of any agreement entered into in the ordinary course of business, (I) customary restrictions on cash or other deposits (including escrowed funds) or net worth imposed under contracts, (J) any other restriction or condition that will not materially impair the Borrower’s ability to make payments in respect of the Obligations when due or the ability of the Loan Parties to provide any Lien upon any of their material assets that are Collateral or required to be Collateral pursuant to the terms hereof, in the reasonable good faith judgment of the Borrower; provided that such restrictions and conditions apply only to such Subsidiary and to any Equity Interests in such Subsidiary, (ii) clause (a) of this Section 5.20 shall not apply to restrictions or conditions imposed by any agreement relating to secured Debt permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Debt, (iii) clause (a) of this Section 5.20 shall not apply to customary provisions in leases and other contracts restricting the assignment thereof and (iv) this Section 5.20 shall not apply to customary restrictions and conditions with respect to joint ventures.
SECTION 5.21.    Subordinated Debt and Amendments to Subordinated Debt Documents
.
The Borrower will not, and will not permit any Subsidiary to, directly or indirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Subordinated Debt or any Debt from time to time outstanding under the Subordinated Debt Documents (other than pursuant to any refinancings, renewals or replacements of such Debt to extent permitted by Section 5.15) (any such action, a “Prepayment Action”), other than (a) so long as (i) no Event of Default has occurred and is continuing prior to making such Prepayment Action or would arise after giving effect (including giving effect on a pro forma basis) thereto and (ii) immediately after giving pro forma effect thereto, the Borrower is in compliance with the covenants in Section 5.07, (b) regularly scheduled interest and principal payments as and when due in respect of any such Debt, other than payments in respect of such Debt prohibited by the subordination provisions thereof, (c) payments of or in respect of Debt in an amount equal to, at the time such payments are made and after giving effect thereto, $25,000,000, (d) payments required by the terms of the relevant Debt, which terms are designed to ensure such instrument would not be treated, at issuance, as an “applicable high yield discount obligation” within the meaning of Section 163(i) of the Code and (e) the conversion of such Debt to, or exchange of such Debt for, Equity Interests of the Borrower. Furthermore, the Borrower will not, and will not permit any Subsidiary to, amend the Subordinated Debt Documents or any document, agreement or instrument evidencing any Debt incurred pursuant to the Subordinated Debt Documents (or any replacements, substitutions, extensions or renewals thereof) or pursuant to which such Debt is issued where such amendment, modification or
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supplement is materially adverse to the Lenders when taken as a whole (as determined in good faith by the Borrower).
ARTICLE VI

DEFAULTS
SECTION 6.01.    Events of Default.
Each of the following events (each an “Event of Default”) shall constitute an Event of Default hereunder:
(a)    the Borrower shall fail to pay (i) when due, any amount of principal of any Revolving Advance or any LC Disbursement, or (ii) within three (3) days after the same becomes due, any interest on any Revolving Advance or any LC Disbursement, any fees or any other amount payable hereunder; or
(b)    the Borrower shall fail to observe or perform any covenant contained in Section 2.12 or Sections 5.07 to 5.11, inclusive, Sections 5.13 to 5.21, inclusive, or Article IX; or
(c)    the Borrower shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those covered by paragraph (a) or (b) above) for thirty (30) days after the earlier to occur of (i) written notice thereof having been given to the Borrower by the Administrative Agent at the request of any Lender or (ii) actual knowledge thereof by the Borrower or any of its Subsidiaries of such failure; or
(d)    any representation, warranty, certification or statement made by or on behalf of the Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made (or deemed made); or
(e)    the Borrower or any Subsidiary shall fail to make any payment in respect of any Debt (other than the Obligations) having an aggregate principal amount of at least $100,000,000 (or the Exchange Equivalent thereof) when due or within any applicable grace period; or
(f)    any event shall occur or condition shall exist which results in the acceleration of the maturity of any Debt of the Borrower or any Subsidiary having an aggregate principal amount of at least $100,000,000 (or the Exchange Equivalent thereof); or such Debt shall be declared due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof, excluding, however, prepayments of Debt required upon disposition of collateral securing such Debt so long as such Liens and dispositions are permitted hereby; or, for the avoidance of doubt, such Debt shall be required to be cash collateralized prior to the stated maturity thereof as a result of any event of default with respect to such Debt (excluding cash collateralization solely as a result of currency exchange fluctuations or Defaulting Lenders); or
(g)    the Borrower or any Subsidiary shall commence a voluntary case or other proceeding seeking to adjudicate the Borrower or any Subsidiary having total assets of $100,000,000 (or the Exchange Equivalent thereof) or more as bankrupt or insolvent, seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or for any substantial part of its property, or shall
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consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall admit in writing its inability to pay its debts generally; or
(h)    an involuntary case or other proceeding shall be commenced against the Borrower or any Subsidiary having total assets of $100,000,000 (or the Exchange Equivalent thereof) or more seeking to adjudicate it as bankrupt or insolvent, seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seeking the entry of an order for relief or the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or for any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of thirty (30) days; or an order for relief shall be entered against the Borrower or any Subsidiary having total assets of $100,000,000 (or the Exchange Equivalent thereof) or more under the federal bankruptcy laws as now or hereafter in effect; or
(i)    any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $100,000,000 (or the Exchange Equivalent thereof) which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA except where the failure to so pay would not (in the opinion of the Required Lenders) have a Material Adverse Effect; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in an amount that would have a Material Adverse Effect (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against any member of the Controlled Group to enforce Section 515 of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or
(j)    to the extent not insured against, one or more final judgments or orders for the payment of money aggregating in excess of $100,000,000 (or the Exchange Equivalent thereof) shall be rendered against the Borrower or any Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders or (ii) any of such judgments or orders shall continue unsatisfied and unstayed by reason of a pending appeal or otherwise for a period of thirty (30) days; or
(k)    (i) any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d3 promulgated by the SEC under said Act) of 35% or more of the outstanding shares of common stock of the Borrower or (ii) at any time during any period of twelve consecutive calendar months a majority of the Board of Directors of the Borrower shall not consist of individuals who were either directors of the Borrower on the first day of such period (“original directors”) or appointed as or whose nomination as directors was approved either (A) by individuals including a majority of those of the original directors who have not, prior to such appointment or nomination, resigned or died, or (B) by a duly constituted committee of the Board of Directors of the Borrower, a majority of which consists of the original directors; or
(l)    all or any substantial part of the property of the Borrower and its Subsidiaries (taken as a whole) shall be condemned, seized or otherwise appropriated, or custody or control of such property
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shall be assumed, by any court or governmental agency of competent jurisdiction, and such property shall be retained for a period of thirty (30) days, which condemnation, seizure or other appropriation could reasonably be expected to have a Material Adverse Effect;
(m)    any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower contests in any manner the validity or enforceability of any provision of any Loan Document; or the Borrower denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
(n)    during any Collateral Period, any Collateral Document, after execution thereof, shall for any reason fail to create a valid and perfected security interest in any material portion of the Collateral purported to be covered by the Collateral Documents, except (i) as permitted by the terms of any Loan Document or (ii) as a result of gross negligence or willful misconduct of the Administrative Agent so long as not resulting from the breach or non-compliance with any Loan Document by any Loan Party.
SECTION 6.02.    Remedies.
Upon the occurrence and during the continuance of any Event of Default (other than any event specified in paragraph (g) or (h) of Section 6.01 (with respect to the Borrower)): (a) the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, require, without notice or demand, either or both of the following, at the same or different times: (i) that any or all of the LC Exposure, the Revolving Advances and all other Obligations, although not yet due, be immediately due and payable, and thereupon such LC Exposure, Revolving Advances and all other such Obligations shall be immediately due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower, and (ii) that all Commitments be terminated, and thereupon all Commitments shall terminate immediately; and in any event, the Administrative Agent shall have in any jurisdiction where enforcement is sought, in addition to all other rights and remedies, the rights and remedies of a secured party under the UCC; and (b) the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, require the Borrower to deposit cash collateral in Dollars with the Administrative Agent and otherwise perform all of their obligations under Section 2.12; provided that upon the occurrence of any event specified in paragraph (g) or (h) of Section 6.01 (with respect to the Borrower), (x) such cash collateral referred to in clause (b) above shall be immediately deposited with the Administrative Agent in accordance with the provisions of Section 2.12 and (y) all Commitments shall automatically terminate and such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Loan Documents, during any Collateral Period, the Administrative Agent on behalf of the Lenders may exercise all rights and remedies of a secured party under the UCC or any other applicable law. Without limiting the generality of the foregoing, during any Collateral Period, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived by the Borrower on behalf of itself and its Subsidiaries), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Loan Party of any cash collateral arising in respect of the Collateral on such terms as the Administrative Agent deems reasonable,
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and/or may forthwith sell, lease, assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. During any Collateral Period, the Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or equity is hereby waived and released by the Borrower on behalf of itself and its Subsidiaries. The Borrower further agrees on behalf of itself and its Subsidiaries, during any Collateral Period, at the Administrative Agent’s request, to assemble the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the premises of the Borrower, another Loan Party or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Article VI, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as set forth in Section 6.03, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York Uniform Commercial Code, need the Administrative Agent account for the surplus, if any, to any Loan Party. To the extent permitted by applicable law, the Borrower on behalf of itself and its Subsidiaries waives all Liabilities it may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.
SECTION 6.03.    Application of Payments
. Notwithstanding anything herein to the contrary, following the occurrence and during the continuance of an Event of Default, and notice thereof to the Administrative Agent by the Borrower or the Required Lenders:
(a)    all payments received on account of the Secured Obligations shall, subject to Section 2.22, be applied by the Administrative Agent as follows:
(i)    first, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts payable to the Administrative Agent (including fees and disbursements and other charges of counsel to the Administrative Agent payable under Section 8.03 and amounts pursuant to Section 2.19(d) payable to the Administrative Agent in its capacity as such);
(ii)    second, to payment of that portion of the Secured Obligations constituting fees, expenses, indemnities and other amounts (other than principal, reimbursement obligations in respect of LC Disbursements, interest and Letter of Credit fees) payable to the Lenders, the Issuing Lenders and the other Secured Parties (including fees and disbursements and other charges of counsel to the Lenders and the Issuing Lenders payable under Section 8.03) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause (ii) payable to them;
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(iii)    third, to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit fees and charges and interest on the Loans and unreimbursed LC Disbursements, ratably among the Lenders and the Issuing Lenders in proportion to the respective amounts described in this clause (iii) payable to them;
(iv)    fourth, (A) to payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, unreimbursed LC Disbursements and unreimbursed amounts in respect of drawings and payments in respect of Secured Bilateral LC Obligations, (B) to cash collateralize that portion of LC Exposure comprising the undrawn amount of Letters of Credit to the extent not otherwise cash collateralized by the Borrower pursuant to Section 2.12 or 2.22; provided that (x) any such amounts applied pursuant to subclause (B) above shall be paid to the Administrative Agent for the account of the Issuing Lenders to cash collateralize Secured Obligations in respect of Letters of Credit, (y) subject to Section 2.12 or 2.22, amounts used to cash collateralize the aggregate amount of Letters of Credit pursuant to this clause (iv) shall be used to satisfy drawings under such Letters of Credit as they occur and (z) upon the expiration of any Letter of Credit (without any pending drawings), the pro rata share of cash collateral shall be distributed to the other Secured Obligations, if any, in the order set forth in this Section 6.03, (C) to cash collateralize that portion of the Secured Bilateral LC Obligations comprised of undrawn amounts of letters of credit and acceptances and contingent bank guarantees, to the extent not already cash collateralized in accordance with the terms thereof in an amount not to exceed 102% of the maximum amount thereof and (D) to any other amounts owing with respect to Secured Banking Services Obligations and Secured Swap Obligations, in each case, ratably among the Lenders and the Issuing Lenders and any other applicable Secured Parties in proportion to the respective amounts described in this clause (iv) payable to them;
(v)    fifth, to the payment in full of all other Secured Obligations, in each case ratably among the Administrative Agent, the Lenders, the Issuing Lenders and the other Secured Parties based upon the respective aggregate amounts of all such Secured Obligations owing to them in accordance with the respective amounts thereof then due and payable; and
(vi)    finally, the balance, if any, after all Secured Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by law.
(b)    If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired (without any pending drawings), such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above.
(c)    Notwithstanding the foregoing, Secured Banking Services Obligations, Secured Swap Obligations and Secured Bilateral LC Obligations shall be excluded from the application described in this Section 6.03 if the Administrative Agent has not received written notice thereof and related information thereto as required by Section 7.14. Each Banking Services Provider, Swap Bank or Bilateral LC Provider not a party to this Agreement that has given the notice contemplated by the preceding sentence (or, in the case of a Bilateral LC Provider, been the subject of such notice given by the Borrower) shall, by the giving of such notice (or, in the case of a Bilateral LC Provider, being the subject of such notice given by the Borrower), be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article VII hereof for itself and its Affiliates as if a “Lender” party hereto.
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ARTICLE VII

THE ADMINISTRATIVE AGENT
SECTION 7.01.    Appointment and Authorization.
(a)    Each of the Lenders and each Issuing Lender hereby irrevocably appoints BNPP to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. Further, each of the Lenders and Issuing Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, hereby irrevocably empower and authorize BNP Paribas (in its capacity as Administrative Agent) to execute and deliver the Collateral Documents and all related documents or instruments as shall be necessary or appropriate to effect the purposes of the Collateral Documents. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and Issuing Lender hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s or Issuing Lender’s behalf. Without limiting the foregoing, each Lender and Issuing Lender hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations under, each of the Loan Documents to which the Administrative Agent is a party, and to exercise all rights, powers and remedies that the Administrative Agent may have under such Loan Documents. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and the Borrower shall not have any rights as a third party beneficiary of any of such provisions.
(b)    As to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and Issuing Lender; provided, however, that the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes it to liability unless the Administrative Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Lenders with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(c)    In case of the pendency of any proceeding with respect to any Loan Party under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Revolving Advance or any reimbursement obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(i)    to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Revolving Advances, LC Disbursements and all other Secured Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lenders and the Administrative Agent (including any claim under Sections 2.05, 2.11, 2.16, 2.17, 2.19 and 8.03) allowed in such judicial proceeding; and
(ii)    to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Lender and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, the Issuing Lenders or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 8.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or Issuing Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender or Issuing Lender in any such proceeding
SECTION 7.02.    Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires or the Administrative Agent is not a Lender hereunder, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 7.03.    Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by
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it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Revolving Advance, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Lender prior to the making of such Revolving Advance or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 7.04.    Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub agents appointed by the Administrative Agent. The Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
SECTION 7.05.    Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties are entirety mechanical and administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:
(a)    shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b)    shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c)    shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 6.02 and 8.05) or (ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
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unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document (including, for the avoidance of doubt, in connection with the Administrative Agent’s reliance on any Electronic Signature transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page), (v) the satisfaction of any condition set forth in Article III or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vi) the creation, perfection or priority of Liens on the Collateral or the existence of the Collateral.
SECTION 7.06.    Indemnification.
To the extent that the Borrower for any reason fails to indefeasibly pay any amount required pursuant to Section 8.03(a) or Section 8.03(b) to be paid by it to the Administrative Agent (or any sub-agent thereof), any Issuing Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or such Issuing Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or such Issuing Lender in connection with such capacity. The obligations of the Lenders under this Section 7.06 are subject to the provisions of Section 2.14(e).
SECTION 7.07.    Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and each Issuing Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each Issuing Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 7.08.    Resignation and Removal of Administrative Agent.
(a)     The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have
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accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or an Issuing Lender under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed), and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each Issuing Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 8.03 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
(b)    Any resignation by BNPP as Administrative Agent pursuant to this Section shall also constitute its resignation as an Issuing Lender. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender, (b) the retiring Issuing Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Issuing Lender to effectively assume the obligations of the retiring Issuing Lender with respect to such Letters of Credit.
(c)    If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (e) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
SECTION 7.09.    Agent With Respect to Cash Collateral Accounts.
Each Lender hereby authorizes the Administrative Agent, on behalf of and for the benefit of Lenders, to be the agent for and representative of the Lenders and the Issuing Lenders with respect to any cash collateral accounts. Anything contained in any of the Loan Documents to the contrary notwithstanding, the Borrower, the Administrative Agent, each Lender and each Issuing Lender hereby
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agree that no Lender or Issuing Lender shall have any right individually to realize upon any cash collateral accounts, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent, on behalf of the Lenders and the Issuing Lenders, in accordance with the terms hereof. In furtherance, and not by limitation, of the foregoing, without written consent or authorization from the Lenders or the Issuing Lenders, the Administrative Agent may, in accordance with the terms of this Agreement, release any Lien encumbering any of the cash collateral and execute any documents or instruments necessary to accomplish any of the foregoing.
SECTION 7.10.    Collateral Matters.
(a)    Except with respect to the exercise of setoff rights in accordance with Section 8.04 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties. Each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, hereby irrevocably authorizes the Administrative Agent, at its option and in its discretion, to release any Lien granted to or held by the Administrative Agent upon any Collateral (i) as described in Section 5.14(f) and Section 8.05(b); (ii) as permitted by, but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Upon any sale or transfer of assets constituting Collateral which is permitted pursuant to the terms of any Loan Document, or consented to in writing by the Required Lenders or all of the Lenders, as applicable, and upon at least five (5) Business Days’ prior written request by the Borrower to the Administrative Agent, the Administrative Agent shall (and is hereby irrevocably authorized by the Lenders to) execute such documents as may be necessary to evidence the release of the Liens granted to the Administrative Agent for the benefit of the Secured Parties herein or pursuant hereto upon the Collateral that was sold or transferred; provided, however, that (i) the Administrative Agent shall not be required to execute any such document on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (ii) such release shall not in any manner discharge, affect or impair the Secured Obligations or any Liens upon (or obligations of the Loan Parties in respect of) all interests retained by any Loan Party, including (without limitation) the proceeds of the sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(b)    In furtherance of the foregoing and not in limitation thereof, no Banking Services Agreement, Swap Agreement or Bilateral LC will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Banking Services Agreement, Swap Agreement
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or Bilateral LC, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(c)    The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
SECTION 7.11.    Credit Bidding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Secured Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Secured Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the direction of the Required Lenders on a ratable basis (with Secured Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Secured Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 8.05 of this Agreement), (iv) the Administrative Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Secured Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Secured Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Secured Obligations assigned to the acquisition vehicle exceeds the amount of Secured Obligations credit
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bid by the acquisition vehicle or otherwise), such Secured Obligations shall automatically be reassigned to the Secured Parties pro rata with their original interest in such Secured Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Secured Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Secured Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid
SECTION 7.12.    Certain ERISA Matters.
(a)    Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and the Joint Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true.
(i)    such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Revolving Advances, the Letters of Credit or the Commitments,
(ii)    the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Revolving Advances, the Letters of Credit, the Commitments and this Agreement,
(iii)    (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Revolving Advances, the Letters of Credit, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Revolving Advances, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Revolving Advances, the Letters of Credit, the Commitments and this Agreement, or
(iv)    such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
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(b)    In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and the Joint Lead Arrangers, or any of their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, or the Joint Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
(c)    The Administrative Agent and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provide investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Revolving Advances, the Letters of Credit, the Commitments, this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Revolving Advances, the Letters of Credit or the Commitments for an amount less than the amount being paid for an interest in the Revolving Advances, the Letters of Credit or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, commitment fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent fees or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
SECTION 7.13.    No Other Duties, etc.
Anything herein to the contrary notwithstanding, none of the Lenders or their Affiliates identified in this Agreement as Joint Lead Arrangers, the Syndication Agent, the Co-Documentation Agents or any other agent (other than the Administrative Agent) shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, other than, in the case of Lenders those applicable to all Lenders as such and in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Lender hereunder.
SECTION 7.14.    Secured Banking Services Obligations; Secured Swap Obligations; and Secured Bilateral LC Obligations
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(a)    Each Banking Services Provider and each Swap Bank (other than any such Person that is the Administrative Agent or any Affiliate of the Administrative Agent) (i) shall deliver to the Administrative Agent, promptly after entering into the relevant Banking Services Agreement or relevant Swap Agreement, as applicable, written notice setting forth the aggregate amount of all obligations of the Borrower and/or its Subsidiary(ies) in respect of such Banking Services Agreement and such Swap Agreement, as applicable, to such Banking Services Provider or Swap Bank, as applicable (whether matured or unmatured, absolute or contingent) and (ii) may, in its discretion, provide a supplemental notice to the Administrative Agent setting forth any changes in respect of such obligations. The most
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recent information provided to the Administrative Agent pursuant to this Section 7.14(a) shall be used in determining the amounts to be applied in respect of such Secured Banking Services Obligations and/or Secured Swap Obligations, as applicable, pursuant to Section 6.03.
(b)    The Borrower may, at its sole discretion, deliver to the Administrative Agent, promptly after the issuance of the relevant Bilateral LC, written notice setting forth (i) the Bilateral LC Provider in respect of such Bilateral LC, (ii) the aggregate amount of all obligations of the Borrower and/or its Subsidiary(ies) in respect of such Bilateral LC and (iii) the termination date of such Bilateral LC. Such notice shall also confirm that at such time the Dollar Equivalent of the aggregate amount of Secured Bilateral LC Obligations (including the obligations in respect of such Bilateral LC) does not exceed $250,000,000. Such notice shall not be effective under this Section 7.14(b) until the Administrative Agent shall have confirmed its approval of the inclusion of the obligations in respect of such Bilateral LC as Secured Bilateral LC Obligations (such approval not to be unreasonably withheld or delayed). For the avoidance of doubt, if the Borrower has not provided to the Administrative Agent the notice described in this Section 7.14(b) in respect of any Bilateral LC (and the Administrative Agent has not confirmed its approval thereof), then none of the obligations owing to the applicable Bilateral LC Provider in respect of such Bilateral LC shall constitute Secured Bilateral LC Obligations for any purpose under this Agreement or any other Loan Document.
(c)    Except as otherwise expressly set forth herein, no Banking Services Provider, Swap Bank or Bilateral LC Provider that obtains the benefits of Section 6.03, the Subsidiary Guaranty or any Collateral by virtue of the provisions hereof or of the Subsidiary Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.
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ARTICLE VIII

