UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): April 28, 2021 (April 22, 2021 )
(Exact Name of Registrant as Specified in Its Charter)
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(State or other Jurisdiction of Incorporation)
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(Commission File No.)
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(I.R.S. Employer Identification No.)
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(Address of Principal Executive Offices)
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(Zip Code)
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(412 ) 825-1000
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or
Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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. ☐
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Item 8.01.
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Other Events
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On April 22, 2021, Westinghouse Air Brake Technologies Corporation (the “Company”) entered into the second amendment (“Amendment No. 2”) to its Credit Agreement, dated as of June 8, 2018 (the “Initial Credit Agreement”) among the Company, Wabtec Netherlands B.V. and the borrowing subsidiaries party thereto, the lenders party thereto, and PNC Bank, National
Association, as administrative agent, as such Initial Credit Agreement was amended on February 22, 2019 by the first amendment thereto (as so amended by the first amendment, the “Credit Agreement”). The amendments introduced by Amendment No. 2, include:
(i) the addition of further exceptions to the current negative covenant limiting the incurrence of subsidiary indebtedness, including
capacity (a) for foreign subsidiaries to incur up to €600.0 million at any one time outstanding and (b) for securitization subsidiaries to engage in securitization transactions in an aggregate amount of up to $300.0 million (including liens on any
associated securitization receivables) at any one time outstanding;
(ii) the addition of a leverage ratio adjustment in connection with our acquisition of Nordco pursuant to which the maximum leverage ratio
permitted adjusts to (x) 3.75 to 1.00 at the end of the fiscal quarter in which such acquisition is consummated and each of the three fiscal quarters immediately following such fiscal quarter and (y) 3.50 to 1.00 at the end of each of the fourth and
fifth full fiscal quarters after the consummation of such acquisition; and
(iii) certain technical and administrative amendments.
Concurrent with entering into Amendment No. 2 to the Credit Agreement, the Company also amended its $600.0 million 364 day credit facility ("364 Day Facility") to make corresponding amendments.
The foregoing is a summary of certain terms and conditions of Amendment No. 2 and is not a complete discussion of the document. Accordingly,
such description of Amendment No. 2 in this Item 8.01 is qualified in its entirety by reference to the full text of Amendment No. 2, a copy of which is filed herewith as Exhibit 10.1.
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Item 9.01.
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Financial Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit
No.
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Description
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Second Amendment to Credit Agreement, dated as of April 22, 2021, among Westinghouse Air Brake Technologies Corporation, Wabtec Netherlands B.V. and the
other borrowing subsidiaries party thereto, the lenders party thereto and PNC Bank, National Association, as Administrative Agent
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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WESTINGHOUSE AIR BRAKE
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TECHNOLOGIES CORPORATION
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By:
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/s/ Patrick D. Dugan
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Patrick D. Dugan
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Executive Vice President and
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Chief Financial Officer
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Date: April 28, 2021
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Exhibit 10.1
EXECUTION VERSION
SECOND AMENDMENT dated as of April 22, 2021 (this “Agreement”), to the Credit Agreement dated as of June 8, 2018, among Westinghouse Air Brake Technologies Corporation, a Delaware
corporation (the “Company”), Wabtec Netherlands B.V., a private limited liability company organized under the laws of the Netherlands (besloten vennootschap met beperkte
aansprakelijkheid) and registered with the Commercial Register of the Dutch Chamber of Commerce under number 65631668 (“Wabtec BV”), the other Borrowing Subsidiaries party thereto from time to time, the Lenders party thereto from
time to time and PNC Bank, National Association, as the administrative agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H :
WHEREAS, the Company, Wabtec BV, the other Borrowing Subsidiaries party thereto from time to time, the Lenders party thereto from to time and the Administrative Agent are party to that certain
Credit Agreement dated as of June 8, 2018 (as amended by the First Amendment dated as of February 22, 2019, and as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Company has requested the Administrative Agent and Lenders amend the existing Credit Agreement as set forth herein; and
WHEREAS, the Administrative Agent and the Lenders party hereto, representing the Required Lenders, are willing to enter into this Agreement upon the terms set forth below.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, each
of the parties hereto hereby covenants and agrees as follows:
1. Definitions. Unless otherwise specifically defined herein, each term used herein which is defined in the Credit Agreement shall have the meaning assigned to such term in the
Credit Agreement. Each reference to “hereof,” “hereunder,” “herein,” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement, any Exhibit or Schedule
thereto or any other Loan Document shall from and after the Second Amendment Effective Date (as defined below) refer to the Credit Agreement as amended hereby.
2. Amendments to Credit Agreement. Subject to the satisfaction of the conditions precedent set forth in Section 4 below, effective as of the Second Amendment Effective Date,
the Credit Agreement (excluding the Schedules and Exhibits thereto, each of which shall remain as in effect immediately prior to the Second Amendment Effective Date) is hereby amended by inserting the language indicated in single underlined text
(indicated textually in the same manner as the following example: single-underlined text or single-underlined text) in Exhibit A hereto and
by deleting the language indicated by strikethrough text (indicated textually in the same manner as the following example: stricken text or stricken
text) in Exhibit A hereto.
3. Representations and Warranties. The Company represents and warrants to the other parties hereto that:
(a) This Agreement has been duly executed and delivered by the Company and is the legal, valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.
(b) The representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (i) in the case of the representations and warranties
qualified as to materiality, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Second Amendment Effective Date (and, for purposes of Section 3.12 of the Credit Agreement, with each reference therein to
the “Effective Date” being deemed to be a reference to the “Second Amendment Effective Date”), except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall
be so true and correct on and as of such prior date.
(c) On and as of the Second Amendment Effective Date, no Default shall have occurred and be continuing.
4. Conditions Precedent. This Agreement and the amendment of the Credit Agreement as set forth in Section 2 hereof shall become effective on the date (such date, the “Second
Amendment Effective Date”) on which each of the following conditions shall be satisfied (or waived in accordance with Section 10.02 of the Credit Agreement):
(a) The Administrative Agent shall have received from the Company, the Required Lenders and the Administrative Agent (i) a counterpart of this Agreement duly executed
by each such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic imaging, including DocuSign) that such party has duly signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a certificate, dated the Second Amendment Effective Date and signed by the chief executive officer or the chief
financial officer of the Company, certifying that, as of the Second Amendment Effective Date, (i) the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations
and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects (and, for purposes of Section 3.12 of the Credit Agreement, with each reference therein to the “Effective Date” being deemed to be a reference
to the “Second Amendment Effective Date”), except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior
date, and (ii) no Default has occurred and is continuing.
(c) All costs, expenses (including reasonable and documented legal fees and expenses) and fees contemplated by the Loan Documents (or separately agreed by the Company
with the Administrative Agent) to be reimbursable or payable to the Administrative Agent or the Lenders shall have been paid on or prior to the Second Amendment Effective Date, in each case, to the extent required to be paid on or prior to the
Second Amendment Effective Date and, in the case of costs and expenses, invoiced at least two Business Days prior to the Second Amendment Effective Date.
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The Administrative Agent shall notify the Company and the Lenders of the Second Amendment Effective Date, and such notice shall be conclusive and binding.
5. Effect of Agreement. The Credit Agreement, as amended by this Agreement, is and shall continue to be in full force and effect and is hereby in all respects ratified and
confirmed. Except as expressly set forth herein, this Agreement shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement
or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Company or any other Loan Party to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Agreement shall constitute a
“Loan Document” for all purposes of the Credit Agreement and the other Loan Documents.
6. No Novation or Mutual Departure. The Company expressly acknowledges and agrees that (a) there has not been, and this Agreement does not constitute or establish, a novation
with respect to the Credit Agreement or any of the Loan Documents, or a mutual departure from the strict terms, provisions, and conditions thereof other than with respect to the amendments in Section 2 above, and (b) nothing in this Agreement
shall, by implication or otherwise, affect, limit, constitute a waiver of or otherwise modify the Company’s, any other Loan Party’s, Administrative Agent’s or any Lender’s rights, remedies or responsibilities under the Credit Agreement or the
other Loan Documents, or at law or in equity. Neither this Agreement nor the effectiveness of the amendments to the Credit Agreement effected hereby shall extinguish the obligations for the payment of money outstanding under the Credit Agreement
and nothing expressed or implied in this Agreement or the Credit Agreement shall be construed as a release or other discharge of the Company or any other Loan Party under the Credit Agreement or any other Loan Document from any of its obligations
and liabilities thereunder, as amended hereby.
7. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. Except as provided in Section 4, this Agreement shall become effective when it shall have been executed by the Administrative Agent and the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of
an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.
8. Section References. Section titles and references used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction
of, or be taken into consideration in interpreting, this Agreement.
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9. Recitals Incorporated Herein. The preamble and the recitals to this Agreement are hereby incorporated herein by this reference.
10. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
11. Governing Law; Jury Trial; Submission to Jurisdiction; Etc. This Agreement shall be governed by, and construed in accordance with, the law of the State of New York. Sections
10.06(b), 10.09 and 10.10 of the Credit Agreement (as amended by this Agreement) are hereby incorporated by reference herein and shall apply hereto as if set forth in full herein, modified mutatis mutandis.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by its duly authorized officer as of the day and year first above written.
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WESTINGHOUSE AIR BRAKE
TECHNOLOGIES CORPORATION
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By:
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/s/ James Kalinovich
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James Kalinovich
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Title:
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Treasurer
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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PNC BANK, NATIONAL ASSOCIATION,
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As Administrative Agent and as a Lender
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By:
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/s/ Kelly Sarver
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Name:
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Kelly Sarver
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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BANK OF AMERICA, N.A.
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By:
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/s/ Stephen J. D’Elia
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Name:
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Stephen J. D’Elia
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: The Bank of Nova Scotia
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By:
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/s/ Catherine Jones
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Name:
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Catherine Jones
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Title:
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Managing Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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BANK OF THE WEST
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By:
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/s/ Philip R. Medsger
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Name:
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Philip R. Medsger
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Title:
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Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: Citibank, N.A.
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By:
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/s/ Michael Saurer
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Name:
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Michael Saurer
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Title:
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Senior Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: CITIZENS BANK, N.A.
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By:
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/s/ A. Paul Dawley
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Name:
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A. Paul Dawley
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Title:
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Senior Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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CREDIT AGRICOLE CORPORATE AND
INVESTMENT BANK, as Lender
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By:
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/s/ Gordon Yip
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Name:
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Gordon Yip
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Title:
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Director
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By:
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/s/ Jill Wong
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Name:
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Jill Wong
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Title:
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Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Dollar Bank, Federal Saving Bank
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By:
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/s/ Brian E. Waychoff
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Name:
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Brian E. Waychoff
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Title:
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Senior Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender:
First National Bank of Pennsylvania
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By:
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/s/ A. Brad Johnston
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Name:
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Brad Johnston
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: Goldman Sachs Bank USA
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By:
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/s/ A. Dan Martis
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Name:
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Dan Martis
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Title:
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Authorized Signatory
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: HSBC BANK USA, NATIONAL
ASSOCIATION
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By:
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/s/ Kyle Patterson
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Name:
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Kyle Patterson
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Title:
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Senior Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: HSBC Continental Europe
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CORPORATE BANKING CENTRE ROISSY
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Zac Paris Nord II – 85, av. des Nations – 93420 VILLERINTE
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Adresse Postale
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B.P. 69081 – 95973 ROISSY CDG Cedex
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By:
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/s/ Fançois Ravier
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Name:
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Fançois RAVIER
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Title:
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Mandataire general
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For any Lender requiring a second signature block:
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By:
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/s/ Ludovic Lepic
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Name:
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Ludovic LEPIC
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Title:
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Directeur
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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THE HUNTINGTON NATIONAL BANK
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By:
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/s/ Marcel Fournier
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Name:
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Marcel Fournier
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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JPMORGAN CHASE BANK, N.A.,
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By:
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/s/ Will Price
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Name:
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Will Price
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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MUFG Union Bank, N.A.,
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By:
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/s/ John Margetanski
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Name:
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John Margetanski
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Title:
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Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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SOCIETE GENERALE
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By:
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/s/ Kimberly Metzger
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Name:
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Kimberly Metzger
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Title:
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Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: TD Bank, N.A.
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By:
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/s/ Bernadette Collins
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Name:
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Bernadette Collins
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Title:
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Senior Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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TRUIST BANK (formerly known as BRANCH
BANKING AND TRUST COMPANY), as Lender,
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By:
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/s/ Alexander Harrison
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Name:
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Alexander Harrison
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Title:
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Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: U.S. Bank National Association
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By:
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/s/ Kelsey E. Hehman
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Name:
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Kelsey E. Hehman
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Title:
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Assistant Vice President
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[Wabtec - Second Amendment to 2018 Credit Agreement]
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LENDER SIGNATURE PAGE TO
SECOND AMENDMENT TO
CREDIT AGREEMENT DATED AS OF JUNE 8, 2018
OF WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION
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Name of Lender: Wells Fargo Bank, National Association
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By:
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/s/ Kevin Valenta
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Name:
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Kevin Valenta
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Title:
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Director
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[Wabtec - Second Amendment to 2018 Credit Agreement]
Exhibit A
Amended Credit Agreement
(see attached)
EXHIBIT A
Published Deal CUSIP Number: 96038PAF5
Published Refinancing Term Facility CUSIP Number: 96038PAH1
Published Delayed Draw Term Facility CUSIP Number: 96038PAJ7
Revolving Facility CUSIP Number: 96038PAG3
CREDIT AGREEMENT
dated as of
June 8, 2018,
among
WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION,
WABTEC NETHERLANDS B.V.
and the other BORROWING SUBSIDIARIES Party Hereto,
the LENDERS Party Hereto
and
PNC BANK, NATIONAL ASSOCIATION,
as the Administrative Agent
GOLDMAN SACHS BANK USA,
HSBC BANK USA, N.A., JPMORGAN CHASE BANK, N.A.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
PNC CAPITAL MARKETS LLC and TD SECURITIES (USA) LLC,
as Joint Lead Arrangers and Joint Bookrunners
GOLDMAN SACHS BANK USA
and
PNC CAPITAL MARKETS LLC,
as Syndication Agents
BANK OF AMERICA, N.A.,
HSBC BANK USA, N.A., JPMORGAN CHASE BANK, N.A.,
and
TD SECURITIES (USA) LLC,
as Documentation Agents
TABLE OF CONTENTS
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ARTICLE I
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Definitions
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SECTION 1.01.
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Defined Terms
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1
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SECTION 1.02.
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Classification of Loans and Borrowings
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SECTION 1.03.
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Terms Generally; Dutch Terms
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SECTION 1.04.
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Accounting Terms; GAAP
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SECTION 1.05.
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Currency Translation
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SECTION 1.06.
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Effectuation of Transactions
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SECTION 1.07.
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Most Favored Nation Provision
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SECTION 1.08.
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Divisions
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50
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ARTICLE II
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The Credits
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SECTION 2.01.