MISCELLANEOUS
SECTION 8.01.    Notices.
(a)    Except in the case of notices and other communications expressly permitted to be given by telephone, all notices, requests and other communications to any party hereunder shall be in writing (including telecopy and including electronic mail and Internet or intranet websites such as Debt Domain or any similar platform to the extent provided in Section 8.01(b)) and shall be given to such party at its address, telecopy number or electronic mail address set forth on the signature pages hereof or such other address, telecopy number or electronic mail address as such party may hereafter specify for the purpose by notice to the Administrative Agent, the Issuing Lenders and the Borrower. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if given by telecopy, when such telecopy has been received by the addressee thereof, (iii) if delivered through electronic communications (including electronic mail and Internet or intranet websites such as Debt Domain or any similar platform) to the extent provided in Section 8.01(b) below, as provided in such Section 8.01(b) or (iv) if given by any other means, when delivered at the address specified in this Section 8.01(a); provided that notices to the Administrative Agent or any Issuing Lender under Article II shall not be effective until received. The Administrative Agent and the Issuing Lenders shall not be liable for any errors in transmission or the illegibility of any telecopied documents. In the event the Borrower sends the Administrative Agent or any Issuing Lender a manually signed confirmation of previously sent facsimile instructions, the Administrative Agent and the Issuing Lenders shall have no duty to compare it against the previous instructions received by the Administrative Agent or the Issuing Lenders nor shall the Administrative Agent or any Issuing Lender have any responsibility should the contents or the written confirmation differ from the facsimile instructions acted upon by the Administrative Agent or any Issuing Lender.
(b)    Notices and other communications to the Lenders and the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including email and Internet or intranet websites such as Debt Domain or any similar platform) pursuant to procedures approved by the Administrative Agent; provided that (i) the foregoing shall not apply to notices to any Lender or the Issuing Lenders pursuant to Article II if such Lender or such Issuing Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication and (ii) in the case of notices and other communications posted to an Internet or intranet website (such as Debt Domain or any similar platform), notice thereof shall be sent to each intended recipient at its e-mail address that such notice or communication is available and identifying the website address therefor. The Administrative Agent or the Borrower may, in their respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
SECTION 8.02.    No Waivers.
No failure or delay by the Administrative Agent, any Issuing Lender or any Lender in exercising any right, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the
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exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.03.    Expenses; Indemnification.
(a)    Expenses. The Borrower agrees to pay on demand: (i) all reasonable outofpocket expenses incurred by the Administrative Agent, the Joint Lead Arrangers (including the reasonable fees, charges and disbursements of counsel), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable outofpocket expenses incurred by any Issuing Lender in connection with the issuance, creation, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all outofpocket expenses incurred by the Administrative Agent, any Lender or any Issuing Lender (including the fees, charges and disbursements of any counsel), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Revolving Advances made or Letters of Credit issued hereunder, including all such outofpocket expenses incurred during any workout, restructuring or negotiations in respect of such Revolving Advances or Letters of Credit.
(b)    Indemnification; Waiver of Consequential Damages. The Borrower agrees to defend, indemnify, pay and hold harmless the Administrative Agent (in its capacity as such), each Issuing Lender (in its capacity as such), each Lender and each of the Joint Lead Arrangers and their Affiliates and their respective officers, directors, employees and agents (collectively, the “Indemnitees”) from and against any and all losses, obligations, penalties, actions, judgments, claims, damages, liabilities, disbursements and expenses (including reasonable attorneys fees and expenses, which may include the allocated cost of internal counsel, and settlement costs) of any kind or nature whatsoever, whether direct, indirect or consequential, and whether based on any federal, state or foreign laws, statutes, rules or regulations, on common law or equitable cause or on contract or otherwise, which may be imposed on, incurred by or asserted against the Indemnitees in any way related to or arising out of this Agreement or the other Loan Documents, or the transactions contemplated hereby or thereby or the use of proceeds of the Revolving Advances or Letters of Credit (collectively, “Losses”), except any such Losses (i) resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment by a court of competent jurisdiction or (ii) resulting from a claim brought by the Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction, provided that nothing in this Section 8.03(b) shall obligate the Borrower to pay the normal expenses of the Administrative Agent in the administration of this Agreement in the absence of pending or threatened litigation or other proceedings or the claims or threatened claims of others and then only to the extent arising therefrom. This Section 8.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
To the fullest extent permitted by applicable law, the Borrower shall not assert, and each hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Revolving Advance or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in this Section 8.03(b) above shall be liable for any damages
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arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee.
(c)    Breakage. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense reasonably incurred by it as a result of: (i) any continuation, conversion, payment or prepayment of any Eurocurrency Rate Revolving Advance on a day other than the last day of the Interest Period for such Eurocurrency Rate Revolving Advance (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (ii) any failure by the Borrower (for a reason other than the failure of such Lender to make a Revolving Advance) to prepay, borrow, continue or convert any Eurocurrency Rate Revolving Advance on the date or in the amount notified by the Borrower; or (iii) the assignment of any Eurocurrency Rate Revolving Advance other than on the last day of an Interest Period therefor as a result of a request by the Borrower pursuant to Section 2.23; in each case, including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Eurocurrency Rate Revolving Advance or from fees payable to terminate the deposits from which such funds were obtained but excluding any loss of anticipated profits. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
(d)    Survival. The obligations of the Borrower under this Section 8.03 shall survive the termination of this Agreement, the termination of the Aggregate Commitments hereunder and payment of the Obligations.
SECTION 8.04.    Sharing of SetOffs.
Each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Obligations owing to such Lender which is greater than the proportion received by any other Lender in respect of the aggregate amount of principal and interest due with respect to Obligations owing to such other Lender, the Lender receiving such proportionately greater payment shall purchase such participations in the LC Exposure of the other Lenders or Revolving Advances of the other Lenders, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the LC Exposure of the Lenders or Revolving Advances of the Lenders shall be shared by the Lenders pro rata; provided that nothing in this Section 8.04 shall impair the right of any Lender to exercise any right of setoff or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of any Loan Party other than its LC Exposure or other Obligations owing to such Lender. The Borrower agrees (for itself and on behalf of each other Loan Party), to the fullest extent it may effectively do so under applicable law, that any holder of any participation in any Revolving Advances or a participation in any LC Exposure, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of setoff or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the relevant Loan party in the amount of such participation. If under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a setoff to which this Section 8.04 would apply, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 8.04 to share in the benefits of any recovery on such secured claim. The Borrower hereby authorizes (for itself and on behalf of each other Loan Party) BNPP and each other Lender, in accordance with the provisions of this Section
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8.04, to so setoff and apply any and all such deposits held and other indebtedness owing by BNPP or such other Lender to or for the credit or the account of the applicable Loan Party and hereby authorizes (for itself and on behalf of each other Loan Party) BNPP and each such other Lender to permit such setoff and application by BNPP or such other Lender; provided that any such set-off rights shall not, solely in respect of any Obligations owing by any Loan Party, apply to the accounts or deposits of the Borrower’s foreign Subsidiaries. Each Lender and each Issuing Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 8.05.    Amendments and Waivers.