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Commitments
|
|
|
SECTION 2.02.
|
Loans and Borrowings
|
|
|
SECTION 2.03.
|
Requests for Borrowings
|
|
|
SECTION 2.04.
|
Funding of Borrowings
|
|
|
SECTION 2.05.
|
Interest Elections
|
|
|
SECTION 2.06.
|
Termination and Reduction of Commitments
|
|
|
SECTION 2.07.
|
Repayment of Loans; Amortization of Term Loans; Evidence of Debt
|
|
|
SECTION 2.08.
|
Prepayment of Loans
|
|
|
SECTION 2.09.
|
Fees
|
|
|
SECTION 2.10.
|
Interest
|
|
|
SECTION 2.11.
|
Alternate Rate of Interest
|
|
|
SECTION 2.12.
|
Increased Costs; Illegality
|
|
|
SECTION 2.13.
|
Break Funding Payments
|
|
|
SECTION 2.14.
|
Taxes
|
|
|
SECTION 2.15.
|
Payments Generally; Pro Rata Treatment; Sharing of Setoffs
|
|
|
SECTION 2.16.
|
Mitigation Obligations; Replacement of Lenders
|
|
i
|
SECTION 2.17.
|
Defaulting Lenders
|
|
|
SECTION 2.18.
|
Incremental Facilities
|
|
|
SECTION 2.19.
|
Bridge Facility
|
|
|
SECTION 2.20.
|
Letters of Credit
|
|
|
SECTION 2.21.
|
Swingline Loans
|
|
|
SECTION 2.22.
|
Borrowing Subsidiaries
|
|
|
SECTION 2.23.
|
Non-Public Lender
|
|
|
ARTICLE III
|
||
|
Representations and Warranties
|
||
|
SECTION 3.01.
|
Organization
|
|
|
SECTION 3.02.
|
Authorization; No Conflict; Compliance with Law
|
|
|
SECTION 3.03.
|
Validity and Binding Nature
|
|
|
SECTION 3.04.
|
Financial Condition
|
|
|
SECTION 3.05.
|
No Material Adverse Change
|
|
|
SECTION 3.06.
|
Litigation and Contingent Liabilities
|
|
|
SECTION 3.07.
|
Ownership of Properties
|
|
|
SECTION 3.08.
|
Subsidiaries
|
|
|
SECTION 3.09.
|
Pension Plans
|
|
|
SECTION 3.10.
|
Investment Company Act
|
|
|
SECTION 3.11.
|
Regulation U
|
|
|
SECTION 3.12.
|
Solvency
|
|
|
SECTION 3.13.
|
Environmental Matters
|
|
|
SECTION 3.14.
|
Insurance
|
|
|
SECTION 3.15.
|
Information
|
|
|
SECTION 3.16.
|
Intellectual Property
|
|
|
SECTION 3.17.
|
Labor Matters
|
|
|
SECTION 3.18.
|
No Default
|
|
|
SECTION 3.19.
|
Anti-Corruption Laws and Sanctions; Use of Proceeds
|
|
|
SECTION 3.20.
|
|
|
|
SECTION 3.21.
|
Ranking of Obligations
|
|
|
SECTION 3.22.
|
Immunity
|
|
|
SECTION 3.23.
|
Proper Form; No Recordation
|
|
ii
|
SECTION 3.24.
|
Centre of Main Interests
|
|
|
SECTION 3.25.
|
Tax Residency of Netherland Borrowing Subsidiary
|
|
|
ARTICLE IV
|
||
|
Conditions
|
||
|
SECTION 4.01.
|
Conditions to Effective Date
|
|
|
SECTION 4.02.
|
Conditions to Delayed Draw Term Funding Date
|
|
|
SECTION 4.03.
|
Conditions to Each Revolving Credit Event
|
|
|
SECTION 4.04.
|
Conditions to Initial Revolving Credit Event to each Borrowing Subsidiary
|
|
|
ARTICLE V
|
||
|
Affirmative Covenants
|
||
|
SECTION 5.01.
|
Financial Reporting
|
|
|
SECTION 5.02.
|
Notices; Other Information
|
|
|
SECTION 5.03.
|
Books, Records and Inspections
|
|
|
SECTION 5.04.
|
Maintenance of Property; Insurance
|
|
|
SECTION 5.05.
|
Compliance with Laws
|
|
|
SECTION 5.06.
|
Maintenance of Existence, Etc
|
|
|
SECTION 5.07.
|
Use of Proceeds
|
|
|
SECTION 5.08.
|
Employee Benefit Plans
|
|
|
SECTION 5.09.
|
Environmental Matters
|
|
|
SECTION 5.10.
|
Payment of Taxes
|
|
|
SECTION 5.11.
|
Anti-Corruption Laws
|
|
|
SECTION 5.12.
|
Guarantee Requirement
|
|
|
SECTION 5.13.
|
Further Assurances
|
|
|
ARTICLE VI
|
||
|
Negative Covenants
|
||
|
SECTION 6.01.
|
Indebtedness
|
|
|
SECTION 6.02.
|
Liens
|
|
|
SECTION 6.03.
|
Restricted Payments
|
|
|
SECTION 6.04.
|
Fundamental Changes; Business Activities
|
|
|
SECTION 6.05.
|
Transactions with Affiliates
|
|
iii
|
SECTION 6.06.
|
Restrictive Agreements
|
|
|
SECTION 6.07.
|
Fiscal Year
|
|
|
SECTION 6.08.
|
Financial Covenants
|
|
|
SECTION 6.09.
|
Anti-Corruption Laws
|
|
|
ARTICLE VII
|
||
|
Events of Default
|
||
|
SECTION 7.01.
|
Defaults
|
|
|
SECTION 7.02.
|
Delayed Draw Certain Funds Period
|
|
|
ARTICLE VIII
|
||
|
The Administrative Agent
|
||
| ARTICLE IX | ||
|
Parent Guarantee
|
||
|
SECTION 9.01.
|
Parent Guarantee
|
|
|
SECTION 9.02.
|
Waivers
|
|
|
SECTION 9.03.
|
Guarantee Absolute
|
|
|
SECTION 9.04.
|
Acceleration
|
|
|
SECTION 9.05.
|
Marshaling; Reinstatement
|
|
|
SECTION 9.06.
|
Subrogation
|
|
|
SECTION 9.07.
|
Termination Date
|
|
|
ARTICLE X
|
||
|
Miscellaneous
|
||
|
SECTION 10.01.
|
Notices
|
|
|
SECTION 10.02.
|
Waivers; Amendments
|
|
|
SECTION 10.03.
|
Expenses; Indemnity; Damage Waiver
|
|
|
SECTION 10.04.
|
Successors and Assigns
|
|
|
SECTION 10.05.
|
Survival
|
|
|
SECTION 10.06.
|
Counterparts; Integration; Effectiveness; Electronic Execution
|
|
|
SECTION 10.07.
|
Severability
|
|
|
SECTION 10.08.
|
Right of Setoff
|
|
iv
|
SECTION 10.09.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
|
|
SECTION 10.10.
|
WAIVER OF JURY TRIAL
|
|
|
SECTION 10.11.
|
Headings
|
|
|
SECTION 10.12.
|
Confidentiality
|
|
|
SECTION 10.13.
|
Interest Rate Limitation
|
|
|
SECTION 10.14.
|
Release of Guarantees under Guarantee Agreement
|
|
|
SECTION 10.15.
|
USA PATRIOT Act and Beneficial Ownership Regulation Notice
|
|
|
SECTION 10.16.
|
No Fiduciary Relationship
|
|
|
SECTION 10.17.
|
Non-Public Information
|
|
|
SECTION 10.18.
|
Conversion of Currencies
|
|
|
SECTION 10.19.
|
Acknowledgement and Consent to Bail-In of
|
|
|
SECTION 10.20.
|
Acknowledgement Regarding Any Supported QFCs
|
161
|
|
SECTION 10.21.
|
Dutch Loan Party Representation
|
|
|
SECTION
|
Existing Credit Agreement
|
|
|
SCHEDULES:
|
||
|
Schedule 1.01
|
—
|
Excluded Subsidiaries
|
|
Schedule 2.01
|
—
|
Commitments
|
|
Schedule 2.20(a)
|
—
|
LC Commitments
|
|
Schedule 2.20(b)
|
—
|
Existing Letters of Credit
|
|
Schedule 3.08
|
—
|
Subsidiaries
|
|
Schedule 6.01
|
—
|
Existing Indebtedness
|
|
Schedule 6.02
|
—
|
Existing Liens
|
|
Schedule 6.06
|
—
|
Existing Restrictive Agreements
|
|
EXHIBITS:
|
||
|
Exhibit A
|
—
|
Form of Assignment and Assumption
|
|
Exhibit B
|
—
|
Form of Borrowing Request
|
|
Exhibit C-1
|
—
|
Form of Borrowing Subsidiary Accession Agreement
|
|
Exhibit C-2
|
—
|
Form of Borrowing Subsidiary Termination
|
|
Exhibit D
|
—
|
Form of Compliance Certificate
|
|
Exhibit E
|
—
|
Form of Guarantee Agreement
|
|
Exhibit F
|
—
|
Form of Interest Election Request
|
|
Exhibit G
|
—
|
Form of Swingline Borrowing Request
|
v
|
Exhibit H-1
|
—
|
Form of US Tax Compliance Certificate for Foreign Lenders that are not Partnerships for US Federal Income
|
|
Exhibit H-2
|
—
|
Form of US Tax Compliance Certificate for Non-US Participants that are not Partnerships for US Federal Income Tax Purposes
|
|
Exhibit H-3
|
—
|
Form of US Tax Compliance Certificate for Non-US Participants that are Partnerships for US Federal Income Tax Purposes
|
|
Exhibit H-4
|
—
|
Form of US Tax Compliance Certificate for Foreign Lenders that are Partnerships for US Federal Income Tax Purposes
|
|
Exhibit I
|
—
|
Form of Solvency Certificate
|
vi
CREDIT AGREEMENT dated as of June 8, 2018, among WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION, a Delaware corporation,
WABTEC NETHERLANDS B.V., a private limited liability company organized under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid)
and registered with the Commercial Register of the Dutch Chamber of Commerce under number 65631668, the other BORROWING SUBSIDIARIES party hereto from time to time, the LENDERS party hereto and PNC BANK, NATIONAL ASSOCIATION, as the
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:
“2013 Note Indenture” means the Indenture dated as of August 8, 2013,
by and among the Company, the guarantors party thereto and Wells Fargo Bank, National Association, as trustee, as supplemented by the First Supplemental Indenture dated as of August 8, 2013, the Second Supplemental Indenture dated as of November
3, 2016, the Third Supplemental Indenture dated as of November 3, 2016, the Fourth Supplemental Indenture dated as of February 9, 2017, the Fifth Supplemental Indenture dated as of April 28, 2017, the Sixth Supplemental Indenture dated as of June
21, 2017, and the Seventh Supplemental Indenture dated as of June 8, 2018.
“ABR”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
“Acquisition” means any transaction, or series of related
transactions, resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a Person, or of all or substantially all of any division or line of business of a Person, (b) the acquisition of more than 50% of
the Capital Securities of any Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with another Person (other than a Person that is already a Subsidiary).
“Acquisition Indebtedness” means any Indebtedness of the Company or
any Subsidiary that has been incurred for the purpose of financing, in whole or in part, a Material Acquisition (including the GET Acquisition) and any related transactions (including for the purpose of refinancing or replacing all or a portion
of any related bridge facilities or any pre-existing Indebtedness of the Persons or assets to be acquired); provided that either (a) the release of the proceeds thereof
to the Company and the
2
Subsidiaries is contingent upon the substantially simultaneous consummation of such Material Acquisition (and, if the definitive agreement for such Material
Acquisition is terminated prior to the consummation of such Material Acquisition, or if such Material Acquisition is otherwise not consummated by the date specified in the definitive documentation evidencing, governing the rights of the holders
of or otherwise relating to such Indebtedness, then, in each case, such proceeds are, and pursuant to the terms of such definitive documentation are required to be, promptly applied to satisfy and discharge all obligations of the Company and the
Subsidiaries in respect of such Indebtedness) or (b) such Indebtedness contains a “special mandatory redemption” provision (or a similar provision) if such Material Acquisition is not consummated by the date specified in the definitive
documentation evidencing, governing the rights of the holders of or otherwise relating to such Indebtedness (and, if the definitive agreement for such Material Acquisition is terminated prior to the consummation of such Material Acquisition or
such Material Acquisition is otherwise not consummated by the date so specified, such Indebtedness is, and pursuant to such “special mandatory redemption” (or similar) provision is required to be, redeemed or otherwise satisfied and discharged
within 90 days of such termination or such specified date, as the case may be).
“Adjusted LIBO Rate” means (a) with respect to any LIBOR Borrowing
denominated in US Dollars for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100,000 of 1% (i.e., the fifth digit after the decimal)) equal to the product of (i) the LIBO Rate for US Dollars for such
Interest Period multiplied by (ii) the Statutory Reserve Rate and (b) with respect to any LIBOR Borrowing denominated in any Alternative Currency for any Interest Period, an interest rate per annum equal to the LIBO Rate for such Alternative
Currency for such Interest Period.
“Administrative Agent” means PNC, in its capacity as the
administrative agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in Article VIII. Unless the context requires otherwise, the term “Administrative Agent” shall include any branch or Affiliate of
PNC or any such successor through which PNC or such successor shall perform any of its obligations in such capacity hereunder or under the other Loan Documents.
“Administrative Questionnaire” means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
“Affected Financial Institution” means
(a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, with respect to a specified Person, another Person
that directly or indirectly Controls, is Controlled by or is under common Control with the Person specified.
“Aggregate Revolving Commitment” means the sum of the Revolving
Commitments of all the Revolving Lenders.
3
“Aggregate Revolving Exposure” means the sum of the Revolving
Exposures of all the Revolving Lenders.
“Agreement” means this Credit Agreement.
“Agreement Currency” has the meaning set forth in Section 10.18(b).
“Alternate 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 Federal Funds Effective Rate in effect on such day plus ½ of 1.00% per annum and (c) the Adjusted LIBO
Rate on such day (or if such day is not a Business Day, the immediately preceding Business Day) for a deposit in US Dollars with a maturity of one month plus 1.00% per
annum; provided that if such rate shall be less than 1.00%, such rate shall be deemed to be 1.00%. For purposes of clause (c) above, the Adjusted LIBO Rate on any day
shall be based on the Screen Rate for a deposit in US dollars with a maturity of one month (or, if the Screen Rate on such day for a deposit in US Dollars is not available for a maturity of one month but is available for periods both longer and
shorter than such period, the Interpolated Screen Rate) at approximately 11:00 a.m., London time, on such day. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.11, then the Alternate Base Rate shall
be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.
“Alternative Currency” means (a) Euro, (b) Sterling, (c) Canadian
Dollars and (d) any Eligible Currency that the Company requests the Administrative Agent to include as an Alternative Currency hereunder and that is agreed to be designated as an “Alternative Currency” by all the Revolving Lenders; provided that the Administrative Agent shall promptly notify each Revolving Lender of each such request and each Revolving Lender shall be deemed not to have agreed to such
request unless and until its written consent thereto has been received by the Administrative Agent. If, after the designation pursuant to the terms of this Agreement of any currency as an Alternative Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with the result that different types of such currency are introduced, or such country’s currency is, in the determination of the Administrative Agent, no longer readily
available or freely traded or otherwise ceases to be an Eligible Currency (any of the foregoing being referred to as a “Disqualifying Event”), then the Administrative
Agent shall promptly notify the Revolving Lenders and the Company thereof, and such currency shall no longer be an Alternative Currency until such time as such Disqualifying Event no longer exists, and, not later than the last day of the
applicable Interest Period for such Revolving Loans, the applicable Borrowers shall repay all Revolving Loans denominated in such currency, together with accrued interest thereon.
“Alternative Currency Overnight Rate” means, for any day with respect
to any currency, the rate of interest per annum at which overnight deposits in such currency, in an amount approximately equal to the amount with respect to which such rate is being
4
determined, would be offered for such day in the Relevant Interbank Market, as such rate is determined by the Administrative Agent or, in the case of any such
determination made by it as contemplated hereunder, by any Issuing Bank.
“Anti-Corruption Laws” means all laws, rules, and regulations of any
jurisdiction applicable to the Company or any of its Subsidiaries from time to time concerning or relating to bribery, corruption, money laundering or anti-terrorism.