(a)    Any provision of this Agreement or any other Loan Document may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower and the Required Lenders (and, if the rights or duties of the Administrative Agent or any Issuing Lender are affected thereby, by the Administrative Agent or each affected Issuing Lender, as the case may be); provided that, except (x) in respect of Incremental Commitment Increase and any Incremental Term Loans as provided in Section 2.24 and (y) as provided in Section 2.05(e)(ii)(B), Section 2.05(e)(ii)(C) and Section 2.05(e)(ii)(D), no such amendment, waiver or modification shall: (i) extend or increase any Commitment of any Lender or subject any Lender to any additional obligation without the written consent of such Lender, (ii) reduce the principal of or rate or amount of interest (other than interest payable at the default rate set forth in Section 2.05(d)) on any Revolving Advance or any LC Disbursement or any fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby , (iii) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby, (iv) extend the terms of any Letter of Credit (other than as set forth below) without the written consent of each Lender directly affected thereby, (v) amend this Section 8.05 without the written consent of each Lender, (vi) change Section 2.14(c), Section 2.14(d) or Section 8.04 or any other provision of this Agreement in a manner that would alter the pro rata sharing or disbursement of payments required thereby without the written consent of each Lender, (vii) change the payment waterfall provisions of Section 6.03 without the written consent of each Lender, (viii) modify the definition of “Required Lenders” or change the percentage of the Commitments or the number of Lenders which shall be required for the Lenders or any of them to take any action under this Section 8.05 or any other provision of this Agreement without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.24 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Revolving Advances are included on the Closing Date), (ix) except as provided in Section 8.05(b), release all or substantially all of the Collateral without the written consent of each Lender, (x) other than pursuant to the terms of Section 8.24 upon the occurrence of a Collateral Release Event, release all or substantially all of the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty without the written consent of each Lender or (xi) other than pursuant to the terms of such Article IX upon the occurrence of a Collateral Release Event, release the Borrower from its obligations under Article IX without the written consent of each Lender; provided, further, that each of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing, (1) the Expiration Date of any Letter of Credit may be extended with the consent of the applicable Issuing Lender and the Borrower to a date not later than the
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seventh Business Day prior to the Maturity Date, (2) any Letter of Credit may be amended in any other manner with the consent of the applicable Issuing Lender and the Borrower so long as such Letter of Credit, as so amended, complies with Section 2.07 of this Agreement and (3) the Maturity Date of this Agreement may be extended pursuant to the requirements contained in Section 2.25 of this Agreement. Notwithstanding the foregoing, any amendment to this Agreement made pursuant to Section 5.09(c) in order to make adjustments to this Agreement to reflect the Borrower’s change in its fiscal year shall only be required to be signed by the Borrower and the Administrative Agent. Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent that by its terms requires the consent of all the Lenders or each directly affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Revolving Advances may not be extended, the rate of interest on any of its Revolving Advances may not be reduced and the principal amount of any of its Revolving Advances may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any amendment, waiver or consent requiring the consent of all the Lenders or each directly affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.
(b)    Upon the termination of all the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Secured Swap Obligations not yet due and payable, Secured Banking Services Obligations not yet due and payable, Secured Bilateral LC Obligations not yet due and payable, Unliquidated Obligations for which no claim has been made and other Obligations expressly stated to survive such payment and termination), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative Agent, all obligations under the Loan Documents and all security interests under the Collateral Documents shall be automatically released. Subject to the reinstatement provisions set forth in any applicable Collateral Document, a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Loan Party shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Loan Party ceases to be a Material Domestic Subsidiary or becomes an Excluded Subsidiary; provided that, if so required by this Agreement, the Required Lenders (or if applicable, the Lenders) shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon (i) any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, (ii) the expiration or termination of property leased to any Loan Party in a transaction permitted by this Agreement, (iii) the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 8.05(a), (iv) any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VI, and (v) the occurrence of a Collateral Release Event in accordance with the terms and conditions of Section 5.14(f), the security interests in such Collateral created by the Collateral Documents shall be automatically released; provided, however, that the Lien of the Collateral Documents shall attach to any proceeds of the foregoing. Upon the release of any Loan Party from its Guarantee in compliance with this Agreement, the security interest in any Collateral owned by such Loan Party created by the Collateral Documents shall be automatically released. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted
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to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 5.08 or (ii) in the event that the Borrower shall have advised the Administrative Agent that, notwithstanding the use by the Borrower of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause (i) above), the holder of such other Debt requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s Liens on such assets. In connection with any termination or release pursuant to this Section 8.05(b), and in connection with any Collateral becoming an Excluded Asset, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to file or register in any office, or to evidence, such termination or release, or, in the case of Collateral becoming an Excluded Asset, to effect, to file or register in any office, or to evidence the release of any security interest created by the Collateral Documents in such assets. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent. Each of the Secured Parties irrevocably authorizes the Administrative Agent, at its option and in its discretion, to effect the releases set forth in this Section.
(c)    Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Advances, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d)    Notwithstanding anything to the contrary herein, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
SECTION 8.06.    Successors and Assigns.
(a)    Binding Agreement. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Borrower may not assign or otherwise transfer any of its rights and Obligations under this Agreement without the consent of each Lender.
(b)    Successors and Assigns. Each Lender may assign to one or more banks or other entities all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitments and the Revolving Advances and LC Exposure held by it); provided, however, that (A) each such assignment shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (B) the aggregate amount of the Commitments, Revolving Advances and LC Exposure of the assigning Lender being assigned pursuant to each such assignment shall (1) not be less than $5,000,000 and shall be an integral multiple of $1,000,000 or (2) be the
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remaining amount of such Lender’s Commitments, Revolving Advances and LC Exposure, (C) each such assignment and proposed assignee is subject to the prior written consent of the Administrative Agent, the Issuing Lenders and, so long as no Default has occurred and is continuing, the Borrower (which consents shall not be unreasonably withheld, conditioned or delayed); provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; provided further, however, that the consent of the Administrative Agent, and the Borrower shall not be required with respect to any such assignment by any Lender to (x) an Affiliate of such Lender, (y) an Approved Fund or (z) another Lender, (D) no such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (E) no such assignment shall be made to a natural person, (F) no assignment shall be made to a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof, (G) no such assignment may be made to a Disqualified Competitor, (H) no assignment shall be made to a Defaulting Lender or its Lender Parent and (I) the assigning Lender shall pay or cause to be paid to the Administrative Agent a processing and recordation fee of $3,500 (except in the case of an assignment to an Affiliate of the assigning Lender). For each assignment, the parties to such assignment shall execute and deliver to the Administrative Agent for its acceptance and recording an Assignment and Assumption Agreement, together with such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment and Assumption Agreement may be required to deliver pursuant to Section 2.16. Upon the execution, delivery, acceptance and recording by the Administrative Agent, from and after the effective date specified in any Assignment and Assumption Agreement, the assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption Agreement, the assignor Lender thereunder shall be released from its obligations under the Loan Documents. From and after the effective date of any such assignment (1) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have (in addition to any such rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder, shall have Commitments equal to the Commitments assigned to it (in addition to any Commitments theretofore held by it), and shall have LC Exposure and Revolving Advances equal to the LC Exposure and Revolving Advances assigned to it (in addition to any LC Exposure and Revolving Advances theretofore held by it) and (2) the assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights (other than any rights which survive the termination of this Agreement under Section 8.03) and be released from its obligations under this Agreement (and, in the case of an assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). From time to time, at the request of any Lender, the Administrative Agent shall notify the Lenders of the current Commitments of all Lenders.
(c)    Sub-Participations. Subject to Section 8.06(d), a Lender may at any time grant sub-participations to one or more banks or other entities (a “Participant”) in or to all or any part of its rights and obligations under this Agreement, and to the extent of any such sub-participation (unless otherwise stated therein and except as provided below) the purchaser of such sub-participation shall, to the fullest extent permitted by law, have the same rights and benefits hereunder as it would have if it were such Lender hereunder; provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Administrative Agent, the Lenders and the Issuing Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) no such sub-participation shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries. Any agreement pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right
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and responsibility to enforce the obligations of the Borrower hereunder, including, without limitation, the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such sub-participation agreement may provide that such Lender will not agree to any modification, amendment or waiver of this Agreement described in clause (i), (ii), (iii) or (iv) of Section 8.05 without the consent of the Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 8.03(c) (subject to the requirements and limitations therein, including the requirements under Section 2.16(b) (it being understood that the documentation required under Section 2.16(b) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.23 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.16 or 2.17, with respect to any sub-participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable sub-participation. Each Lender that sells a sub-participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) or Proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended, successor or final version). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such sub-participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(d)    Lender Treated as Owner. The Administrative Agent, the Issuing Lenders and the Borrower may, for all purposes of this Agreement, treat any Lender as the owner and holder of LC Exposure and Revolving Advances until written notice of assignment shall have been received by them.
(e)    No Right to Greater Payment. No assignee, Participant or other transferee of any Lender’s rights shall be entitled to receive any greater payment under Section 2.17 than such Lender would have been entitled to receive with respect to the rights transferred, unless such transfer is made (i) with the Borrower’s prior written consent (which consent shall not be unreasonably withheld) or by reason of the provisions of this Agreement requiring such Lender to designate a different Lending Office under certain circumstances, or (ii) at a time when the circumstances giving rise to such greater payment did not exist.
(f)    Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
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(g)    Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Revolving Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(h)    Disqualified Competitors.
(i)    No assignment or participation shall be made to any Person that was a Disqualified Competitor as of the date (the “Trade Date”) on which the assigning Lender entered into a binding agreement to sell and assign or grant a participation in all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment or participation in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified Competitor for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee or Participant that becomes a Disqualified Competitor after the applicable Trade Date (including as a result of the delivery of a written supplement to the list of “Disqualified Competitors” referred to in, the definition of “Disqualified Competitor”), (x) such assignee or Participant shall not retroactively be disqualified from becoming a Lender or Participant and (y) the execution by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Competitor. Any assignment or participation in violation of this clause (h)(i) shall not be void, but the other provisions of this clause (h) shall apply.
(ii)    If any assignment or participation is made to any Disqualified Competitor without the Borrower’s prior written consent in violation of clause (i) above, or if any Person becomes a Disqualified Competitor after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Competitor and the Administrative Agent, require such Disqualified Competitor to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 8.06), all of its interest, rights and obligations under this Agreement to one or more Persons (other than any entity described in Sections 8.06(b)(D), (E), (F), (G) or (H)) at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Competitor paid to acquire such interests, rights and obligations in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder.
(iii)    Notwithstanding anything to the contrary contained in this Agreement, Disqualified Competitors to whom an assignment or participation is made in violation of clause (i) above (A) will not have the right to (x) receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Competitor will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Competitors consented to such matter and (y) for purposes of voting on any plan of
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reorganization, each Disqualified Competitor party hereto hereby agrees (1) not to vote on such plan of reorganization, (2) if such Disqualified Competitor does vote on such plan of reorganization notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other applicable laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan of reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any similar provision in any other applicable laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).
(iv)    The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Competitors provided by the Borrower and any updates thereto from time to time (collectively, the “DQ List”) on any electronic platform, including that portion of such electronic platform that is designated for “public side” Lenders and/or (B) provide the DQ List to each Lender or potential Lender requesting the same.
(v)    The Administrative Agent and the Lenders shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Competitors. Without limiting the generality of the foregoing, neither the Administrative Agent nor any Lender shall (x) be obligated to ascertain, monitor or inquire as to whether any other Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Revolving Advances, or disclosure of confidential information, by any other Person to any Disqualified Competitor.
(i)    Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices in New York City a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Revolving Advances owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
SECTION 8.07.    Collateral.
Each of the Lenders represents to the Administrative Agent and each of the other Lenders that it in good faith is not relying upon any “margin stock” (as defined in Regulation U) as collateral in the extension or maintenance of the credit provided for in this Agreement.
SECTION 8.08.    Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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SECTION 8.09.    Counterparts; Effectiveness.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 8.01), certificate, request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each other Loan Party hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Borrower and the other Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (ii) agrees that the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (iii) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (iv) waives any claim against any Lender-Related Person for any Liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf, or any other electronic means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of the Borrower and/or any other Loan Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
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SECTION 8.10.    Confidentiality.
In accordance with normal procedures regarding proprietary information supplied by customers, each of the Lenders agrees to keep confidential information relating to the Borrower or any Subsidiary received pursuant to or in connection with this Agreement and the transactions contemplated hereby (other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry) (the “Information”), provided that nothing herein shall be construed to prevent the Administrative Agent, any Issuing Lender or any Lender from disclosing such Information (i) upon the order of any court or administrative agency, (ii) upon the request or demand of any regulatory agency or authority having jurisdiction over the Administrative Agent, such Issuing Lender or such Lender or any of their respective Affiliates (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) which has been publicly disclosed (other than as a result of a breach of this Section), (iv) which has been lawfully obtained on a nonconfidential basis by the Administrative Agent, any Issuing Lender or any of the Lenders from a Person other than the Borrower, any Subsidiary, the Administrative Agent, any Issuing Lender or any other Lender, (v) (1) to any Participant in or assignee of, or prospective Participant in or assignee of, all or any part of the rights and obligations of the Administrative Agent, such Issuing Lender or such Lender under this Agreement (it being understood that the DQ List may be disclosed to any assignee or Participant, or prospective assignee or Participant, in reliance on this clause (v)) or (2) to any actual or prospective counterparty (or its advisors) to any securitization, swap or derivative transaction relating to the Borrower, any Subsidiary, and the Obligations (provided that such Participant, assignee or counterparty, or prospective Participant, assignee or counterparty agrees to comply with the confidentiality requirements set forth in this Section 8.10), (vi) to the Administrative Agent’s, such Issuing Lender’s or such Lender’s independent auditors or outside legal counsel, (vii) to its Affiliates (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (viii) to any other party to this Agreement, (ix) with the consent of the Borrower, (x) on a confidential basis to any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided for herein or (xi) to the extent required in connection with the exercise of any remedies, the enforcement of rights hereunder or any litigation relating to this Agreement to which the Administrative Agent, such Issuing Lender or such Lender is a party (and the Administrative Agent, such Issuing Lender or such Lender shall use its commercially reasonable efforts to give prior notice of any such disclosure under this clause (xi) to the extent permitted by applicable law; provided that the disclosing party shall have no liability to the Borrower as a result of any failure to provide such prior notice).
Each of the Administrative Agent, the Lenders and the Issuing Lenders acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable law, including Federal and state securities laws.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN THIS SECTION 8.10 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
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ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
SECTION 8.11.    Captions.
All Section headings are inserted for convenience of reference only and shall not be used in any way to modify, limit, construe or otherwise affect this Agreement.
SECTION 8.12.    Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 8.13.    Integration.
All exhibits to a Loan Document shall be deemed to be a part thereof. The Loan Documents embody the entire agreement and understanding among the Borrower, the Administrative Agent, the Issuing Lenders and the Lenders with respect to the subject matter thereof and supersede all prior agreements and understandings among the Borrower, the Administrative Agent and the Lenders with respect to the subject matter thereof.
SECTION 8.14.    Consent To Jurisdiction; Waiver Of Venue.
(a)    THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such Federal (to the extent permitted by law) or New York State court. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
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PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b)    THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (a) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c)    Each of the Lenders and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law provisions of any applicable Loan Document, any claims brought against the Administrative Agent by any Secured Party relating to this Agreement, any other Loan Document, the Collateral or the consummation or administration of the transactions contemplated hereby or thereby shall be construed in accordance with and governed by the law of the State of New York.
SECTION 8.15.    Service of Process.
EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 8.01. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 8.16.    No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Joint Lead Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, each of the Administrative Agent, each Joint Lead Arranger and each Lender is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Administrative Agent nor any Joint Lead Arranger nor any Lender has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent or any Joint Lead Arranger or any Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent nor any Joint Lead Arranger nor any
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Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent, the Joint Lead Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Administrative Agent nor any Joint Lead Arranger nor any Lender has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent, the Joint Lead Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that the Borrower may have against the Administrative Agent, the Joint Lead Arrangers and the Lenders with respect to any breach or alleged breach of any advisory, agency or fiduciary duty.
SECTION 8.17.    WAIVER OF TRIAL BY JURY.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.18.    Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Revolving Advances or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
SECTION 8.19.    Judgment Currency.
(a)    If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of
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exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase such specified currency with such other currency in New York, New York at 12:00 noon (New York City time) on the Business Day preceding that on which final judgment is given.
(b)    The Borrower’s obligations hereunder shall be required to be satisfied in the applicable specified currency. The obligation of the Borrower in respect of any sum due from it to any Credit Party hereunder will, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent the recipient thereof may in accordance with normal banking procedures purchase the specified currency (after subtracting all expenses incurred in converting such currency to the specified currency) with such other currency on the Business Day immediately following such receipt; if the amount of the specified currency so purchased is less than the sum originally due to the recipient in the specified currency, the Borrower agrees, as a separate obligation and notwithstanding any judgment, to indemnify the recipient against such loss, and, if the amount of the specified currency so purchased exceeds the sum originally due to the recipient in the specified currency, the recipient agrees to remit to the Borrower such excess (after subtracting all expenses incurred in converting such currency to the specified currency).
(c)    The agreements in this Section 8.19 shall survive payment of any such judgment.
SECTION 8.20.    USA Patriot Act.
Each Lender that is subject to the Patriot Act (as hereinafter defined) and the requirements of the Beneficial Ownership Regulation and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”) and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the Borrower and each Related Entity, which information includes the name, address and tax identification number of the Borrower and each Related Entity and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and each Related Entity in accordance with the Patriot Act and the Beneficial Ownership Regulation and other applicable “know your customer” and anti-money laundering rules and regulations. The Borrower will, and will cause each of its Subsidiaries to, provide, to the extent commercially reasonable or required by requirements of law, such information and take such actions as are reasonably requested by the Administrative Agent or any Lender to assist the Administrative Agent and the Lenders in maintaining compliance with the Patriot Act.
SECTION 8.21.    Acknowledgement Regarding Any Supported QFCs.

To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
SECTION 8.22.    Acknowledgement and Consent to Bail-In of Affected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)    the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)    the effects of any Bail-in Action on any such liability, including, if applicable:
(i)    a reduction in full or in part or cancellation of any such liability;
(ii)    a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii)    the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
SECTION 8.23.    Appointment for Perfection
.
Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative Agent and the Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable law can be perfected only by possession or control. Should
128

any Lender (other than the Administrative Agent) obtain possession or control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
SECTION 8.24.    Release of Subsidiary Guarantors
.
During any Collateral Period:
(a)    At the request of the Borrower, a Subsidiary Guarantor shall be released from its obligations under the Subsidiary Guaranty upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary, without any further action by any Person; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. In connection with any termination or release pursuant to this Section, the Administrative Agent shall (and is hereby irrevocably authorized by each Lender to) execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(b)    Further, the Administrative Agent may (and is hereby irrevocably authorized by each Lender to), upon the request of the Borrower, release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty if such Subsidiary Guarantor is no longer a Material Domestic Subsidiary.
(c)    At such time as the principal and interest on the Revolving Advances, all LC Disbursements, the fees, expenses and other amounts payable under the Loan Documents and the other Secured Obligations (other than Secured Swap Obligations not yet due and payable, Secured Banking Services Obligations not yet due and payable, Secured Bilateral LC Obligations not yet due and payable, Unliquidated Obligations for which no claim has been made and other Obligations expressly stated to survive such payment and termination) shall have been paid in full in cash, the Commitments shall have been terminated and no Letters of Credit shall be outstanding, the Subsidiary Guaranty and all obligations (other than those expressly stated to survive such termination) of each Subsidiary Guarantor thereunder shall automatically terminate, all without delivery of any instrument or performance of any act by any Person.
(d)    At the request of the Borrower, a Subsidiary Guarantor shall be released from its obligations under the Subsidiary upon the occurrence of a Collateral Release Event in accordance with the terms and conditions of Section 5.14(f).
SECTION 8.25.    Termination of Fluor B.V. as Borrower
.
Each party hereto acknowledges and agrees that Fluor B.V. has been terminated as a Borrower under the Existing Credit Agreement concurrently with the effectiveness of this Agreement on the Closing Date. The Borrower represents and warrants that no Loans made to Fluor B.V. under the Existing Credit Agreement are outstanding as of the date hereof and that all amounts payable by Fluor
129

B.V. in respect of interest and/or fees, if any, pursuant to the Existing Credit Agreement have been paid in full on or prior to the date hereof.
SECTION 8.26.    Termination of Commitments Under Existing $1.8B Credit Agreement
.
The Lenders hereunder that are party to the Existing $1.8B Credit Agreement constitute the “Required Lenders” under (and as defined in) the Existing $1.8B Credit Agreement. Each of the signatories hereto that is also a party to the Existing Credit Agreement hereby agrees that, concurrently with the effectiveness of this Agreement on the Closing Date, all of the “Commitments” under (and as defined in) the Existing $1.8B Credit Agreement are terminated and cancelled automatically and, notwithstanding Section 2.04(c) of the Existing $1.8B Credit Agreement, hereby agrees that (i) the required advance notice period in connection with the termination of the “Commitments” under the Existing $1.8B Credit Agreement is waived and the notice required by such Section 2.04(c) of the Existing $1.8B Credit Agreement may be delivered instead on the Closing Date and (ii) any such notice delivered by the Borrower in respect of such terminations of such “Commitments” may be conditioned on the effectiveness of this Agreement.
ARTICLE IX

BORROWER GUARANTEE
During any Collateral Period:
In order to induce the Lenders to extend credit to the Borrower hereunder and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Borrower hereby absolutely and irrevocably and unconditionally guarantees, as a primary obligor and not merely as a surety, the payment when and as due of the Specified Ancillary Obligations of the Subsidiaries. The Borrower further agrees that the due and punctual payment of such Specified Ancillary Obligations may be extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Specified Ancillary Obligation.
The Borrower waives presentment to, demand of payment from and protest to any Subsidiary of any of the Specified Ancillary Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of the Borrower hereunder shall not be affected by (a) the failure of any applicable Lender (or any of its Affiliates) to assert any claim or demand or to enforce any right or remedy against any Subsidiary under the provisions of any Banking Services Agreement, any Swap Agreement, any Bilateral LC or otherwise; (b) any extension or renewal of any of the Specified Ancillary Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement, any Bilateral LC or other agreement; (d) any default, failure or delay, willful or otherwise, in the performance of any of the Specified Ancillary Obligations; (e) the failure of any applicable Lender (or any of its Affiliates) to take any steps to perfect and maintain any security interest in, or to preserve any rights to, any security or collateral for the Specified Ancillary Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the Specified Ancillary Obligations; (g) the enforceability or
130

validity of the Specified Ancillary Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Specified Ancillary Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Specified Ancillary Obligations, for any reason related to this Agreement, any other Loan Document, any Banking Services Agreement, any Swap Agreement, any Bilateral LC or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor of the Specified Ancillary Obligations, of any of the Specified Ancillary Obligations or otherwise affecting any term of any of the Specified Ancillary Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of the Borrower or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of the Borrower to subrogation.
The Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Specified Ancillary Obligations or operated as a discharge thereof) and not merely of collection, and waives any right to require that any resort be had by any applicable Lender (or any of its Affiliates) to any balance of any deposit account or credit on the books of the Administrative Agent, any Issuing Lender or any Lender in favor of any Subsidiary or any other Person.
The obligations of the Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Specified Ancillary Obligations, any impossibility in the performance of any of the Specified Ancillary Obligations or otherwise.
The Borrower further agrees that its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Specified Ancillary Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Specified Ancillary Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by any applicable Lender (or any of its Affiliates) upon the insolvency, bankruptcy or reorganization of any Subsidiary or otherwise (including pursuant to any settlement entered into by a holder of Specified Ancillary Obligations in its discretion).
In furtherance of the foregoing and not in limitation of any other right which any applicable Lender (or any of its Affiliates) may have at law or in equity against the Borrower by virtue hereof, upon the failure of any Subsidiary to pay any Specified Ancillary Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, the Borrower hereby promises to and will, upon receipt of written demand by any applicable Lender (or any of its Affiliates), forthwith pay, or cause to be paid, to such applicable Lender (or any of its Affiliates) in cash an amount equal to the unpaid principal amount of such Specified Ancillary Obligations then due, together with accrued and unpaid interest thereon. The Borrower further agrees that if payment in respect of any Specified Ancillary Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Specified Ancillary Obligation in such currency or at such place of payment shall be impossible or, in the reasonable judgment of any applicable Lender (or any of its Affiliates), disadvantageous to such applicable Lender (or any of its Affiliates) in any material respect, then, at the election of such applicable Lender, the Borrower shall make payment of such Specified Ancillary
131