“Applicable Creditor” has the meaning set forth in Section 10.18(b).
“Applicable Percentage” means at any time, with respect to any
Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at such time. If all the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to any assignments.
“Applicable Rate” means, for any day, with respect to Revolving
Commitment Fees, or with respect to any Term Loan, Revolving Loan or Swingline Loan that is an ABR Loan or a LIBOR Loan or CDOR Loan, the applicable rate per annum set forth below under the applicable caption “Revolving Commitment Fees”, “ABR
Loans” or “LIBOR/CDOR Loans”, as the case may be, determined by reference to the numerically lower of (a) the Pricing Category corresponding to the Applicable Ratings in effect at such time and (b) the Pricing Category corresponding to the
Leverage Ratio as of the end of the most recent Fiscal Quarter or Fiscal Year of the Company for which financial statements of the Company shall have been delivered pursuant to Section 5.01(a) or 5.01(b); provided that, for purposes of determining the Applicable Rate:
(i) on or prior to the fifth
Business Day after the earlier to occur of (A) the GET Acquisition Closing Date and (B) the termination of the GET Merger Agreement in accordance with the terms thereof, the Applicable Ratings shall be deemed to be in the numerically higher of
(x) Pricing Category 4 and (y) the Pricing Category otherwise applicable with respect thereto; and
(ii) prior to the earlier of (A) the
date on which the consolidated financial statements of the Company pursuant to Section 5.01(a) or 5.01(b) and the related Compliance Certificate pursuant to Section 5.01(c) are required to be delivered to the Administrative Agent for the first
Fiscal Quarter or Fiscal Year ended after the GET Acquisition Closing Date and (B) the termination of the GET Merger Agreement in accordance with the terms thereof, the Leverage Ratio shall be deemed to be in the numerically higher of (x)
Pricing Category 5 and (y) the Pricing Category otherwise applicable with respect thereto.
5
|
Pricing
Category
|
Applicable Ratings
(Moody’s/S&P/Fitch)
|
Leverage Ratio |
Revolving
Commitment Fees
(percent per
annum)
|
LIBOR/CDOR
Loans
(percent per
annum)
|
ABR Loans
(percent per
annum)
|
|
Category 1
|
> Baa1/BBB+/BBB+
|
< 0.50:1.00
|
0.100%
|
1.000%
|
0.000%
|
|
Category 2
|
Baa1/BBB+/BBB+
|
≥ 0.50:1.00 and
<1.00:1.00
|
0.125%
|
1.125%
|
0.125%
|
|
Category 3
|
Baa2/BBB/BBB
|
≥ 1.00:1.00 and
<1.75:1.00
|
0.150%
|
1.250%
|
0.250%
|
|
Category 4
|
Baa3/BBB-/BBB-
|
≥ 1.75:1.00 and
<2.50:1.00
|
0.200%
|
1.375%
|
0.375%
|
|
Category 5
|
Ba1/BB+/BB+
|
≥ 2.50:1.00 and
<3.25:1.00
|
0.250%
|
1.625%
|
0.625%
|
|
Category 6
|
< Ba1/BB+/BB+
|
≥ 3.25:1.00
|
0.300%
|
1.875%
|
0.875%
|
For purposes of the foregoing, (a) if any of Moody’s, S&P or Fitch shall not have an Applicable Rating in effect (other than by reason of the circumstances
referred to in the last sentence of this paragraph), then (i) if only one rating agency shall not have an Applicable Rating in effect, the applicable Pricing Category shall be determined by reference to the remaining two effective Applicable
Ratings, (ii) if two rating agencies shall not have an Applicable Rating in effect, one of such rating agencies shall be deemed to have an Applicable Rating in Pricing Category 6 and the applicable Pricing Category shall be determined by
reference to such deemed Applicable Rating and the remaining effective Applicable Rating and (iii) if no rating agency shall have an Applicable Rating in effect, the applicable Pricing Category shall be Pricing Category 6, (b) if the Applicable
Ratings in effect or deemed to be in effect shall fall within different Pricing Categories, then (i) if three Applicable Ratings are in effect, either (A) if two of the three Applicable Ratings are in the same Pricing Category, such Pricing
Category shall be the applicable Pricing Category or (B) if all three of the Applicable Ratings are in different Pricing Categories, the Pricing Category corresponding to the middle Applicable Rating shall be the applicable Pricing Category and
(ii) if only two Applicable Ratings are in effect or deemed to be in effect, the applicable Pricing Category shall be the Pricing Category in which the higher of the Applicable Ratings shall fall unless the Applicable Ratings differ by two or
more Pricing Categories, in which case the applicable Pricing Category shall be the Pricing Category one level below that corresponding to the higher Applicable Rating and (c) if any Applicable Rating shall be changed (other than as a result of
a change in the rating system of the applicable rating agency), such change shall be effective on the fifth Business Day following the date on which it is first announced by the applicable rating agency making such change. If the rating system
of Moody’s, S&P or Fitch shall change, or if such rating agency shall cease to be in the business of rating corporate debt obligations and corporate credit, the Company and the Required Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the
6
unavailability of Applicable Ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rating used to determine the
Applicable Rate shall be deemed to be that most recently in effect from such rating agency prior to such change or cessation.
Each change in the applicable Pricing Category (as corresponding to the Leverage Ratio) resulting from a change in the Leverage Ratio shall be
effective during the period commencing on and including the date on which the consolidated financial statements of the Company pursuant to Section 5.01(a) or 5.01(b) and the related Compliance Certificate pursuant to Section 5.01(c) are required
to be delivered to the Administrative Agent for any Fiscal Quarter or Fiscal Year, to the extent such financial statements and Compliance Certificate indicate any such change, and ending on the date immediately preceding the effective date of the
next such change; provided that if the Company shall not have timely delivered its consolidated financial statements pursuant to Section 5.01(a) or 5.01(b), as
applicable, and the related Compliance Certificate pursuant to Section 5.01(c), commencing on the date upon which such financial statements or Compliance Certificate should have been so delivered and continuing until such financial statements or
Compliance Certificate, as applicable, are actually delivered, the Leverage Ratio shall be deemed to be in Pricing Category 6.
“Applicable Ratings” means, with respect to Moody’s, S&P or
Fitch, a rating by such rating agency of the Company’s senior unsecured non-credit enhanced long-term indebtedness for borrowed money.
“Approved Fund” means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its activities and 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.
“Approved Netherlands Borrower” means a wholly owned Subsidiary of
the Company organized under the laws of the Netherlands and approved in writing by the Administrative Agent (such approval not to be unreasonably withheld, delayed or conditioned), in respect of which all of the requirements set forth in Section
2.22 shall have been satisfied.
“Arrangers” means Goldman Sachs Bank USA, HSBC Bank USA, N.A.,
JPMorgan Chase Bank, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its
subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), PNC Capital Markets LLC and TD Securities (USA) LLC, in their capacities as the joint lead arrangers and
joint bookrunners for the Revolving Facility, the Refinancing Term Facility, the Delayed Draw Term Facility and, in the case of Goldman Sachs, the Bridge Facility.
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“Assignment and Assumption” means an assignment and assumption
entered into by a Lender and an Eligible Assignee, with the consent of any Person whose consent is required by Section 10.04, and accepted by the Administrative Agent, in the form of Exhibit A or any other form (including electronic records
generated by the use of an electronic platform) approved by the Administrative Agent.
“Attributable Debt” means, with respect to any Sale and Leaseback
Transaction, the present value (discounted at the rate set forth or implicit in the terms of the lease included in such Sale and Leaseback Transaction) of the total obligations of the lessee for rental payments (other than amounts required to be
paid on account of taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such Sale and
Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease that is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of the Attributable Debt
determined assuming termination on the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated) or the Attributable Debt determined assuming no such termination.
“Bail-In Action” means the exercise of any Write-Down and Conversion
Powers by the applicable EEA Resolution Authority
in respect of any liability of an EEAAffected 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 that 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).
“Bankruptcy Event” means, with respect to any Person, that such
Person has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, liquidator, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or
liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or
appointment; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person
by a Governmental Authority; provided, however, that such ownership interest does not
result in or provide such Person with immunity from the jurisdiction of
8
courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority) to reject, repudiate, disavow or disaffirm any agreements made by such Person.
“Beneficial Ownership Certification” means a certification regarding
beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“BHC Act Affiliate” means, with
respect to any Person, an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such Person.
“Board of Governors” means the Board of Governors of the Federal
Reserve System of the United States of America.
“Borrower” means the Company or any Borrowing Subsidiary. “Borrowing” means (a) Loans of the same Class, Type and currency made, converted or continued on the same date and to the same Borrower and, in the case of LIBOR Loans or
CDOR Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan.
“Borrowing Minimum” means (a) in the case of a Borrowing denominated
in US Dollars, US$1,000,000 and (b) in the case of a Borrowing denominated in an Alternative Currency, the smallest amount of such Alternative Currency that is a multiple of 500,000 units of such currency and that has a US Dollar Equivalent of
US$1,000,000 or more.
“Borrowing Multiple” means (a) in the case of a Borrowing denominated
in US Dollars, US$1,000,000 and (b) in the case of a Borrowing denominated in any Alternative Currency, the smallest amount of such Alternative Currency that is a multiple of 1,000,000 units of such currency and that has a US Dollar Equivalent of
US$1,000,000 or more.
“Borrowing Request” means a request by or on behalf of a Borrower for
a Borrowing in accordance with Section 2.03, which shall be in the form of Exhibit B or any other form approved by the Administrative Agent.
“Borrowing Subsidiary” means WABTEC UA and each other Subsidiary that
has become a Borrowing Subsidiary pursuant to Section 2.22(a), other than any such Subsidiary that has ceased to be a Borrowing Subsidiary as provided in Section 2.22(b).
“Borrowing Subsidiary Accession Agreement” means a Borrowing
Subsidiary Accession Agreement, substantially the form of Exhibit C-1, duly executed by the Company and the applicable Subsidiary and accepted by the Administrative Agent,
9
pursuant to which such Subsidiary agrees to become a Borrowing Subsidiary and agrees to be bound by the terms and conditions hereof.
“Borrowing Subsidiary Termination” means a Borrowing Subsidiary
Termination, substantially in the form of Exhibit C-2, duly executed by the Company.
“Bridge Commitment” means, with respect to any Lender, the
commitment, if any, of such Lender, established pursuant to Section 2.19 and the Bridge Facility Agreement, to make a Bridge Loan hereunder, expressed as an amount representing the maximum principal amount of the Bridge Loan to be made by such
Lender.
“Bridge Commitment Letter” means the Commitment Letter dated May 20,
2018, between the Company and Goldman Sachs Bank USA, as supplemented by the Joinder to Commitment Letter dated June 5, 2018.
“Bridge Facility” means the bridge loan facility, if any, established
hereunder pursuant to Section 2.19 and the Bridge Facility Agreement, including the Bridge Commitments and the Bridge Loans.
“Bridge Facility Agent” means Goldman Sachs Bank USA, in its capacity
as the administrative agent hereunder and under the other Loan Documents with respect to the Bridge Facility, if established hereunder pursuant to Section 2.19.
“Bridge Facility Agreement” means a Bridge Facility Agreement, in
form and substance reasonably satisfactory to the Company and the Bridge Facility Agent, among the Company, the Bridge Facility Agent and the Bridge Lenders, establishing the Bridge Commitments and effecting such other amendments hereto and to
the other Loan Documents as are contemplated by Section 2.19.
“Bridge Facility Amount” means, at any time, the lesser of (a)
US$2,500,000,000 and (b) the maximum principal amount of the bridge loan facility referred to in, and as determined at such time under, the Bridge Commitment Letter.
“Bridge Lender” means a Lender with a Bridge Commitment or an
outstanding Bridge Loan.
“Bridge Loan” means a Loan made by a Lender to the Company pursuant
to Section 2.19 and the Bridge Facility Agreement.
“Business Day” means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law to remain closed; provided that (a) when used in connection with a LIBOR Loan
denominated in any currency or any Letter of Credit denominated in any LC Currency (other than US Dollars or Canadian Dollars), the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits denominated in
such currency in the London interbank market or any day on which banks in London are not open for general business,
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and (b) when used in connection with a CDOR Loan or any Letter of Credit denominated in Canadian Dollars, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in deposits in Toronto.
“Canadian Dollars” or “CAD$” means the lawful money of Canada.
“Capital Lease” means, with respect to any Person, any lease of (or
other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of such Person.
“Capital Securities” means, with respect to any Person, all shares,
interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, including common shares, preferred shares, membership interests in a limited liability company, limited or general
partnership interests in a partnership or any other equivalent of such ownership interest; provided that “Capital Securities” shall not include any debt securities
convertible into Capital Securities prior to such conversion.
“Cash Equivalent Investment” means, at any time, (a) any evidence of
Indebtedness, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in
each case (unless issued by a Lender or its holding company) rated at least A-l by S&P or P-l by Moody’s, (c) any certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year after such time, or any overnight
Federal Funds transaction that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less
than US$500,000,000), (d) any repurchase agreement entered into with any Lender (or commercial banking institution of the nature referred to in clause (c)) that (i) is secured by a fully perfected security interest in any obligation of the type
described in any of clauses (a) through (c) above and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution)
thereunder, (e) money market accounts or mutual funds that invest exclusively in assets satisfying the foregoing requirements, (f) securities, maturing not more than 18 months from the date of purchase, rated at least AA by S&P or Aa by
Moody’s, (g) with respect to any Foreign Subsidiary of the Company, the approximate equivalent of any of clauses (a) through (f) above in any country in which such Foreign Subsidiary is organized or maintains deposit accounts and (h) other
investments classified as “cash” or “cash equivalents” in accordance with GAAP and made in accordance with the Company’s investment policy, as approved by the Board of Directors of the Company from time to time.
“Cash Management Services” means cash management and related services
provided to the Company or any Subsidiary, including treasury, depository, return items, overdraft, controlled disbursement, cash sweeps, zero balance arrangements, merchant stored value cards, e-payables, electronic funds transfer, interstate
depository network and automatic clearing house transfer (including the Automated Clearing House processing of
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electronic funds transfers through the direct Federal Reserve Fedline system) services and credit cards, credit card processing services, debit cards, stored value
cards and commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”) arrangements.
“CDO Rate” means, with respect to any CDOR Borrowing for any Interest
Period, the applicable Screen Rate as of the Specified Time on the Quotation Day.
“CDOR”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the CDO Rate.
“CFC” means (a) any Person that is a “controlled foreign corporation”
(within the meaning of Section 957 of the Code), but only if a Loan Party or a US Person that is an Affiliate of a Loan Party is, with respect to such Person, a “United States shareholder” (within the meaning of Section 951(b) of the Code)
described in Section 951(a)(1) of the Code and (b) each subsidiary of any Person described in clause (a).
“CFC Holding Company” means each Subsidiary that has no material
assets other than assets that consist (directly or indirectly through other CFC Holding Companies) of Capital Securities or indebtedness (as determined for US tax purposes) in one or more CFCs or CFC Holding Companies.
“Change in Law” means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by
any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided
that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) 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, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.
“Change of Control” means (a) any “person” or “group” (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 50% or more of the voting capital stock of the Company,
(b) within a period of 12 consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to constitute a majority of the board of directors of the Company and shall not have been replaced by
individuals approved or nominated by the board as substantially constituted at the beginning of such period or (c) a “change in control” (or similar event, however denominated), under and as defined in any indenture or other agreement or
instrument evidencing, governing the rights of the holders of or
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otherwise relating to any Material Indebtedness of the Company or any Subsidiary, shall have occurred with respect to the Company.
“Charges” has the meaning set forth in Section 10.13.