Obligation in Dollars (based upon the Dollar Equivalent of such Specified Ancillary Obligation on the date of payment) and/or in New York, New York or such other location as is designated by such applicable Lender (or its Affiliate) and, as a separate and independent obligation, shall indemnify such applicable Lender (and any of its Affiliates) against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Borrower of any sums as provided above, all rights of the Borrower against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Specified Ancillary Obligations owed by such Subsidiary to the applicable Lender (or its applicable Affiliates).
The Borrower hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Subsidiary Guarantor to honor all of its obligations under the Subsidiary Guaranty in respect of Specified Swap Obligations (provided, however, that the Borrower shall only be liable under this paragraph for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this paragraph or otherwise under this Article IX voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The Borrower intends that this paragraph constitute, and this paragraph shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Subsidiary Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act
Nothing shall discharge or satisfy the liability of the Borrower hereunder except the full performance and payment in cash of the Secured Obligations.
[signature pages follow]

132

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
FLUOR CORPORATION,
as the Borrower


By:     /s/ James M. Lucas            
Name:    James M. Lucas
Title:    Senior Vice President and Treasurer


Address:


6700 Las Colinas Boulevard
Irving, Texas 75039
Attention: Jim M. Lucas
Telecopier: (469) 398-7285
Electronic Mail: jim.lucas@fluor.com
Website Address: www.fluor.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation
Exhibit 10.48
    BNP PARIBAS, as Administrative Agent, an Issuing Lender and individually as a Lender
By:/s/ P. Nicholas Rogers    
    Name: P. Nicholas Rogers
    Title: Managing Director
By:/s/ Karim Remtoula    
    Name: Karim Remtoula
    Title: Vice President

Addresses for Notices to BNPP as Administrative Agent:
BNP Paribas
787 Seventh Avenue
New York, NY 10019

Attention: Nicholas Rogers
Electronic Mail: nicholas.rogers@us.bnpparibas.com

Attention: Kyle Fitzpatrick
Electronic Mail: kyle.fitzpatrick@us.bnpparibas.com

Attention: Zhiping Jin
Electronic Mail: zhiping.jin@us.bnpparibas.com

With copies to:





Attention:  Dina Wilson, Loan Servicing
Telecopier: (201) 850-4020
Electronic Mail:
dl.nyls.agency.support@americas.bnpparibas.com


Addresses for Notices to BNPP as a Lender and as an Issuing Lender and for Other Notices relating to Letters of Credit:
BNP Paribas
787 Seventh Avenue
New York, NY 10019

Attention: Nicholas Rogers
Electronic Mail: nicholas.rogers@us.bnpparibas.com

Attention: Kyle Fitzpatrick
Electronic Mail: kyle.fitzpatrick@us.bnpparibas.com

Attention: Zhiping Jin
Electronic Mail: zhiping.jin@us.bnpparibas.com
Attention: Deborah Scholl
Electronic Mail: deborah.scholl@us.bnpparibas.com


With copies to:

BNP Paribas RCC, Inc., as agent for BNP Paribas
525 Washington Boulevard
Jersey City, New Jersey 07310

Attention: Terri Knuth
Electronic Mail:
terri.knuth@us.bnpparibas.com;
dl.mo.agency.services@us.bnpparibas.com

Attention: Maria Albuquerque
Telecopier: (201) 616-7913
Electronic Mail:
NYTFStandby@us.bnpparibas.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation



For a notification of the DQ List:

BNP Paribas
787 Seventh Avenue
New York, NY 10019

Attention: Nicholas Rogers
Electronic Mail: nicholas.rogers@us.bnpparibas.com

Attention: Kyle Fitzpatrick
Electronic Mail: kyle.fitzpatrick@us.bnpparibas.com

Attention: Zhiping Jin
Electronic Mail: zhiping.jin@us.bnpparibas.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


BANK OF AMERICA, N.A.,
    as Syndication Agent, as an Issuing Lender and individually as a Lender
By:/s/ Thor O’Connell    
Name: Thor O’Connell
Title: Vice President



Addresses for Notices:
Bank of America, N.A.
_______________
Bank of America, N.A.
Mail Code: NY1-100-35-07
Bank of America Tower
One Bryant Park
New York, NY 10036

Attention: Thor O’Connell______
Electronic Mail: thor.oconnell@bofa.com
CITIBANK, N.A.,
Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


    as a Co-Documentation Agent and individually as a Lender
By:/s/ Susan Olsen    
Name: Susan Olsen
Title: Vice President



Address for Notices:
Citibank, N.A.
1 Penns Way
Ops II
New Castle, DE 19720

Attention: Loan Admin
Electronic Mail: LoanOrigination.Team3@Citi.com
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


    as a Co-Documentation Agent, as an Issuing Lender and individually as a Lender
By:/s/ Greg Strauss    
Name: Greg Strauss
Title: Managing Director



Address for Notices:
_______________________
Wells Fargo Bank, National Association
90 S 7th St, Floor 15 – MAC N9305-152
Minneapolis, MN 55402-3903

Attention: Greg Strauss
Electronic Mail: Gregory.j.strauss@welssfargo.com
MUFG BANK, LTD.,
Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


    as a Lender
By:/s/ Samantha Schumacher    
Name: Samantha Schumacher
Title: Authorized Signatory



Address for Notices:
MUFG Bank, Ltd.
227 West Monroe Street, Suite 1550
Chicago, IL 60606-5001

Attention: Samantha Schumacher
Electronic Mail: sschumacher@us.mufg.jp

Attention: Dylan Bishop
Electronic Mail: dbishop@us.mufg.jp

Attention: Rick Coffey
Electronic Mail: rcoffey@us.mufg.jp

Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


SUMITOMO MITSUI BANKING CORPORATION,
    as a Lender
By:/s/ Michael Maguire    
Name: Michael Maguire
Title: Managing Director



Address for Notices:
Sumitomo Mitsui Banking Corporation
277 Park Avenue
New York, NY 10172

Attention: Kelli Kandow
Electronic Mail: Kelli_Kandow@smbcgroup.com

Attention: Minxiao Tian
Electronic Mail: Minxiao_Tian@smbcgroup.com

Attention: Gregory Chen
Electronic Mail: Gregory_Chen@smbcgroup.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


STANDARD CHARTERED BANK,
    as a Lender
By: /s/ James Beck    
Name: James Beck
Title: Associate Director



Address for Notices:
Standard Chartered Bank
1095 Avenue of the Americas, New York NY 10036_________________

Attention: Marchelle Kirby
Electronic Mail: uslpu.ny@sc.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


US BANK NATIONAL ASSOCIATION,
    as a Lender
By:/s/ James Austin    
Name: James Austin
Title: Senior Vice President



Address for Notices:
U.S. Bank National Association
13737 Noel Rd., Suite 800
Dallas, TX 75240

Attention: Susan Romanyak
Electronic Mail: susan.romanyak@usbank.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


REGIONS BANK,
    as a Lender
By:/s/ Derek Miller    
Name: Derek Miller
Title: Director



Address for Notices:
Regions Bank
1717 McKinney Ave, Ste 1100
Dallas, TX 75202_______________________

Attention: Derek Miller
Electronic Mail: Derek.miller@regions.com


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


BANK OF MONTREAL,
    as an Issuing Lender and individually as a Lender
By:/s/ Michael Gift    
Name: Michael Gift
Title: Managing Director



Address for Notices:
Bank of Montreal
115 S. LaSalle Street 20W
Chicago, IL 60603_______________________

Attention: Michael Gift
Electronic Mail: Michael.Gift@bmo.com

Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


COMERICA BANK,
    as a Lender
By:/s/ John Smithson    
Name: John Smithson
Title: Vice President



Address for Notices:
Comerica Bank
1717 Main Street, 4th FL
Dallas, TX 75201______________________

Attention: John Smithson
Electronic Mail: jsmithsoniii@comerica.com



Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


GOLDMAN SACHS BANK, USA,
    as a Lender
By:/s/ Ryan Durkin    
Name: Ryan Durkin
Title: Authorized Signatory



Address for Notices:
Goldman Sachs Bank USA
200 West Street
New York, NY 10282_______________________

Attention: Goldman Sachs Bank USA
Fax: 917-977-3966

Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


BARCLAYS BANK PLC,
    as a Departing Lender

By:/s/ Patricia Oreta    
Name: Patricia Oreta
Title: Director, International Corporate Banking
Executed in New York


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


CREDIT AGRICOLE CORPORATE & INVESTMENT BANK,
    as a Departing Lender

By:/s/ Jill Wong    
Name: Jill Wong
Title: Director

By:/s/ Gordon Yip    
Name: Gordon Yip
Title: Director



Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


HSBC BANK USA, NATIONAL ASSOCIATION,
    as a Departing Lender

By:/s/ Lauren Steiner    
Name: Lauren Steiner
Title: Vice President



Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


ING BANK N.V., DUBLIN BRANCH,
    as a Departing Lender

By:/s/ Sean Hassett    
Name: Sean Hassett
Title: Director

By:/s/ Padraig Matthews    
Name: Padraig Matthews
Title: Director



Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


INTESA SANPAOLO S.P.A.,
    as a Departing Lender

By:/s/ Alessandro Toigo    
Name: Alessandro Toigo
Title: Head of Corporate Desk

By:/s/ Jennifer Feldman Facciola    
Name: Jennifer Feldman Facciola
Title: Relationship Manager


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


LLOYDS BANK CORPORATE MARKETS PLC,
    as a Departing Lender

By:/s/ Tina Wong    
Name: Tina Wong
Title: Assistant Vice President

By:/s/ Allen McGuire    
Name: Allen McGuire
Title: Assistant Vice President


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


THE BANK OF NOVA SCOTIA,
    as a Departing Lender

By:/s/ Todd Kennedy    
Name: Todd Kennedy
Title: Director



Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation


The undersigned Departing Lender hereby acknowledges and agrees that, from and after the Closing Date, it is no longer a party to the Existing Credit Agreement or any of the “Loan Documents” (as defined therein) and is not a party to this Agreement other than for the sole purpose of provisions of Section 1.03 expressly applicable to it.


WESTPAC BANKING CORPORATION,
    as a Departing Lender

By:/s/ Richard Yarnold    
Name: Richard Yarnold
Title: Director, Corporate & Institutional Banking


Signature Page to
Second Amended and Restated Revolving Loan And Letter Of Credit Facility Agreement
Fluor Corporation

Schedule 1.01(a)
COMMITMENTS AND APPLICABLE PERCENTAGES
Lender Aggregate Commitment Amount of Aggregate Commitment Attributable to Revolving Facility Sublimit Applicable Percentage
BNP Paribas $225,000,000.00 $136,363,636.36 13.636363636%
Bank of America, N.A. $225,000,000.00 $136,363,636.36 13.636363636%
Citibank, N.A. $225,000,000.00 $136,363,636.36 13.636363636%
Wells Fargo Bank, National Association $225,000,000.00 $136,363,636.36 13.636363636%
MUFG Bank, Ltd. $125,000,000.00 $75,757,575.76 7.575757576%
Sumitomo Mitsui Banking Corporation $125,000,000.00 $75,757,575.76 7.575757576%
Standard Chartered Bank $100,000,000.00 $60,606,060.61 6.060606061%
U.S. Bank National Association $100,000,000.00 $60,606,060.61 6.060606061%
Regions Bank $100,000,000.00 $60,606,060.61 6.060606061%
Bank of Montreal $100,000,000.00 $60,606,060.61 6.060606061%
Comerica Bank $50,000,000.00 $30,303,030.30 3.030303030%
Goldman Sachs Bank USA $50,000,000.00 $30,303,030.30 3.030303030%
Totals $1,650,000,000.00 $1,000,000,000.00 100.000000000%



Schedule 1.01(a)

Schedule 1.01(b)
EXISTING LETTERS OF CREDIT
Attached



Schedule 1.01(b)


#
Reference number Amount Currency Issue Date Expiry Date
1 37346 100,000.00 USD 24-Feb-17 10-Oct-21
2 3129790 500,000.00 USD 24-Feb-17 14-Nov-20
3 3159913 311,236.00 USD 23-Sep-19 30-Oct-21
4 3159914 311,236.00 USD 23-Sep-19 30-Oct-21
5 3160532 8,000,000,000.00 COP 21-Dec-20 24-Jan-22
6 04116445 42,101,332.00 INR 24-Feb-17 30-Apr-21
7 04120642 300,968,435.00 INR 24-Feb-17 30-May-21
8 04125190 84,940,306.00 INR 24-Feb-17 30-Nov-21
9 04128316 2,774,794.00 USD 24-Feb-17 31-Aug-21
10 04140502 50,187,130.00 INR 24-Feb-17 28-Mar-22
11 04141766 1,323,204.00 USD 24-Feb-17 17-May-21
12 04141768 1,033,499.00 USD 24-Feb-17 17-May-21
13 04142282 513,000.00 USD 24-Feb-17 24-Jun-21
14 04146907 61,820.21 EUR 8-Jun-17 8-Jun-21
15 04149664 3,500,000.00 USD 9-Jan-18 5-Jan-22
16 04149783 39,000.00 QAR 19-Jan-18 19-Jan-22
17 04149900 22,560.00 EUR 30-Jan-18 29-Aug-21
18 04149994 500,000.00 USD 6-Feb-18 30-Apr-21
19 04150434 191,603.50 EUR 12-Mar-18 12-Mar-22
20 04150985 167,655.83 QAR 26-Apr-18 26-Apr-21
21 04150986 432,097.35 QAR 26-Apr-18 26-Apr-21
22 04150987 343,849.84 QAR 26-Apr-18 26-Apr-21
23 04150991 1,192,494.30 QAR 26-Apr-18 26-Apr-21
24 04151816 2,000,000.00 USD 21-Jun-18 21-Jun-21
25 04152021 129,192.86 EUR 9-Jul-18 9-Jul-21
26 04152173 175,764.63 QAR 20-Jul-18 20-Jul-21
27 04152178 101,622.63 QAR 20-Jul-18 20-Jul-21
28 04152179 283,529.99 QAR 20-Jul-18 20-Jul-21
29 04152774 23,235,070.08 CAD 1-Sep-20 17-Oct-21
30 04156229 48,150.00 EUR 10-Jul-19 10-Jul-21
31 04156369 32,400.00 EUR 25-Jul-19 25-Sep-21
32 04156535 48,400.00 EUR 8-Aug-19 9-Apr-21
33 04156746 8,782.50 EUR 30-Aug-19 30-May-21
34 04157165 117,899.70 EUR 16-Oct-19 16-Oct-21
35 04157398 31,500.00 EUR 12-Nov-19 30-Apr-21











    



36 04157728 78,585.50 EUR 5-Dec-19 5-Dec-21
37 04157782 128,012.89 EUR 11-Dec-19 11-Dec-21
38 04158172 79,666.82 EUR 15-Jan-20 15-Jan-22
39 04158173 226,368.00 EUR 15-Jan-20 18-Jul-21
40 04158223 952,076.97 EUR 21-Jan-20 21-Jan-22
41 04158224 1,573,915.93 EUR 21-Jan-20 21-Jan-22
42 04158257 1,507,640.00 CAD 23-Jan-20 1-Nov-21
43 04158261 392,997.00 CAD 23-Jan-20 29-Aug-21
44 04158398 56,240.00 CHF 5-Feb-20 30-Apr-21
45 04158695 629,653.30 CAD 9-Mar-20 10-Aug-21
46 04159281 37,379,941.66 CAD 28-Aug-20 1-Nov-21
47 04159628 80,000.00 EUR 2-Jun-20 21-Jul-21
48 04159658 60,000.00 EUR 5-Jun-20 11-Aug-21
49 04159910 5,600,000.00 USD 3-Jul-20 1-Jul-21
50 04159968 1,505,200.00 USD 14-Jul-20 13-Jul-21
51 04159977 3,469,810.00 CAD 14-Jul-20 20-Aug-21
52 04160040 80,000.00 EUR 23-Jul-20 21-Jul-21
53 04160366 548,902.00 CAD 31-Aug-20 30-Sep-21
54 04160367 1,260,268.30 CAD 28-Aug-20 30-Sep-21
55 04160368 618,764.00 CAD 31-Aug-20 30-Sep-21
56 04160494 50,000.00 KWD 14-Sep-20 28-Mar-21
57 04160698 32,676,816.83 CAD 7-Oct-20 8-Nov-21
58 04160791 7,600,000.00 CAD 19-Oct-20 19-Nov-21
59 04160795 525,000.00 CAD 19-Oct-20 19-Nov-21
60 04160977 15,789,098.60 CAD 5-Nov-20 12-Dec-21
61 04160990 35,730.92 EUR 5-Nov-20 30-May-21
62 04161011 17,481.00 EUR 9-Nov-20 6-Nov-21
63 04161065 150,948.48 EUR 13-Nov-20 16-Sep-21
64 04161079 125,000.00 KWD 13-Nov-20 26-May-21
65 04161086 40,000.00 GBP 16-Nov-20 16-Nov-21
66 04161167 323,624.71 EUR 23-Nov-20 23-Nov-21
67 04161219 30,798.97 EUR 27-Nov-20 27-Nov-21
68 04161325 225,000.00 EUR 8-Dec-20 30-Jul-21
69 04161335 256,120.00 EUR 9-Dec-20 9-Dec-21
70 04161686 41,390.00 EUR 8-Jan-21 8-Jan-22
71 04161774 969,574.00 PEN 19-Jan-21 30-Dec-21
72 04161793 187,452.13 EUR 21-Jan-21 14-Mar-21