“CIP Regulations” has the meaning set forth in Article VIII.
“Class”, when used in reference to (a) any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Refinancing Term Loans, Delayed Draw Term Loans, Revolving Loans, Bridge Loans, Incremental Term Loans of another “Class” established pursuant to Section 2.18 or Swingline Loans,
(b) any Commitment, refers to whether such Commitment is a Refinancing Term Commitment, a Delayed Draw Term Commitment, a Revolving Commitment, a Bridge Commitment or an Incremental Term Commitment of another “Class” established pursuant to
Section 2.18 and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means a Revolving Commitment, a Term Commitment, a
Bridge Commitment or an Incremental Term Commitment.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. §
et seq.), as amended from time to time, and any successor statute.
“Communications” means, collectively, any notice, demand,
communication, information, document or other material provided by or on behalf of the Company pursuant to any Loan Document or the transactions contemplated therein that is distributed to the Administrative Agent, any Lender or any Issuing Bank
by means of electronic communications pursuant to Section 10.01, including through the Platform.
“Company” means Westinghouse Air Brake Technologies Corporation, a
Delaware corporation.
“Compliance Certificate” means a Compliance Certificate in the form
of Exhibit D or any other form approved by the Administrative Agent.
“Computation Period” means each period of four consecutive Fiscal
Quarters ending on the last day of a Fiscal Quarter.
“Confidential Information Memorandum” means the Confidential
Information Memorandum dated May 2018 relating to the credit facilities provided for herein.
“Connection Income Taxes” means Other Connection Taxes that are
imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
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“Consolidated Net Income” means, for any period, the net income (or
loss) of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Tangible Assets” means, on any date of determination, all assets minus (a) all applicable depreciation, amortization and other valuation reserves, (b) all current liabilities and (c) all goodwill, trade names, trademarks, patents, copyrights, unamortized debt discount and expenses and other intangibles, in each case, of the Company and its Subsidiaries
determined on a consolidated basis in accordance with GAAP and as set forth on the most recently available consolidated balance sheet of the Company prepared in accordance with GAAP.
“Control” means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies, or the dismissal or appointment of the management, of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Convertible Indebtedness” means Indebtedness convertible at the
option of the holder thereof into Capital Securities of the Company, cash or a combination of Capital Securities of the Company and cash (as provided in the documentation governing such Indebtedness).
“Covered Entity” means (a) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b), or (c) 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 set forth in Section 10.20.
“Credit Party” means the Administrative Agent, each Issuing Bank, the
Swingline Lender and each other Lender.
“CRR” means the Council Regulation (EU) No 575/2013 of the European
Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012.
“Default” means any event or condition that constitutes, or upon
notice, lapse of time or both would constitute, an Event of Default.
“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 that (a) has failed, within two
Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans, (ii) to fund any portion of its participations in Letters of Credit or Swingline Loans
14
or (iii) to pay to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the
Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific
Default) has not been satisfied, (b) has notified the Company, the Administrative Agent, the Swingline Lender or any Issuing Bank in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of
its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good-faith determination that a condition precedent (specifically identified in such writing, including,
if applicable, by reference to a specific Default) to funding a Loan cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative
Agent, the Swingline Lender or any Issuing Bank made in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to
fund prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans; provided that such Lender shall cease to be a Defaulting Lender
pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, (d) has, or has a Lender Parent that has, become the subject of a Bankruptcy Event or (e)
has, or has a Lender Parent that has, become the subject of a Bail-In Action.
“Delayed Draw Certain Funds Period” means the period from and
including the Effective Date to and including the earlier of the termination or expiration of all the Delayed Draw Term Commitments and the borrowing of the Delayed Draw Term Loans on the Delayed Draw Term Funding Date.
“Delayed Draw Term Commitment” means, with respect to each Lender,
the commitment, if any, of such Lender to make a Delayed Draw Term Loan on the Delayed Draw Term Funding Date, expressed as an amount representing the maximum principal amount of the Delayed Draw Term Loan to be made by such Lender, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Delayed Draw Term
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Delayed Draw Term Commitment, as applicable. The initial aggregate amount of the Lenders’ Delayed Draw Term
Commitments is US$400,000,000.
“Delayed Draw Term Commitment Termination Date” means the earliest to
occur of (a) the consummation of the GET Direct Sale without using the Delayed Draw Term Facility, (b) the termination of either the GET Merger Agreement or the GET Separation Agreement in accordance with the terms thereof and (c) 5:00 p.m., New
York City time, on May 20, 2019, provided that if the End Date (as defined in the GET Merger Agreement as in effect on the Signing Date) shall have been extended in
accordance with Section 10.01(b)(i) of the GET Merger Agreement (as in effect on the Signing Date), then
15
the date in this clause (c) shall automatically be extended (but not beyond 5:00 p.m., New York City time, on August 20, 2019) to be the same date as the End Date as
so extended.
“Delayed Draw Term Facility” means the delayed draw term loan
facility provided for herein, including the Delayed Draw Term Commitments and the Delayed Draw Term Loans.
“Delayed Draw Term Funding Date” means the date, on or after the
Effective Date and on or before the Delayed Draw Term Commitment Termination Date, on which the conditions specified in Section 4.02 are satisfied (or waived in accordance with Section 10.02).
“Delayed Draw Term Lender” means a Lender with a Delayed Draw Term
Commitment or an outstanding Delayed Draw Term Loan.
“Delayed Draw Term Loan” means a Loan made pursuant to clause (b) of
Section 2.01.
“Delayed Draw Term Maturity Date” means the third anniversary of the
Delayed Draw Term Funding Date.
“Delayed Draw Term Ticking Fee” has the meaning set forth in Section
2.09(b).
“Delayed Draw Term Ticking Fee Accrual Period” has the meaning set
forth in Section 2.09(b).
“Designated Cash Management Obligations” means the due and punctual
payment and performance of all obligations of the Company and the Subsidiaries in respect of any Cash Management Services provided to the Company or any Subsidiary that are (a) owed to the Administrative Agent, any Arranger or an Affiliate of any
of the foregoing, or to any Person that, at the time such obligations were incurred, was the Administrative Agent, an Arranger or an Affiliate of any of the foregoing, (b) owed on the Effective Date to a Person that is a Lender or an Affiliate of
a Lender as of the Effective Date or (c) owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations are incurred, including obligations with respect to fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including obligations accruing, at the rate specified therein, or incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding).
“Designated Hedge Obligations” means the due and punctual payment and
performance of all obligations of the Company and the Subsidiaries under each Hedging Agreement that (a) is with a counterparty that is, or was on the Effective Date, the Administrative Agent, an Arranger or an Affiliate of any of the foregoing,
whether or not such counterparty shall have been the Administrative Agent, an Arranger or an Affiliate of any of the foregoing at the time such Hedging Agreement was entered into, (b) is in effect
16
on the Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Effective Date or (c) is entered into after the Effective Date with
a counterparty that is a Lender or an Affiliate of a Lender at the time such Hedging Agreement is entered into, including obligations with respect to payments for early termination, fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including obligations accruing, at the rate specified therein, or incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding).
“Designated Subsidiary” means each Subsidiary of the Company, other
than an Excluded Subsidiary.
“Disposition” means any direct or indirect sale, transfer or other
disposition (or series of related sales, transfers or other dispositions) by the Company or any of its Subsidiaries, including any disposition by means of a merger, consolidation or similar transaction, of all or substantially all the assets of
any division or line of business of the Company or such Subsidiary or any other assets of the Company or such Subsidiary outside of the ordinary course of business of the Company or such Subsidiary.
“Documentation Agents” means the Persons identified as such on the
cover page of this Agreement.
“Domestic Subsidiary” means a Subsidiary of the Company organized
under the laws of the United States of America, any State thereof or the District of Columbia.
“Domestic Borrowing Subsidiary” means any Borrowing Subsidiary that
is a Domestic Subsidiary.