73 91891861 1,327,019.00 USD 24-Feb-17 18-May-21
74 91913474 310,000.00 USD 24-Feb-17 10-Mar-21
75 91913899 500,000.00 USD 24-Feb-17 30-Apr-21
76 91917141 1,600,000.00 USD 24-Feb-17 30-Apr-21
77 04109014 25,000,000.00 USD 1-Jul-20 15-Dec-21
78 04139352 890,820.70 AUD 24-Feb-17 30-Nov-21
79 04141107 172,500.00 EUR 24-Feb-17 30-Jul-21
80 04143821 561,840.00 EUR 24-Feb-17 6-Oct-21
81 04144078 10,912.83 EUR 24-Feb-17 25-Oct-21
82 04144590 15,000.00 EUR 24-Feb-17 21-Aug-21
83 04144709 35,174.02 EUR 24-Feb-17 7-Dec-21
84 04145248 11,351.76 EUR 24-Feb-17 18-Jan-22
85 04145433 237,777.47 EUR 24-Feb-17 31-Jan-22
86 04145723 52,500.34 EUR 27-Feb-17 1-Nov-21
87 04145724 7,186.29 EUR 27-Feb-17 1-Nov-21
88 04146278 41,695.98 EUR 17-Apr-17 14-Apr-21
89 04146279 17,805.49 EUR 17-Apr-17 14-Apr-21
90 04146500 38,512.50 EUR 11-May-17 19-Jul-21
91 04146527 35,850.54 EUR 9-May-17 9-May-21
92 04146548 39,610.34 EUR 11-May-17 10-May-21
93 04147480 20,316.12 EUR 27-Jul-17 27-Jul-21
94 04147698 23,383.50 EUR 16-Aug-17 16-Aug-21
95 04147725 53,454.94 EUR 21-Aug-17 21-Aug-21
96 04147726 71,551.70 EUR 21-Aug-17 21-Aug-21
97 04148352 5,518,865.00 USD 13-Oct-17 16-Oct-21
98 04148403 65,470.00 EUR 19-Oct-17 4-Nov-21
99 04148431 20,441,000.00 USD 28-Aug-20 31-Dec-21
100 04149350 35,500.00 EUR 28-Dec-17 28-Feb-21
101 04150152 150,000.00 EUR 21-Feb-18 1-Nov-21
102 04151330 4,280.00 EUR 22-May-18 22-May-21
103 04151488 11,695,162.91 USD 2-Sep-20 1-Jun-21
104 04151492 5,847,581.46 USD 1-Jun-18 1-Jun-21
105 04152394 25,000,000.00 USD 1-Sep-20 30-Jul-21
106 04152554 25,000.00 USD 24-Aug-18 5-Oct-21
107 04152571 97,184.15 PEN 28-Aug-18 1-Oct-21
108 04153174 81,389.50 EUR 19-Oct-18 18-Oct-21
109 04153458 929,851.00 AUD 9-Nov-18 31-Jan-22




110 04153461 929,851.00 AUD 9-Nov-18 28-Feb-21
111 04153490 7,766,175.00 PEN 19-Nov-18 30-Jul-21
112 04153559 6,521.20 EUR 20-Nov-18 29-May-21
113 04153657 27,868.02 EUR 28-Nov-18 3-Apr-21
114 04153747 50,800.00 USD 13-Dec-18 13-Dec-21
115 04153803 50,500.00 EUR 6-Dec-18 30-May-21
116 04154171 80,000.00 EUR 11-Jan-19 11-Jan-22
117 04154490 1,050,105.85 AUD 12-Feb-19 12-Feb-22
118 04154548 31,390.00 EUR 19-Feb-19 1-Nov-21
119 04154706 168,443.19 PEN 1-Mar-19 31-Jan-22
120 04154707 322,620.00 PEN 1-Mar-19 31-Jan-22
121 04154714 147,598.00 EUR 1-Mar-19 20-Nov-21
122 04154737 5,188.58 EUR 4-Mar-19 16-Mar-21
123 04154774 120,000.00 INR 7-Mar-19 1-Nov-21
124 04154944 4,384,000.00 INR 20-Mar-19 30-Jul-21
125 04155587 203,117.00 EUR 9-May-19 1-Nov-21
126 04155672 25,438.25 GBP 16-May-19 31-Jan-22
127 04155830 26,015.67 EUR 31-May-19 31-May-21
128 04155942 47,661.88 EUR 6-Jun-19 6-Jun-21
129 04156545 71,323.97 EUR 8-Aug-19 8-Aug-21
130 04156562 15,000,000.00 USD 1-Sep-20 21-Jul-21
131 04156757 360,000.00 USD 30-Aug-19 30-Aug-21
132 04156875 20,300.00 EUR 13-Sep-19 13-Sep-21
133 04156923 40,000.00 QAR 18-Sep-19 18-Sep-21
134 04157134 35,105.00 EUR 11-Oct-19 28-Mar-21
135 04157159 846,000.00 USD 16-Oct-19 30-Aug-21
136 04157175 640,000.00 USD 17-Oct-19 31-Oct-21
137 04157206 56,397.87 EUR 21-Oct-19 21-Oct-21
138 04157647 23,679.56 EUR 2-Dec-19 2-Dec-21
139 04157751 14,250.00 EUR 9-Dec-19 9-Dec-21
140 04157754 52,571.08 EUR 9-Dec-19 9-Dec-21
141 04157755 101,573.07 EUR 9-Dec-19 30-Nov-21
142 04157886 510,000.00 USD 19-Dec-19 31-Jan-22
143 04157938 6,539.05 EUR 23-Dec-19 23-Dec-21
144 04157942 1,066,701.00 USD 23-Dec-19 31-Aug-21
145 04157946 141,699.73 PEN 23-Dec-19 31-Jan-22
146 04157948 28,178.68 EUR 24-Dec-19 24-Dec-21




147 04158251 48,423.40 EUR 23-Jan-20 23-Jan-22
148 04158414 11,893.00 EUR 6-Feb-20 7-Feb-22
149 04158506 33,638.00 EUR 20-Feb-20 1-Nov-21
150 04158559 217,669.31 PEN 26-Feb-20 16-Apr-21
151 04158632 242,500.00 EUR 4-Mar-20 1-Nov-21
152 04158974 42,196.70 EUR 2-Apr-20 1-May-21
153 04159106 3,712,250.00 PEN 15-Apr-20 30-Jul-21
154 04159504 44,625.00 EUR 22-May-20 22-May-21
155 04159548 60,000.00 EUR 27-May-20 3-Jul-21
156 04159605 32,000.00 EUR 1-Jun-20 30-Jun-21
157 04159645 18,088.00 EUR 4-Jun-20 1-Nov-21
158 04159821 200,000.00 EUR 25-Jun-20 26-Apr-21
159 04159862 211,505.87 PEN 30-Jun-20 30-Jul-21
160 04159964 437,653.49 PEN 21-Jul-20 31-Aug-21
161 04160020 1,305,359.10 EUR 20-Jul-20 9-May-21
162 04160024 3,301,678.80 PEN 21-Jul-20 31-Aug-21
163 04160039 31,612.24 EUR 23-Jul-20 22-Jul-21
164 04160059 95,210.00 EUR 27-Jul-20 27-Jul-21
165 04160103 19,855.00 EUR 30-Jul-20 30-Jun-21
166 04160278 1,260,420.00 PEN 18-Aug-20 30-Sep-21
167 04160405 28,770.00 EUR 2-Sep-20 30-Sep-21
168 04160457 105,800.00 EUR 9-Sep-20 21-Apr-21
169 04160460 124,200.00 EUR 9-Sep-20 12-Apr-21
170 04160464 250,000.00 USD 11-Sep-20 9-Sep-21
171 04160493 500,000.00 EUR 11-Sep-20 30-Jun-21
172 04160614 452,736.00 EUR 25-Sep-20 18-Jul-21
173 04160615 71,213.00 EUR 25-Sep-20 31-Dec-21
174 04160616 92,800.00 EUR 25-Sep-20 30-Apr-21
175 04160620 1,828,550.09 USD 25-Sep-20 1-Feb-22
176 04160697 19,086.41 EUR 6-Oct-20 6-Oct-21
177 04160768 99,765.80 EUR 14-Oct-20 14-Oct-21
178 04160805 50,600.00 EUR 20-Oct-20 20-Oct-21
179 04160850 5,000,000.00 USD 23-Oct-20 3-Jul-21
180 04160890 47,550.72 EUR 29-Oct-20 31-Jan-22
181 04160891 59,658.00 EUR 29-Oct-20 4-Oct-21
182 04160892 127,500.00 EUR 29-Oct-20 1-Mar-21
183 04160893 249,374.85 EUR 29-Oct-20 25-Feb-21




184 04160894 41,562.48 EUR 28-Oct-20 11-Apr-21
185 04160946 80,164.00 EUR 2-Nov-20 30-Sep-21
186 04161019 550,000.00 USD 9-Nov-20 28-Feb-21
187 04161044 19,345.00 AUD 12-Nov-20 10-Nov-21
188 04161063 675,000.00 USD 16-Nov-20 13-Nov-21
189 04161088 470,000.00 USD 16-Nov-20 16-Nov-21
190 04161091 134,250.00 EUR 17-Nov-20 28-Mar-21
191 04161126 12,744,458,327 CLP 19-Nov-20 15-Aug-21
192 04161131 9,454,201.00 USD 19-Nov-20 15-Aug-21
193 04161142 300,000.00 QAR 20-Nov-20 20-Nov-21
194 04161206 59,962.14 EUR 25-Nov-20 25-Nov-21
195 04161208 173,753.33 EUR 25-Nov-20 27-Jan-22
196 04161223 1,127,770.36 EUR 30-Nov-20 31-Jan-22
197 04161224 1,127,770.36 EUR 30-Nov-20 27-Nov-21
198 04161237 364,366,527.00 MXN 30-Nov-20 15-Feb-22
199 04161323 24,764,000.00 USD 8-Dec-20 8-Dec-21
200 04161647 27,740,077.00 USD 5-Jan-21 5-Jan-22
201 04161650 5,830,170,556 CLP 6-Jan-21 6-Jan-22
202 04161732 1,153,644.00 USD 13-Jan-21 13-Jan-22
203 04161735 13,816,295.00 USD 14-Jan-21 13-Jan-22
204 04161809 62,540.00 EUR 21-Jan-21 30-May-21
205 04161810 36,750.00 EUR 21-Jan-21 21-Jan-22
206 04161811 384,636.00 EUR 21-Jan-21 30-Sep-21
207 04161821 30,000.00 EUR 22-Jan-21 22-Jan-22
208 04161822 67,070.59 EUR 22-Jan-21 22-Jan-22
209 04161839 2,706,224.40 USD 27-Jan-21 15-Feb-22
210 04161851 25,000.00 EUR 26-Jan-21 26-Jan-22
211 04161852 86,749.39 EUR 26-Jan-21 30-Sep-21
212 04161853 310,000.00 USD 27-Jan-21 27-Jan-22
213 04161961 216,864.75 EUR 3-Feb-21 30-Aug-21
214 04161992 1,840,465.00 EUR 4-Feb-21 4-Feb-22
215 04161993 920,232.50 EUR 4-Feb-21 4-Feb-22
216 04162024 24,400.00 EUR 9-Feb-21 8-Feb-22
217 04162088 110,000.00 USD 12-Feb-21 15-Feb-24
218 04162090 1,346,865.00 EUR 16-Feb-21 30-Oct-24
219 04162120 2,693,730.00 EUR 17-Feb-21 30-Oct-22



    


Schedule 5.08
EXISTING LIENS
None


Schedule 5.08

Schedule 5.15
EXISTING DEBT
Attached



Schedule 5.15


SCHEDULE 5.15
EXISTING DEBT
BORROWER FINANCIAL INSTITUTION Description Maturity

Fluor Corporation Wells Fargo Bank, N.A., as Trustee $500MM Senior Notes 3.500% 12/24
Fluor Corporation Wells Fargo Bank, N.A., as Trustee EUR500MM Senior Notes 1.750% 3/23
Fluor Corporation Wells Fargo Bank, N.A., as Trustee $600MM Senior Notes 4.250% 9/28
Fluor Corporation IBM Dedicated Leased Servers Maint n/a
Fluor Infrastructure B.V IXAS Gaasperdammerweg B.V. EUR4.0MM Note Payable 2/22
Mecancios Asociados S.A.S. Citibank Colombia COP171.2 B - Working Capital/Overdraft Facility Various
Mecancios Asociados S.A.S. Bancolombia COP72.4 B - Working Capital/Overdraft Facility Various
Mecancios Asociados S.A.S. Banco Davivienda COP8.3B - ST Working Capital/Overdraft Facility Various
Mecancios Asociados S.A.S. Banco Scotiabank Colpartria COP34.25B - ST Working Capital Facility Various
Mecancios Asociados S.A.S. Banco de Occidente COP35.0B - ST Working Capital Facility Various
Mecancios Asociados S.A.S. Various Colombia Banks COP108.1B - Leasing & Renting Facility Various
American Equipment Company - Chile FT Vendor Finance Chile S.A. Financial Leases - Computers 6/23
American Equipment Company - Chile BK S.p.A Financial Leases - Tractors 3/23
American Equipment Company - Chile Catepillar Leasing Chile S.A. Financial Leases - Heavy Equipment Various
Stork Goal JV Pty Ltd Goal Indigenous Services Australia Pty Ltd A$615k JV Loan Agreement Open



Schedule 5.18
EXISTING TRANSACTIONS WITH AFFILIATES
None



Schedule 5.18

Schedule 5.20
EXISTING RESTRICTIVE AGREEMENTS
None


Schedule 5.20

EXHIBIT A

[INTENTIONALLY OMITTED]


A-1

EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]3 hereunder are several and not joint.]4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below the interest in and to all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to that represents the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] identified below (including, without limitation, the Letters of Credit included in such facility) (all of the foregoing being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1.    Assignor[s]:    ______________________________
            ______________________________
2.    Assignee[s]:    ______________________________
            ______________________________
    [for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
3.    Borrower:    Fluor Corporation
4.    Administrative Agent: BNP Paribas as the administrative agent under the Credit Agreement
1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3 Select as appropriate.
4 Include bracketed language if there are either multiple Assignors or multiple Assignees.
B-1


5.    Credit Agreement: Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021, among Fluor Corporation, the Lenders from time to time party thereto and BNP Paribas, as Administrative Agent.
6.    Assigned Interest:




Assignor[s]5



Assignee[s]6
Aggregate
Amount of
Commitments / Revolving Advances
for all Lenders7

Amount of
Commitments / Revolving Advances
Assigned

Percentage
Assigned of
Commitments / Revolving Advances8


CUSIP Number








$_____________
$__________
_________%



$_____________
$__________
_________%



$_____________
$__________
_________%


[7.    Trade Date:    __________________]9
Effective Date: __________________, 202__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Loan Parties and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]

By: _____________________________
    Title:


5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate
7 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
8 Set forth, to at least 12 decimals, as a percentage of the Commitments/Loans of all Lenders thereunder.
9 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
B-2


ASSIGNEE
[NAME OF ASSIGNEE]

By: _____________________________
    Title:
[Consented to and]10 Accepted:

BNP PARIBAS, as
as Administrative Agent and as an Issuing Lender

By: _________________________________
Title:

By: _________________________________
Title:

[OTHER ISSUING LENDERS], as
as an Issuing Lender

By: _________________________________
Title:


10 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
B-3



[Consented to:]11

FLUOR CORPORATION


By: _________________________________
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
11 To be added only if the consent of the Borrower and/or other parties (e.g. Issuing Lenders) is required by the terms of the Credit Agreement.
B-4


FLUOR CORPORATION

SECOND AMENDED AND RESTATED
$1,650,000,000 REVOLVING LOAN AND LETTER OF CREDIT FACILITY AGREEMENT

DATED AS OF FEBRUARY 19, 2021

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION AGREEMENT
1.    Representations and Warranties.
1.1.    Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of Credit Agreement or any other instrument or document delivered pursuant thereto, other than this Assignment and Assumption (herein collectively the “Loan Documents”) or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, (iv) any requirements under applicable law for the Assignee to become a lender under the Credit Agreement or to charge interest at the rate set forth therein from time to time or (v) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2.    Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 8.06(b) of the Credit Agreement (subject to such consents, if any, as may be required under Section 8.06(b) of the Credit Agreement) and under applicable law, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][the relevant] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest on the basis of which it has made such analysis and decision, (vi) it is not a Disqualified Competitor and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, any Arranger, [the][any] Assignor or any other Lender or any of their respective Related Parties, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the
B-5


Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.    Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
3.    General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption and the rights and obligations of the parties hereunder shall be governed by, and construed and enforced in accordance with, the internal laws of the State of New York (including Section 5-1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles. In the event of any inconsistency between this Assignment and Assumption and the Credit Agreement, the provisions of the Credit Agreement shall govern.


B-6

EXHIBIT C
FORM OF [ASSISTANT] SECRETARY’S CERTIFICATE
February 19, 2021
The undersigned, the [Assistant] Secretary of Fluor Corporation, a Delaware corporation (the “Borrower”), hereby certifies pursuant to Section 3.01(a)(ii) of the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement (the “Agreement”; capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms as set forth in the Agreement), dated as of February 19, 2021, among the Borrower, the Lenders thereunder and BNP Paribas, as Administrative Agent, that I am the duly appointed [Assistant] Secretary of the Borrower, and further certify as follows:
1.    Annexed hereto as Annex A is a true, complete and correct copy of all resolutions of the Board of Directors of the Borrower, relating to the Agreement and the transactions contemplated thereby, all of which resolutions are in full force and effect on the date hereof.
2.    Annexed hereto as Annexes B and C, respectively, are true, complete and correct copies of the certificate of incorporation and the by-laws of the Borrower, including, without limitation, all amendments thereof to the date hereof, which certificate of incorporation and by-laws are presently in effect on and as of the date hereof.
3.    The following persons are duly elected or appointed, as the case may be, and qualified officers of the Borrower holding the offices indicated opposite their respective names, and the signatures appearing opposite their respective names and offices are the genuine signatures of such persons, and such persons are authorized to signed the Loan Documents to which the Borrower is a party and request Revolving Advances and Letters of Credit under the Agreement:
Name Title Signature
[_______] [_______]





C-1

IN WITNESS WHEREOF, I have hereunto set my hand as of the date first above written.

______________________________________
Name:
Title:

I, [________], hereby certify that I am the duly elected or appointed, as the case may be, and qualified [________] of the Borrower, as of the date hereof.

_______________________________
Name:
Title:


C-2

ANNEX A

TO

[ASSISTANT] SECRETARY’S CERTIFICATE
RESOLUTIONS




ANNEX B

TO

[ASSISTANT] SECRETARY’S CERTIFICATE
CERTIFICATE OF INCORPORATION




ANNEX C

TO

[ASSISTANT] SECRETARY’S CERTIFICATE
BYLAWS



EXHIBIT D

FORM OF NOTICE OF REVOLVING BORROWING

        [Date]
BNP Paribas, as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below

Attention: [______]
BNP Paribas
787 Seventh Avenue
New York, NY 10019
Telephone: [______]
Telecopier: [______]
E-mail: [______]

FLUOR CORPORATION
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent. The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned Borrower hereby requests a Revolving Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Revolving Borrowing (the “Proposed Revolving Borrowing”):
(a)    The Business Day of the Proposed Revolving Borrowing is _________, 20___.
(b)    The Revolving Advances comprising the Proposed Revolving Borrowing are [Base Rate Revolving Advances] [Eurocurrency Rate Revolving Advances].
(c)    The aggregate principal amount of the Proposed Revolving Borrowing is $__________.
[(d)    The initial Interest Period for each Eurocurrency Rate Revolving Advance made as part of the Proposed Revolving Borrowing is _____ month[s].]
(e)    Agreed Loan Currency: __________
(f)    Funds are requested to be disbursed to the Borrower’s following account:
    ________________
    ________________
Account No. ________________
D-1


The Borrower hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Revolving Borrowing:
D-2


(i)    there is no injunction, writ, preliminary restraining order or other order of any nature issued by any Governmental Authority in any respect directly affecting the transactions provided for herein and no action or proceeding by or before any Governmental Authority shall have been commenced and be pending or, to the knowledge of the Borrower, threatened, seeking to prevent or delay the transactions contemplated by the Loan Documents or challenging any other terms and provisions hereof or thereof or seeking any damages in connection therewith;
(ii)    all representations and warranties of the Borrower contained in Article IV of the Credit Agreement are true and correct;
(iii)     no event has occurred and is continuing, or would result from such Proposed Revolving Borrowing or from the application of the proceeds therefrom, that constitutes a Default;
(iv)     no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents; and
(v)    both before and immediately after giving effect to the Proposed Revolving Borrowing, (a) the Dollar Equivalent of the aggregate Revolving Credit Exposures shall not exceed the Aggregate Commitments, (b) the Dollar Equivalent of the sum of the aggregate outstanding Revolving Advances and the LC Exposure in respect of Financial Letters of Credit shall not exceed the Revolving Facility Sublimit, (c) the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Canadian Dollars shall not exceed the Canadian Dollar Sublimit, and (d) the Dollar Equivalent of the aggregate outstanding Revolving Advances denominated in Pounds Sterling shall not exceed the Pounds Sterling Sublimit.
FLUOR CORPORATION
By:             
    Name:    
    Title:


D-3

EXHIBIT E

FORM OF NOTICE OF CONVERSION/CONTINUATION

        [Date]
BNP Paribas, as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below

Attention: [______]
BNP Paribas
787 Seventh Avenue
New York, NY 10019
Telephone: [______]
Telecopier: [______]
E-mail: [______]

FLUOR CORPORATION
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent. The Borrower hereby gives you notice, irrevocably, pursuant to Section 2.06 of the Credit Agreement that the Borrower hereby requests a conversion or continuation of Revolving Advances under the Credit Agreement, and in that connection sets forth below the information relating to such conversion or continuation:
(a)    The Business Day of the conversion/continuation is _________, ___ 20___.
(b)    The aggregate principal amount and Agreed Loan Currency of Revolving Advances being converted/continued is __________.
(c)    Nature of conversion/continuation:
    [ ] Conversion of Base Rate Revolving Advances to Eurocurrency Rate Revolving Advances
    [ ] Conversion of Eurocurrency Rate Revolving Advances to Base Rate Revolving Advances
    [ ] Continuation of Eurocurrency Rate Revolving Advances as such
(d)    If Revolving Advances are being continued as or converted to Eurocurrency Rate Revolving Advances, the duration of the new Interest Period that commences on the conversion/continuation date is _____ month[s].
E-1


The undersigned hereby certifies that no event has occurred and is continuing, or would result from such conversion or continuation, that constitutes a Default.
E-2


FLUOR CORPORATION
By:             
    Name:    
    Title:    


E-3

EXHIBIT F

FORM OF REVOLVING NOTE
__________, 20__
FOR VALUE RECEIVED, the undersigned, FLUOR CORPORATION (the “Borrower”), hereby promises to pay [LENDER] (the “Lender”), on the Maturity Date (as defined in the Credit Agreement referred to below) the Dollar Equivalent of the principal amount of Revolving Advances (as defined in such Credit Agreement) due and payable by the Borrower to the Lender on the Maturity Date under that certain Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Credit Agreement”; the terms defined therein being used herein as therein defined), among the Borrower, certain Lenders party thereto and BNP Paribas, as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of each Revolving Advance from the date of such Revolving Advance until such principal amount is paid in full, at such interest rates, and at such times as are specified in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in the applicable Agreed Loan Currency in Federal or other immediately available funds at the Administrative Agent’s office specified in the Credit Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Revolving Note (this “Note”) is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and is subject to optional and mandatory prepayment in whole or in part and other benefits as provided therein. Upon the occurrence and during the continuance of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement. Revolving Advances made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender and the Administrative Agent in the ordinary course of business. In the event of any conflict between the accounts and records maintained by the Lender and the accounts and records maintained by the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Revolving Advances and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

F-1


THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
FLUOR CORPORATION
By:             
    Name:    
    Title:    

REVOLVING ADVANCES AND PAYMENTS WITH RESPECT THERETO
F-2



Date Interest Type Amount and Currency of Advance Made End of Interest Period Amount of Principal or Interest Paid This Date Outstanding Principal Balance This Date Notation Made By



F-3

EXHIBIT G-1

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent.
Pursuant to the provisions of Section 2.16(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Revolving Advance(s) (as well as any Note(s) evidencing such Revolving Advance(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on Internal Revenue Service Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]


By:________________________
Name:
Title:

Date: __________ ____, 20___


G-1-1

EXHIBIT G-2

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent.
Pursuant to the provisions of Section 2.16(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on Internal Revenue Service Form W-8BEN or W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]


By:________________________
Name:
Title:

Date: __________ ____, 20___


G-2-1

EXHIBIT G-3

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent.
Pursuant to the provisions of Section 2.16(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an Internal Revenue Service Form W-8BEN or W-8BEN-E or (ii) an Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]


By:________________________
Name:
Title:

Date: __________ ____, 20___


G-3-1

EXHIBIT G-4

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Revolving Loan and Letter of Credit Facility Agreement, dated as of February 19, 2021 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”, the terms defined therein being used herein as therein defined), among the Fluor Corporation (the “Borrower”), certain Lenders party thereto and BNP Paribas, as Administrative Agent.
Pursuant to the provisions of Section 2.16(b) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Revolving Advance(s) (as well as any Note(s) evidencing such Revolving Advance(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Revolving Advance(s) (as well as any Note(s) evidencing such Revolving Advance(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an Internal Revenue Service Form W-8BEN or W-8BEN-E or (ii) an Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN or W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]


By:________________________
Name:
Title:

Date: __________ ____, 20___


G-4-1

EXHIBIT H

FORM OF APPLICATION

Attached
H-1


IMAGE1.JPG

Exhibit 21.1
FLUOR CORPORATION SUBSIDIARIES(1)
[Note: Roman numerals below denote the level of the subsidiary. For example, “I” represents a first tier subsidiary of Fluor Corporation; “II” represents a second tier subsidiary, etc.]
Subsidiary Name Percent Holding
Organized Under
Laws of
I American Equipment Company, Inc. 100.0000 South Carolina
II AMECO COLOMBIA S.A.S. 100.0000 Colombia
II AMECO PANAMA S.A. 100.0000 Panama
II Ameco Services, S. de R.L. de C.V. 72.8690 Mexico
II AMECO Services Inc. 100.0000 Delaware
II American Construction Equipment Company, Inc. 100.0000 California
III AMECO Holdings, Inc. 100.0000 California
IV AMECO Caribbean, Inc. 100.0000 California
V Ameco Inc. 100.0000 Saint Lucia
IV Ameco Equipment Services, Inc. 100.0000 Mauritius
V Servitrade – Servicos, Investimento y Trading Limitada 99.0000 Mozambique
IV AMECO Project Services, Inc. 100.0000 Philippines
IV Ameco Pty. Ltd. 10.0000 Australia
V Ameco Services, S. de R.L. de C.V. 3.0320 Mexico
IV Maquinaria Ameco Guatemala, Limitada 80.0000 Guatemala
IV Servitrade – Servicos, Investimentos y Trading Limitada 1.0000 Mozambique
III Ameco Services S. de R.L. de C.V. 24.0990 Mexico
II Palmetto Seed Capital Ltd. Partnership 7.3529 South Carolina
I Fluor Constructors International, Inc. 100.0000 California
II Fluor Constructors Canada Ltd. 100.0000 New Brunswick
III SSLP/FCCL JV 50.0000 Canada (JV)
II Fluor Management and Technical Services, Inc. 100.0000 California
II Servicios de Construccion del Pacifico, Inc. 100.0000 Delaware
I Fluor Enterprises, Inc. 100.0000 California
II 202 Maintenance Services, LLC 50.0000 Delaware
II AMECODISC, LLC 100.0000 Delaware
II American Bridge/Fluor Enterprises Inc. A Joint Venture 50.0000 California (JV)
II BNA Constructors USA JV 40.0000 Michigan
II Brady-Fluor, LLC 49.0000 Delaware
II Cavendish Fluor Partnership Limited 35.0000 England
II Cibolo Creek Infrastructure Joint Venture 55.0000 Texas (JV)
II Colorado River Constructors JV 55.0000 Texas (JV)

Subsidiary Name Percent Holding
Organized Under
Laws of

II Connect 202 Partners, LLC 38.0000 Delaware
II ConOps Industrial Ltd. 100.0000 New Brunswick
III 684033 N.B. Ltd. 100.0000 New Brunswick
III Pro-V/ConOps JV 50.0000 Canada (JV)
II Daniel International Corporation 100.0000 South Carolina
III Fluor Daniel Engineering, Inc. 100.0000 Ohio
III Fluor Management Company L.P. 46.0676 Delaware
II DAX Industries, Inc. 5.0000 Texas
II Dean / Fluor, LLC 50.0000 Delaware
II Denver Transit Constructors, LLC 40.0000 Delaware
II Denver Transit Holdings, LLC 10.0000 Delaware
III Denver Transit Partners, LLC 100.0000 Delaware
II Denver Transit Operators, LLC 33.3333 Delaware
II Denver Transit Systems, LLC 50.0000 Delaware
II EFDEE Connecticut Architects, Inc. 100.0000 Connecticut
III Industrial Services France SAS 100.0000 France
II EFDEE Engineering Professional Corporation 100.0000 North Carolina
II EFDEE Mississippi Architects, A Professional Corporation 100.0000 Mississippi
II EFDEE New York Engineers & Architects P.C. 100.0000 New York
II ENCEE Architecture Services, P.C. 100.0000 North Carolina
II ESSI, LLC 33.3333 Delaware
II Evergreen Equipment and Personnel Leasing, Inc. 100.0000 Rhode Island
II FCI/Fluor/Parsons, a Joint Venture 30.0000 California (JV)
II FD Architects & Engineers Corporation 100.0000 New Jersey
II FDEE Consulting, Inc. 100.0000 California
II FDHM, Inc. 100.0000 California
II FHdB, LLC 100.00 Texas
III Fluor Brasil Ltda. 00.0010 Brazil
III Fluor Brasil Servicos de Engenharia Ltda 99.9990 Brazil
II Fluor A&E Services, Inc. 100.0000 California
II Fluor Alaska, Inc. 100.0000 Alaska
II Fluor Americas, Inc. 100.0000 California
II Fluor Australia Pty Ltd. 100.0000 Australia
III Giovenco Industries (AUST) Pty Limited 100.0000 Australia
IV Giovenco Industrial Services Pty Ltd. 100.0000 Australia
IV Giovenco/Insulations International JV Pty Ltd. 100.0000 Australia (JV)
IV Giovenco/Insulations International JV Unit Trust 100.0000 Australia (JV)
IV MGJV Pty Ltd. 30.0000 Australia (JV)
III Fluor Construction Services Pty Ltd. 100.0000 Australia
III Fluor Global Services Australia Pty Ltd. 100.0000 Australia
III Fluor Power Services Pty Ltd. 100.0000 Australia
III Fluor Rail Services Pty Ltd. 100.0000 Australia
III Fluor-SKM Iron Ore Joint Venture 55.0000 Australia (JV)
III JGC Fluor Kitimat LNG Project JV 50.0000 Canada (JV)
III Karratha Engineering Services Pty Ltd. 100.0000 Australia
III P.T. Signet Indonesia 10.0000 Indonesia
III Signet Holdings Pty Ltd. 100.0000 Australia
IV P.T. Signet Indonesia 90.0000 Indonesia
2

Subsidiary Name Percent Holding
Organized Under
Laws of

IV Signet Engineering Pty Ltd. 100.0000 Australia
III Stork Technical Services Holding Australia Pty Ltd. 100.0000 Australia
IV Giovenco Industries (AUST) Trust 100.0000 Australia
IV Stork Technical Services Australia Pty Ltd. 100.00 Australia
V Stork GOAL JV Pty Ltd. 50.0000 Australia (JV)
III TRS Staffing Solutions (Australia) Pty Ltd. 100.0000 Australia
II Fluor Boke, Inc. 100.0000 Delaware
II Fluor BNA O&M USA LLC 100.0000 Delaware
III BNA O&M USA General Partnership 40.0000 Delaware
II Fluor Brasil, Ltda. 99.9990 Brazil
III Fluor Engenharia e Projetos S.A. 99.9900 Brazil (JV)
II Fluor Brasil Servicos de Engenharia Ltda 0.0010 Brazil
II Fluor Canada Ltd. 100.0000 New Brunswick
III B.C. Mining Joint Venture 50.0000 Canada (JV)
III BNA Constructors Canada GP 40.0000 Canada
III Fluor BNA Holdco Inc. 100.0000 New Brunswick
IV Fluor BNA GP Inc. 100.0000 New Brunswick
V Bridging North America Holding Corporation 40.0000 Canada
III Fluor BNA O&M GP Inc. 100.0000 New Brunswick
IV BNA O&M General Partnership 40.0000 Canada
III Fluor Daniel International Services, Inc. 10.0000 Barbados
III Fluor Engineering Solutions Ltd. 100.0000 New Brunswick
III Fluor WEP Holdings Inc. 100.0000 New Brunswick
IV Windsor Essex Mobility Group GP 33.3333 Canada
III JGC Fluor BC LNG Joint Venture 60.0000 Canada (JV)
III Parkway Infrastructure Constructors 33.3333 Canada
III TRS Staffing Solutions (Canada) Inc. 100.0000 Canada
III Wright Engineers Chile Limitada 100.0000 Chile
III Wright Engineers Limitada Peru 35.0000 Peru
II Fluor Cebu, Inc. 100.0000 Philippines
II Fluor Chile, Inc. 100.0000 California
III Ameco Chile S.A. 0.0450 Chile
III Fluor Chile Ingenieria y Construccion S.A. 99.0000 Chile
IV CEJV Ingenieria y Construccion Limitada 50.0000 Chile (JV)
IV Fluor Techint SRL Construccion y Servicios Limitada 50.0000 Chile
III Ingenieria y Construccion Fluor Daniel Chile Limitada 99.9000 Chile
II Fluor Colombia Limited 100.0000 Delaware
II Fluor ConOps Limited 100.0000 Guernsey
II Fluor Daniel (Japan) Inc. 100.0000 Japan
II Fluor Daniel (Malaysia) Sdn. Bhd 100.0000 Malaysia
III Technip-Fluor JV 49.0000 Malaysia (JV)
II Fluor Daniel Caribbean, Inc. 100.0000 Delaware
III Duke/Fluor Daniel Caribbean S.E. 00.2500 Puerto Rico
III Fluor Craft Services, Inc. 100.0000 South Carolina
III Fluor Daniel International (Malaysia) Sdn. Bhd. 100.0000 Malaysia
III Fluor Daniel Maintenance Services, Inc. 100.0000 Delaware
3

Subsidiary Name Percent Holding
Organized Under
Laws of

III Fluor Daniel Services Corporation 100.0000 Delaware
III Fluor Facility & Plant Services, Inc. 100.0000 South Carolina
II Fluor Daniel China, Inc. 100.0000 California
II Fluor Daniel China Services, Inc. 100.0000 California
II Fluor Daniel Coal Services International, Inc. 100.0000 Delaware
III Duke/Fluor Daniel International 49.9999 Nevada
IV Duke/Fluor Daniel Caribbean, S.E. 99.0000 Puerto Rico
III Duke/Fluor Daniel LLC 49.9999 Nevada
II Fluor Daniel Construction Company 100.0000 California
II Fluor Daniel Development Corporation 100.0000 California
III Crown Energy Company 100.0000 New Jersey
III FBT Services, Inc. 100.0000 California
III Fluor Daniel Modesto, Inc. 100.0000 California
IV Fluor Services LLC 99.0000 Oman
IV Wilmore/Fluor Modesto LLC 50.0000 California
II Fluor Daniel Eastern, Inc. 100.0000 California
III Fluor Kazakhstan LLC 100.0000 California
III P.T. Fluor Daniel Indonesia 80.0000 Indonesia
IV PT. Mitra Bersama Engineering 99.0000 Indonesia
V PT Singgar Mulia 25.0000 Indonesia
II Fluor Daniel Engineers & Constructors, Inc. 100.0000 Delaware
III Fluor (China) Engineering and Construction Co. Ltd. 100.0000 P.R.C.
II Fluor Daniel Engineers & Constructors, Ltd. 100.0000 California
III CGF Projects Ghana Limited 51.0000 Ghana
III
Technip-Fluor JV (owned by FDE&CL Singapore branch)
49.0000 Singapore (JV)
II Fluor Daniel Engineers & Consultants Ltd. 100.0000 Mauritius
III Fluor Daniel India Private Limited 80.0000 India
III Fluor Mocambique, Limitada 99.0000 Mozambique
III JGC - Fluor Mocambique, Lda 50.0000 Mozambique
II Fluor Daniel Espana, S.A. 100.0000 California
III Fluor Arabia Limited 50.0000 Saudi Arabia
IV WorleyParsons Arabia Limited Fluor Arabia Limited Joint Venture 50.0000 Saudi Arabia (JV)
II Fluor Daniel Eurasia, Inc. 100.0000 California
III Sakhalin Neftegas Technology 50.0000 Russian Federation
II Fluor Engenharia e Projetos S.A. 0.0010 Brazil (JV)
II Fluor Europe B.V. 100.0000 Netherlands
III AG&P Fluor Joint Venture Company, Inc. 50.0000 Philippines (JV)
III Fluor B.V. 100.0000 Netherlands
IV Fluor Consultants B.V. 100.0000 Netherlands
V Fluor Project Services B.V. 100.0000 Netherlands
IV Fluor Infrastructure B.V. 100.0000 Netherlands
V Fluor A27/A1 B.V. 100.0000 Netherlands
VI 3Angle EPCM V.O.F. 50.0000 Netherlands
V 3Angle B.V. 33.3333 Netherlands
V Infraspeed (Holdings) B.V. 3.4800 Netherlands
4

Subsidiary Name Percent Holding
Organized Under
Laws of

V IXAS Gaasperdammerweg B.V. 33.3333 Netherlands
V IXAS Zuid-Oost B.V. 25.0000 Netherlands
V Poort van Den Bosch B.V. 10.0000 Netherlands
V Poort van Den Bosch V.O.F. 10.0000 Netherlands (JV)
V ZuidPlus V.O.F. 42.5000 Netherlands
IV Stork Holding B.V. 100.0000 Netherlands
V Stork B.V. 100.0000 Netherlands
VI Koninklijke Machinefabriek Stork B.V. 100.0000 Netherlands
VI SFS 007.298.633 Pty Limited 100.0000 Australia
VI Stork Technical Services HOLDCO B.V. 100.0000 Netherlands
VII Stork Technical Services Holding B.V 100.0000 Netherlands
VIII Cooperheat Franchising B.V. 100.0000 Netherlands
IX Cooperheat Saudi Arabia Company Ltd. 75.0000 Saudi Arabia
IX Stork Technical Services New Zealand Limited 100.0000 New Zealand
IX Tabarca Consortium 64.0000 Colombia
VIII Corrosion Inspection & Integrity Services SDN Bhd 100.0000 Malaysia
VIII Stork Asset Management Technology B.V. 100.0000 Netherlands
VIII Stork Caspian LLC 49.0000 Azerbaijan (JV)
VIII Stork Gears & Services B.V. 100.0000 Netherlands
5

Subsidiary Name Percent Holding
Organized Under
Laws of

IX Stork Gears & Services Asia Pte. Ltd. 100.0000 Singapore
VIII Stork German Holding GmbH 100.0000 Germany
IX Stork Getriebe & Services GmbH 100.0000 Germany
IX Stork Technical Services GmbH 100.0000 Germany
VIII Stork Intellectual Property B.V. 100.0000 Netherlands
VIII Stork International B.V. 100.0000 Netherlands
IX Rash Inversiones 2007 S.L. 100.0000 Spain
X Mecanicos Asociados S.A.S. 100.0000 Colombia
XI Consorcio Generacion P135 MASA-VEPICA 50.0000 Colombia
XI Consorcio Group Stork 80.0000 Colombia
6

Subsidiary Name Percent Holding
Organized Under
Laws of

XI Consorcio KGM 41.0000 Colombia (JV)
XI Consorcio MASATEC POWER 50.0000 Colombia (JV)
XI Consorcio Stork Y Masa 30.0000 Colombia (JV)
XI Consorcio Turnaround Alliance 30.0000 Colombia (JV)
XI Pipeline Maintenance Alliance 70.0000 Colombia (JV)
XI Stork Peru S.A.C. 99.9999 Peru
7

Subsidiary Name Percent Holding
Organized Under
Laws of

XII Consorcio MSC 80.0000 Peru (JV)
XII Consorcio Stork-TMI Peru 50.0000 Peru
IX Stork Mechanical Works and Maintenance Co. K.S.C.C. 32.0000 Kuwait
IX Stork Technical Services Belgium N.V. 0.0010 Belgium
IX Stork Technical Services Sadaf LLC 99.9900 Azerbaijan
IX Wescon (B) SDN BHD 99.9800 Brunei Darussalam
VIII Stork Mechanical Works and Maintenance Co. K.S.C.C. 17.0000 Kuwait
VIII Stork Nederland B.V. 100.0000 Netherlands
IX AJS V.O.F. 37.5000 Netherlands
8

Subsidiary Name Percent Holding
Organized Under
Laws of

IX DSC Maintenance V.O.F. 50.0000 Netherlands
IX GLT-Plus V.O.F. 25.0000 Netherlands
IX Istimewa Electrotechniek B.V. 100.0000 Netherlands
X Infra Combinatie Zuid-West 25.0000 Netherlands
X Mourik Istimewa Combinatie V.O.F. 50.0000 Netherlands
IX N2ES V.O.F. 50.0000 Netherlands
IX S-M V.O.F. 50.0000 Netherlands
VIII Stork Peru S.A.C. 0.0001 Peru
VIII Stork Power Services & Technology Beijing Limited 100.0000 China
VIII Stork Power Services B.V. 100.0000 Netherlands
IX Stork Integrated Solutions B.V. 100.0000 Netherlands
IX Stork Power Services OOO 99.0000 Russian Federation
IX Stork Power Services USA Holding Inc. 100.0000 Delaware
9

Subsidiary Name Percent Holding
Organized Under
Laws of

X Stork H & E Turbo Blading, Inc. DBA Stork DFW Service Center 100.0000 New York
X Stork Technical Services USA, Inc. 100.0000 Delaware
VIII Stork Technical Services (STS) Ltd. 100.0000 United Kingdom
IX Cooperheat GmbH 100.0000 Germany
X Thermoprozess Cooperheat GmbH 48.0000 Germany
VIII Stork Technical Services Beheer B.V. 100.0000 Netherlands
VIII Stork Technical Services Belgium N.V. 99.9990 Belgium
VIII Stork Technical Services Malaysia Sdn. Bhd. 100.0000 Malaysia
VIII Stork Technical Services Sadaf LLC 0.0100 Azerbaijan
VIII Stork Technical Services Saudi Arabia Co. 55.0000 Saudi Arabia
VIII Stork Technical Services UK Limited 100.0000 United Kingdom
VIII Stork Thermeq B.V. 100.0000 Netherlands
10

Subsidiary Name Percent Holding
Organized Under
Laws of

IX Stork Power Services OOO 1.0000 Russian Federation
VIII Stork TS Holdings Limited 0.0002 United Kingdom
VIII Stork Turbo Blading B.V. 100.0000 Netherlands
VIII Stork Turbo Service B.V. 100.0000 Netherlands
IX Stork Oryx Turbo Machinery Services LLC 49.0000 Qatar
VIII Wescon International B.V. 100.0000 Netherlands
VII Stork TS Holdings Limited 99.9998 United Kingdom
VIII Stork TS UK Limited 100.0000 United Kingdom
IX AAR 2007 Limited 100.0000 Scotland
X Stork Technical Services (Holdings) Limited 50.0000 United Kingdom
XI Stork Technical Services (RBG) Limited 100.0000 United Kingdom
11

Subsidiary Name Percent Holding
Organized Under
Laws of

XII RBG Kazakhstan LLP 100.0000 Kazakhstan
XII Stork Cooperheat Bahrain SPC 100.0000 Bahrain
XII Stork International Limited 100.0000 United Kingdom
12

Subsidiary Name Percent Holding
Organized Under
Laws of

XII Stork Technical Services International Ltd. 100.0000 United Kingdom
XIII Elgin RBG (Pty) Limited 50.0000 Namibia
13

Subsidiary Name Percent Holding
Organized Under
Laws of

XIII Stork Technical Services International South Africa 100.0000 South Africa
14

Subsidiary Name Percent Holding
Organized Under
Laws of

XIII Stork Technical Services Trinidad and Tobago Ltd 8.9700 Trinidad & Tobago
15

Subsidiary Name Percent Holding
Organized Under
Laws of

XII Stork Technical Services Trinidad and Tobago Ltd 91.0300 Trinidad & Tobago
XIII Stork Elecon Ltd 100.0000 Trinidad & Tobago
IX Stork Technical Services (Holdings) Limited 50.0000 United Kingdom
VI Wescon (B) SDN BHD 0.0200 Brunei Darussalam
IV TRS Staffing Solutions B.V. 100.0000 Netherlands
16

Subsidiary Name Percent Holding
Organized Under
Laws of

III Fluor Daniel E&C LLC 99.0000 Russian Federation
III Fluor Engineering N.V. 100.0000 Belgium
III Fluor Finance International B.V/S.a.r.L. 100.0000 Netherlands
III Fluor Island ehf. 100.0000 Iceland
III Fluor S.A. 100.0000 Poland
III Fluor Spain Holding S.L. 4.0000 Spain
IV Fluor Plant Engineering, S.A. 100.0000 Spain
IV Technical Resource Solutions, S.L. 100.0000 Spain
III TRS Consultants-JLT 100.0000 United Arab Emirates
IV TRS Staffing Solutions Mozambique, Limitada 99.0000 Mozambique
II Fluor Daniel Global Limited 100.0000 Guernsey
III Fluor Daniel Global Services Limited 100.0000 Guernsey
II Fluor Daniel Holdings, Inc. 100.0000 California
III Fluor Central Asia Limited Liability Partnership 99.0000 Kazakhstan
III Fluor Daniel Holdings (Botswana) (Pty) Limited 100.0000 Botswana
III Fluor Daniel Holdings Canada Inc. 100.0000 New Brunswick
IV Supreme Modular Fabrication Inc. 50.0000 New Brunswick
III Fluor Investments LLC 100.0000 Delaware
III Fluor Mocambique, Limitada 1.0000 Mozambique
III Fluor Services LLC 1.0000 Oman
III Fluor Uganda Engineering and Construction Limited 99.9999 Uganda
III Fluor-Habboush International Limited 50.0000 Bermuda
III FWPJV Limited 50.0000 England (JV)
IV KPJV Limited 60.0000 England (JV)
III Najmat Al-Sabah for General Services Limited Liability Company, Private Company 100.0000 Iraq
III Qatar National Facility Services 49.0000 Qatar
II Fluor Daniel Illinois, Inc. 100.0000 Delaware
III D/FD Operating Services LLC 49.9999 Delaware
III Duke/Fluor Daniel (GP) 49.9999 North Carolina
II Fluor Daniel India, Inc. 100.0000 California
II Fluor Daniel International Services, Inc. 90.0000 Barbados
II Fluor Daniel Latin America, Inc. 100.0000 California
III Grupo Empresarial Alvica, S.A. 80.0000 Venezuela
IV Grupo Alvica SCS 0.1000 Venezuela
III Servicios Cuyuni, E.T.T., C.A. 80.0000 Venezuela
II Fluor Daniel Mexico S.A. 100.0000 California
III ICA Fluor Daniel, S. de R.L. de C.V. 49.0000 Mexico
IV ICA Fluor Servicios Gerenciales, S.A. de C.V. 98.0000 Mexico
V ICA Fluor Operaciones, S.A. de C.V. 0.0100 Mexico
VI Desarrolladora De Etileno, S. de R.L. de C.V. 20.0000 Mexico
17

Subsidiary Name Percent Holding
Organized Under
Laws of

VI Etileno XXI Contractors SAPI 20.0000 Mexico
VI Etileno XXI Services B.V. 20.0000 Netherlands
VI ICA Stork, S. de R.L. de C.V. 20.0000 Mexico
VI ICA Fluor Petroquimica, S.A. 98.0000 Mexico
VII ICA Stork, S. de R.L. de C.V. 80.0000 Mexico
IV ICA Fluor Servicios Operativos, S.A. de C.V. 99.9900 Mexico
IV IF Proyectos, S.A. 100.0000 Panama
IV IFD Servicios de Ingenieria S.A. de C.V. 99.9600 Mexico
V ICA Fluor Servicios Operativos, S.A. de C.V. 0.0100 Mexico
IV Industrial Del Hierro S.A. de C.V. 99.9900 Mexico
V ICA Fluor Petroquimica S.A. de C.V. 2.0000 Mexico
III IFD Servicios de Ingenieria S.A. de C.V. 0.0200 Mexico
IV Industrial Del Hierro S.A. de C.V. 0.0100 Mexico
III TRS International Group, S. de R.L. de C.V. 0.9540 Mexico
III TRS Staffing Solutions, S. de R.L. de C.V. 0.2000 Mexico
II Fluor Daniel Mining & Metals, Ltd. 100.0000 California
III Ameco Chile S.A. 99.9550 Chile
III Empresa Constructora Fluor Salfa SGO Limitada 50.0000 Chile
III Fluor Chile Ingenieria y Construccion S.A. 1.0000 Chile
IV CEJV Ingenieria y Construccion Limitada 50.0000 Chile (JV)
III Ingenieria y Construccion Fluor Daniel Chile Limitada 0.1000 Chile
II Fluor Daniel Overseas, Inc. 100.0000 California
III Fluor Uganda Engineering and Construction Limited 00.0010 Uganda
III PFD International LLC 50.0000 Delaware
II Fluor Daniel P.R.C., Ltd. 100.0000 California
II Fluor Daniel Pacific, Inc. 100.0000 California
III Fluor Daniel-AMEC Philippines, Inc. 50.0000 Philippines
II Fluor Daniel Pulp & Paper, Inc. 100.0000 California
II Fluor Daniel South America Limited 100.0000 California
III AMECO Peru S.R.L. 99.9500 Peru
II Fluor Daniel Technical Services, Inc. 100.0000 Texas
II Fluor Daniel Venture Group, Inc. 100.0000 California
III Fluor Daniel Asia, Inc. 100.0000 California
IV Duke/Fluor Daniel International Services 49.9999 Nevada
V Duke/Fluor Daniel Caribbean, S.E. 0.5000 Puerto Rico
IV P.T. Fluor Daniel Indonesia 20.0000 Indonesia
V Fluor Aker Solutions Indonesia JV 50.0000 Indonesia (JV)
V PT. MITRA BERSAMA ENGINEERING 99.0000 Indonesia
18

Subsidiary Name Percent Holding
Organized Under
Laws of

VI PT Singgar Mulia 25.0000 Indonesia
IV P.T. Nusantara Power Services 70.0000 Indonesia
III Soli Flo LLC 25.0000 Delaware
IV Soli.Flo, Inc. 100.0000 California
V Soli-Flo Material Transfer, L.P. 1.0000 California
V Soli-Flo Partners, L.P. 1.0000 California
III Soli-Flo Material Transfer, L.P. 24.7500 California
III Soli-Flo Partners, L.P. 24.7500 California
III Springfield Resource Recovery, Inc. 100.0000 Massachusetts
IV Springfield Resource Recovery Limited Partnership 10.0000 Massachusetts
III Springfield Resource Recovery Limited Partnership 90.0000 Massachusetts
II Fluor Daniel, a Professional Architectural Corporation 100.0000 Louisiana
II Fluor Daniel, Inc. - Philippines 99.9900 Philippines
II Fluor Engineering Corporation 100.0000 Michigan
II Fluor Enterprises Group, Inc. 100.0000 Delaware
II Fluor Federal Global Projects, Inc. 100.0000 Delaware
II Fluor Federal Services NWS, Inc. 100.0000 Washington
II Fluor Federal Services, Inc. 100.0000 Washington
III Fluor Energy Technology Services, LLC 100.0000 Delaware
III Fluor Federal Petroleum Operations, LLC 100.0000 Delaware
III Fluor Federal, Inc. 100.0000 Washington
III Fluor Idaho, LLC 100.0000 Delaware
III Fluor Marine Propulsion, LLC 100.0000 Delaware
III Fluor-BWXT Portsmouth LLC 51.0000 Ohio
III Fluor|Westinghouse Liquid Waste Services, LLC 67.0000 Delaware
III Mid-America Conversion Services, LLC 25.0000 Delaware
III Nuclear Production One, LLC 60.0000 Delaware
III Savannah River Nuclear Solutions, LLC 48.0000 South Carolina
II Fluor Federal Services, LLC 100.0000 Delaware
II Fluor Federal Solutions, LLC 100.0000 South Carolina
III Rock Island Integrated Services 51.0000 Illinois (JV)
II Fluor Fernald, Inc. 100.0000 California
III Fluor Environmental Resources Management Services, Inc. 100.0000 Delaware
II Fluor Finance U.S., Inc. 100.0000 Texas
II Fluor Flatiron Balfour Beatty Dragados DBJV 30.0000 California (JV)
II Fluor GmbH 100.0000 Germany
III Arbeitsgemeinschaft BAB A8 Ausbau Augsburg - München 25.0000 Germany
II Fluor Government Group International, Inc. 100.0000 Delaware
III Canadian National Energy Alliance Ltd. 20.0000 Canada
III Fluor Intercontinental Arabian Peninsula LLC 1.0000 Oman
II Fluor Guinea, Inc. 100.0000 Texas
II Fluor Hanford, Inc. 100.0000 Washington
II Fluor Heavy Civil, LLC 100.0000 Delaware
II Fluor Industrial Services Canada Inc. 100.0000 New Brunswick
III Fluor Driver Inc. 50.0000 Alberta
19

Subsidiary Name Percent Holding
Organized Under
Laws of

II Fluor Industrial Services, Inc. 100.0000 Delaware
II Fluor Intercontinental, Inc. 100.0000 California
III Dominican Republic Combined Cycle, LLC 49.0000 Delaware
III FIID LLC 100.0000 Djibouti
III Fluor AMEC II, LLC 55.0000 Delaware
III Fluor Daniel Nigeria Limited 60.0000 Nigeria
III Fluor Government Group-Canada, Inc. 100.0000 New Brunswick
IV ATCO – Fluor Support Solutions Ltd. 49.0000 Alberta
IV Canadian National Energy Alliance Ltd. 20.0000 Canada
III Fluor Intercontinental Arabian Peninsula LLC 99.0000 Oman
III Fluor Intercontinental Germany GmbH 100.0000 Germany
III Fluor Intercontinental Solutions, LLC 100.0000 Delaware
III FLUOR M ltd. 100.0000 Macedonia
III Greenville Technical Services Inc. 100.0000 Delaware
III Grupo Alvica SCS 79.9200 Venezuela
III NWKC LLC 50.0000 Delaware
II Fluor International Limited 100.0000 United Kingdom
III COOEC-Fluor Heavy Industries Co., Ltd. 49.0000 China
III Fluor Industrial Services Limited 100.0000 United Kingdom
IV CSP EG S.L. 65.0000 Equatorial Guinea
IV Energy Resourcing Limited 100.0000 Scotland
III Fluor Limited 100.0000 United Kingdom
IV FDH JV - KNPC AZRP/ZOR 45.0000 Kuwait (JV)
IV FDH JV - KNPC CFP 33.3333 Kuwait (JV)
IV Fluor Pension Trustee Limited 100.0000 England
IV FPMM, XXK (FPMM, LLC-English translation) 100.0000 Mongolia
V Mongolian National Facility Services (MNFS) LLC 49.0000 Mongolia
III Fluor Ocean Services Limited 100.0000 England
III Fluor Projects Limited 100.0000 England
III Genesys Telecommunications Holdings Limited 45.0000 England
IV Genesys Telecommunications Limited 100.0000 England
III Kazakh Projects Joint Venture Limited 50.0000 England (JV)
III KDPC Limited 50.0000 England
III PFD (UK) Limited 50.0000 England
III TRS Staffing Solutions Limited 100.0000 England
II Fluor International, Inc. 100.0000 California
III Fluor Mideast Limited 100.0000 California
III Iraq Construction Ltd. 100.0000 British Virgin Islands
IV Iraq Water General Contracting Company L.L.C. 100.0000 Iraq
II Fluor Ireland Limited 100.0000 Ireland
III TRS Staffing Solutions Limited 100.0000 Ireland
II Fluor Kazakhstan Inc. 100.0000 Texas
II Fluor Maintenance Services, Inc. 100.0000 California
20

Subsidiary Name Percent Holding
Organized Under
Laws of

II Fluor Mediterranean, Inc. 100.0000 California
II Fluor Mideast Limited 100.0000 Bermuda
II Fluor Mining and Metals France, Inc. 100.0000 Delaware
II Fluor NE, Inc. 100.0000 Arizona
III ADP Marshall Contractors, Inc. 100.0000 Delaware
III ADP/FD of Nevada, Inc. 100.0000 Nevada
III M&W/Marshall, a Joint Venture 50.0000 Oregon (JV)
II Fluor Nuclear Services, Inc. 100.0000 Ohio
II Fluor Oak Ridge, LLC 100.0000 Delaware
II Fluor Projects, Inc. 100.0000 Texas
II Fluor Real Estate Services, Inc. 100.0000 Delaware
II Fluor Rovuma, Inc. 100.0000 Delaware
II Fluor Scaffolding, Inc. 100.0000 Delaware
II Fluor Services International, Inc. 100.0000 Nevada
II Fluor Spain Holding S.L. 96.0000 Spain
III Fluor Plant Engineering, S.A. 100.0000 Spain
III Technical Resource Solutions, S.L. 100.0000 Spain
II Fluor SPN, Inc. 100.0000 Delaware
II Fluor Supply Chain Solutions B.V. 100.0000 Netherlands
II Fluor Supply Chain Solutions LLC 100.0000 Delaware
III Acqyre B.V. 100.0000 Netherlands
III Fluor Supply Chain Solutions Singapore Pte. Ltd. 100.0000 Singapore
III IT Development Centre B.V. 100.0000 Netherlands
II Fluor Technip Integrated Joint Venture 50.0000 Texas (JV)
II Fluor Technologies Corporation 100.0000 Delaware
II Fluor Texas, Inc. 100.0000 Texas
III KazakhNefteGasServis Limited Liability Partnership 50.0000 Kazakhstan
II Fluor Transworld Services, Inc. 100.0000 California
II Fluor US Services, Inc. 100.0000 Delaware
II Fluor-Brady, LLC 50.0000 Delaware
II Fluor-Lane, LLC 65.0000 Delaware
II Fluor-Lane 95, LLC 65.0000 Delaware
II Fluor-Lane South Carolina, LLC 55.0000 Delaware
II Fluor-United Asheville, LLC 60.0000 Delaware
II Fluor/HDR Global Design Consultants, LLC 50.0000 Delaware
II FM Operating Services, LLC 50.0000 Delaware
II FMC Holding Company LLC 100.0000 Delaware
III Fluor Management Company L.P. 20.5277 Delaware
II Fru-Con/Fluor Daniel Joint Venture 50.0000 Missouri (JV)
II Global Project Execution, Inc. 100.0000 Delaware
II GLX Constructors, an unincorporated joint venture 25.0000 Massachusetts (JV)
II Goar, Allison & Associates, LLC 100.0000 Texas
II Indo-Mauritian Affiliates Limited 100.0000 Mauritius
III Fluor Daniel India Private Limited 20.0000 India
II Infrastructure Civil Equipment, LLC 100.0000 Delaware
II Integrated Solutions France, Inc. 100.0000 Delaware
II Integrated Solutions Services, Inc. 100.0000 California
21

Subsidiary Name Percent Holding
Organized Under
Laws of

II JGC-FEI Joint Venture 50.0000 Texas (JV)
II JGC/Fluor JV 50.0000 England (JV)
II Lone Star Infrastructure, Joint Venture 45.0000 Texas (JV)
II Lone Star Infrastructure, LLC 45.0000 Delaware
II Middle East Fluor 100.0000 California
II NuScale Holdings Corp. 76.1875 Oregon
II NuScale Power, LLC 91.3575 Oregon
II Oregon Bridge Delivery Partners Joint Venture 50.0000 Oregon (JV)
II P2S Bermuda, LLC 100.0000 Delaware
II Pegasus Link Constructors 55.0000 Texas
II Pegasus Link Constructors - LBJ East Project 55.0000 Texas (JV)
II Pegasus Link Constructors, LLC 55.0000 Delaware
II PESIL Inc. 100.0000 Illinois
II PESNC Inc. 100.0000 North Carolina
II Phoenix Constructors, Joint Venture 32.5000 New York (JV)
II Plant Engineering Services LLC 100.0000 Delaware
II Plant Performance Services International LLC 100.0000 Delaware
III Plant Performance Services Caribbean Limited 100.0000 Trinidad & Tobago
II Plant Performance Services International, Ltd. 100.0000 Bermuda
III Fluor International Nigeria Limited 60.0000 Nigeria
II Provo River Constructors 42.5000 Utah
II Purple Line Transit Constructors, LLC 50.0000 Delaware
II Purple Line Transit Operations, LLC 50.0000 Delaware
II Purple Line Transit Partners, LLC 15.0000 Delaware
II Saddleback Constructors 27.0000 Delaware
II Servicios Mineria, Inc. 100.0000 Delaware
II Soli-Flo LLC 25.0000 Delaware
III Soli.Flo, Inc. 100.0000 Delaware
IV Soli-Flo Material Transfer, L.P. 1.0000 California
IV Soli-Flo Partners, L.P. 1.0000 California
II Soli-Flo Material Transfer, L.P. 24.7500 California
II Soli-Flo Partners, L.P. 24.7500 California
II Strategic Organizational Systems Enterprises, Inc. 100.0000 California
III Strategic Organizational Systems Environmental Engineering Division, Inc. 100.0000 Texas
II Support Services International, LLC 100.0000 South Carolina
II Tappan Zee Constructors, LLC 30.0000 Delaware
II TDF Inc. 100.0000 California
III Fluor Daniel Engineers S.A. (Pty) Limited 100.0000 Liechtenstein
IV Trans-Africa Projects Ltd. 50.0000 Mauritius
IV Trans-Africa Projects (Pty) Ltd. 50.0000 South Africa
III Fluor S.A. (Pty) Limited 100.0000 Liechtenstein
IV Fluor Global Plant Services (Proprietary) Limited 100.0000 South Africa
IV Fluor South Africa Proprietary Limited 90.0000 South Africa
V FLAG Joint Venture 46.8000 South Africa (JV)
22

Subsidiary Name Percent Holding
Organized Under
Laws of

V TRS Staffing Solutions (Pty) Ltd 100.0000 South Africa
IV Fluor-Igoda Projects (Proprietary) Limited 70.0000 South Africa
II Venezco, Inc. 100.0000 California
II
Virta Inc. 100.0000 Delaware
II Walsh-Fluor Design-Build Team 40.0000 Illinois
II Williams Brothers Engineering Company 100.0000 Delaware
III Fluor Argentina, Inc. 100.0000 Delaware
IV Fluor Argentina Inc. Sucursal Argentina – TECHINT Compania Tecnica Internacional S.A.C.I-Union 50.0000 Argentina
III TRS Labour Hire Solutions Pty Ltd 100.0000 Australia
III Williams Brothers Engineering Limited 100.0000 England
III Williams Brothers Process Services, Inc. 100.0000 Delaware
II WODECO Nigeria Limited 60.0000 Nigeria
I Fluor Holding Company LLC 100.0000 Delaware
II Compania Minera San Jose Del Peru S.A. 99.0000 Peru
II Fluor Management Company L.P. 33.4047 Delaware
II Mineral Resource Development Corporation 100.0000 Delaware
III Compania Minera San Jose Del Peru S.A. 1.0000 Peru
III St. Joe Participacoes Ltda. 0.0125 Brazil
II St. Joe Participacoes Ltda 99.9875 Brazil
I TRS Staffing Solutions, Inc. 100.0000 South Carolina
II Agensi Pekerjaan TRS Malaysia SDN. BHD. 49.00 Malaysia
II TRS Craft Services, Inc. 100.0000 Delaware
II TRS FAR EAST SDN. BHD. 100.0000 Malaysia
III Agensi Pekerjaan TRS Malaysia SDN. BHD. 51.0000 Malaysia
II TRS International Group, S. de R.L. de C.V. 99.0460 Mexico
II TRS International Payroll Co. 100.0000 Texas
III TRS Staffing Solutions India Private Limited 0.1000 India
II TRS SA HOLDING COMPANY (PTY) LTD 100.0000 South Africa
III TRS SEARCH AND SELECTION (Pty) Ltd 100.0000 South Africa
II TRS STAFFING SOLUTIONS (PROPRIETARY) LIMITED 100.0000 Botswana
II TRS Staffing Solutions India Private Limited 99.9000 India
II TRS Staffing Solutions Mozambique, Limitada 1.0000 Mozambique
II TRS Staffing Solutions, S. de R.L. de C.V. 99.8000 Mexico
(1) Does not include certain subsidiaries which if considered in the aggregate as a single subsidiary would not constitute a significant subsidiary

23

Exhibit 23.1
Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the following Registration Statements:

1)Registration Statement (Form S-8 No. 333-52992) pertaining to the Fluor Corporation 2000 Executive Performance Incentive Plan and the Fluor Corporation 2000 Restricted Stock Plan for Non-Employee Directors,
2)Registration Statement (Form S-8 No. 333-63868) pertaining to the Fluor Daniel Craft Employees 401(k) Retirement Plan,
3)Registration Statement (Form S-8 No. 333-63870) pertaining to the Fluor Corporation Salaried Employees' Savings Investment Plan,
4)Registration Statement (Form S-8 No. 333-63872) pertaining to the TRS 401(k) Retirement Plan,
5)Registration Statement (Form S-8 No. 333-63858) pertaining to the AMECO and Subsidiaries Salaried Employees 401(k) Retirement Plan,
6)Registration Statement (Form S-8 No. 333-63860) pertaining to the DMIS, Inc. Nissan Maintenance Project Retirement & Savings Plan,
7)Registration Statement (Form S-8 No. 333-63862) pertaining to the Fluor Corporation Employees' Performance Plan,
8)Registration Statement (Form S-8 No. 333-63864) pertaining to the TRS Salaried Employees' 401(k) Retirement Plan,
9)Registration Statement (Form S-8 No. 333-67000) pertaining to the 2001 Key Employee Performance Incentive Plan,
10)Registration Statement (Form S-8 No. 333-84790) pertaining to the Fluor Executive Deferred Compensation Program,
11)Registration Statement (Form S-8 No. 333-105308) pertaining to the Fluor Corporation 2003 Executive Performance Incentive Plan,
12)Registration Statement (Form S-8 No. 333-105309) pertaining to the Fluor Corporation Deferred Directors' Fees Program,
13)Registration Statement (Form S-8 No. 333-120374) pertaining to the TRS 401(k) Retirement Plan,
14)Registration Statement (Form S-8 No. 333-120372) pertaining to the Fluor Corporation Salaried Employees' Savings Investment Plan,
15)Registration Statement (Form S-8 No. 333-115080) pertaining to the Fluor Corporation 2000 Restricted Stock Plan for Non-Employee Directors,
16)Registration Statement (Form S-8 No. 333-148269) pertaining to the Fluor 409A Executive Deferred Compensation Program,
17)Registration Statement (Form S-8 No. 333-148270) pertaining to the Fluor Corporation 409A Deferred Directors' Fees Program,
18)Registration Statement (Form S-8 No. 333-148278) pertaining to the Fluor Executive Deferred Compensation Program,
19)Registration Statement (Form S-8 No. 333-150549) pertaining to the TRS 401(k) Retirement Plan,
20)Registration Statement (Form S-8 No. 333-150550) pertaining to the Fluor Corporation Employees' Savings Investment Plan,
21)Registration Statement (Form S-8 No. 333-150857) pertaining to the Fluor Corporation 2008 Executive Performance Incentive Plan,
22)Registration Statement (Form S-8 No. 333-168411) pertaining to the Fluor Corporation Employees' Savings Investment Plan,
23)Registration Statement (Form S-8 No. 333-188379) pertaining to the Fluor Corporation Amended and Restated 2008 Executive Performance Incentive Plan,
24)Registration Statement (Form S-8 No. 333-195613) pertaining to the Fluor Corporation 2014 Restricted Stock Plan for Non-Employee Directors,
25)Registration Statement (Form S-8 No. 333-217653) pertaining to the Fluor Corporation 2017 Performance Incentive Plan,
26)Registration Statement (Form S-8 No. 333-226546) pertaining to the Fluor Corporation 409A Executive Deferred Compensation Program,
27)Registration Statement (Form S-3 No. 333-226545) and related Prospectus of Fluor Corporation pertaining to the registration of its debt securities, common stock, preferred stock, and warrants, and
28)Registration Statement (Form S-8 No. 333-251426) pertaining to the Fluor Corporation 2020 Performance Incentive Plan,

of our reports dated February 26, 2021, with respect to the consolidated financial statements of Fluor Corporation and the effectiveness of internal control over financial reporting of Fluor Corporation included in this Annual Report (Form 10-K) of Fluor Corporation for the year ended December 31, 2020.


                                         /s/ Ernst & Young LLP

Dallas, Texas
February 26, 2021

Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a) OR RULE 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
I, David E. Constable, certify that:
1.    I have reviewed this annual report on Form 10-K of Fluor Corporation;
2.    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;
3.    Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.    The registrant’s other certifying officer(s) 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)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)    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;
b)    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;
c)    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
d)    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 (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.    The registrant’s other certifying officer(s) 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):
a)    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
b)    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.

Date: February 26, 2021
By: /s/ David E. Constable
David E. Constable
Chief Executive Officer


Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a) OR RULE 15d-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934
I, Joseph L. Brennan, certify that:
1.    I have reviewed this annual report on Form 10-K of Fluor Corporation;
2.    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;
3.    Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.    The registrant’s other certifying officer(s) 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)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a)    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;
b)    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;
c)    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
d)    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 (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5.    The registrant’s other certifying officer(s) 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):
a)    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
b)    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.
Date: February 26, 2021
By: /s/ Joseph L. Brennan
Joseph L. Brennan
Executive Vice President and Chief Financial Officer

Exhibit 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(b) OR RULE 15d-14(b)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND 18 U.S.C. SECTION 1350
In connection with the Annual Report of Fluor Corporation (the “Company”) on Form 10-K for the period ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, David E. Constable, Chief Executive Officer of the Company, certify, for purposes of 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
•    the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
•    the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 26, 2021
By: /s/ David E. Constable
David E. Constable
Chief Executive Officer
A signed original of this written statement required by 18 U.S.C. Section 1350 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.


Exhibit 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(b) OR RULE 15d-14(b)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND 18 U.S.C. SECTION 1350
In connection with the Annual Report of Fluor Corporation (the “Company”) on Form 10-K for the period ended December 31, 2020, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Joseph L. Brennan, Executive Vice President and Chief Financial Officer of the Company, certify, for purposes of 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
•    the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
•    the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: February 26, 2021
By: /s/ Joseph L. Brennan
Joseph L. Brennan
Executive Vice President and Chief Financial Officer
    A signed original of this written statement required by 18 U.S.C. Section 1350 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.