“EBITDA” means, for any period, Consolidated Net Income for such
period plus,
(a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum for such period of:
(i) Interest Expense,
(ii) income tax expense,
(iii) depreciation and amortization,
(iv) losses from Dispositions,
(v) extraordinary losses,
(vi) all noncash charges, expenses or losses, other than any noncash charge, expense or loss (A) constituting a write-off of receivables or (B) to the extent any
17
cash payment was or will be made in respect thereof, whether during such period or in any prior or subsequent period,
(vii) one-time transaction costs, fees and
expenses related to the GET Acquisition or any other Material Acquisition, whether or not the GET Acquisition or such other Material Acquisition is consummated, and
(viii) restructuring, integration and
related charges or expenses (which for the avoidance of doubt, include retention, severance, systems establishment costs, contract termination costs, future lease commitments and costs to consolidate facilities and relocate employees) related
to the GET Acquisition or any other Material Acquisition, provided that the charges or expenses added back pursuant to this clause (viii) (other than any such charges
or expenses related to the GET Acquisition) shall not exceed US$100,000,000 in the aggregate for all periods (it being understood that the limitation in this proviso shall not apply to any portion of such charges or expenses permitted to be
added back pursuant to any other clause of this definition), minus
(b) without duplication and to the extent added in
determining such Consolidated Net Income, the sum for such period of:
(i) noncash credits to net income, other
than any credits to the extent any cash payment was or will be received in respect thereof, whether during such period or in any prior or subsequent period,
(ii) gains from Dispositions,
(iii) noncash gains from discontinued operations, and
(iv) extraordinary income;
provided, however,
that in the event of a Material Acquisition or a Material Disposition consummated during the period of determination, the calculation of the Leverage Ratio and, in the case of the GET Acquisition, the Interest Coverage Ratio shall be made giving
pro forma effect to such transaction as if it had occurred on the first day of such period.
“EEA Financial Institution” means (a) any credit institution or
investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country that is a parent of any Person described in clause (a) above or (c) any
entity established in an EEA Member Country that is a subsidiary of any Person described in clause (a) or (b) above 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
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(including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender,
(c) an Approved Fund and (d) any other Person, other than, in each case, a natural person, a Defaulting Lender, the Company, any Subsidiary or any other Affiliate of the Company.
“Eligible Currency” means any currency other than US Dollars that is
readily available and freely traded, in which deposits are customarily offered to banks in the London interbank market, that is convertible into US Dollars in the international interbank market and as to which a US Dollar Equivalent may be
readily calculated.
“Employee Benefit Plan” means any of (a) an “employee benefit plan”
(as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) 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”.
“Environmental Claims” means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or responsibility for any violation of any Environmental Law, or for injury to human health or the environment, including those resulting from a Release or threatened Release of
any Hazardous Substance.
“Environmental Laws” means all applicable federal, state, provincial,
local, tribal, territorial and foreign laws (including common law), constitutions, statutes, treaties, regulations, rules, ordinances and codes and any consent decrees, settlement agreements, judgments, orders, directives, or legally-enforceable
policies or programs issued by or entered into with a Governmental Authority pertaining or relating to (a) pollution or pollution control, (b) protection of human health from exposure to hazardous or toxic substances or wastes, (c) protection of
the environment and/or natural resources, (d) employee safety in the workplace, (e) the presence, use, management, generation, manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling, packaging, sale, transport,
storage, collection, distribution, disposal or Release or threat of Release of hazardous or toxic substances or wastes, (f) the presence of contamination, (g) the protection of endangered or threatened species or (h) the protection of
environmentally sensitive areas.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Event” means (a) with respect to a Pension Plan, a reportable
event under Section 4043 of ERISA as to which event (after taking into account notice waivers provided for in the regulations) there is a duty to give notice to the PBGC, (b) a withdrawal by the Company or any member of the ERISA Group from a
Pension Plan
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subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by the Company or any member of the ERISA Group from a Multiemployer Plan or occurrence of an event described in Section 4041A(a) of ERISA
that results in the termination of a Multiemployer Plan, (d) the filing of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan amendment as a termination under Section 4041(e) of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan, (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, (f) the imposition of
any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any member of the ERISA Group or (g) any Foreign Benefit Event.
“ERISA Group” means, at any time, the Company and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated) under common control and all other entities which, together with the Company, are treated as a single employer under Section 414 of the Code or Section
4001(b)(1) of ERISA.
“Erroneous Payment” has the meaning set forth in Article VIII.
“Erroneous Payment Notice” has the meaning set forth in Article VIII.
“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” or “€” means the single currency unit of the member States of the European Community that adopt or have adopted the Euro as their lawful currency in accordance with legislation of the European Community relating to Economic
and Monetary Union.
“Events of Default” has the meaning set forth in Section 7.01.
“Exchange Act” means the United States Securities Exchange Act of
1934. “Exchange Rate” means, on any day, for purposes of determining the US Dollar Equivalent of any other currency, the rate at which such other currency may be
exchanged into US Dollars, determined by using the closing rate of exchange as of the Business Day immediately preceding the date of determination, as such closing rate of exchange is displayed on the applicable Reuters World Currency Page. In
the event that such rate is not displayed on the applicable Reuters World Currency Page, (a) the Exchange Rate shall be determined by reference to such other publicly available service for providing exchange rates as may be agreed upon by the
Administrative Agent and the Company or (b) in the absence of such an agreement, the Exchange Rate shall instead be
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the arithmetic average of the spot rates of exchange of the Administrative Agent or one of its Affiliates in the market where its, or its Affiliate’s, foreign
currency exchange operations in respect of such currency are then being conducted, at or as near as practicable to such time of determination, on such day for the purchase of US Dollars for delivery two Business Days later, provided that if at the time of such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it reasonably
deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error. Notwithstanding the foregoing provisions of this definition, each Issuing Bank may, solely for purposes of computing the fronting fees
owed to it under Section 2.09(c), compute the US Dollar Equivalent of the LC Exposure attributable to Letters of Credit issued by it by reference to exchange rates determined using any reasonable method customarily employed by it for such
purpose.
“Excluded Subsidiary” means (a) any Subsidiary set forth on Schedule
1.01, (b) any Subsidiary that is not wholly owned by the Company (provided that, for purposes of this clause (b), the determination of whether GET SpinCo or any of its
subsidiaries is a wholly owned Subsidiary of the Company shall be determined without giving effect to the shares of SpinCo Class A Preferred Stock (as defined in the GET Separation Agreement) held by directly or indirectly by the GET Seller), (c)
any Subsidiary that is a CFC or a CFC Holding Company, (d) unless otherwise agreed by the Company, any Subsidiary that is not a Material Subsidiary, (e) any Subsidiary that is prohibited by applicable law, rule or regulation or, in the case of
any Subsidiary that is acquired after the Effective Date (other than GET SpinCo or any of its subsidiaries or any subsidiary acquired by the GET Direct Sale Purchaser pursuant to the GET Direct Sale), by any contractual obligation existing on the
date such Subsidiary is acquired (and, in each case, not established in anticipation thereof) from providing a Guarantee of the Obligations or that would require consent, approval, license or authorization of any Governmental Authority to provide
a Guarantee of the Obligations (unless such consent, approval, license or authorization has been obtained), (f) any captive insurance company, (g) any not-for-profit Subsidiary or (h) any special purposes entity, including any Securitization Subsidiary; provided that (i) any Subsidiary that is an Excluded Subsidiary under any of the foregoing
clauses shall automatically cease to be an Excluded Subsidiary at such time as the condition causing it to be an Excluded Subsidiary shall be remedied or shall cease to be in effect and (ii) no Subsidiary shall be an Excluded Subsidiary under
any of the foregoing clauses if such Subsidiary is an obligor, including pursuant to a Guarantee, in respect of any GET Acquisition Indebtedness or any Indebtedness issued under the 2013 Note Indenture or any supplemental indenture thereto.
“Excluded Swap Obligation” means, with respect to any Subsidiary
Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee by such Subsidiary Guarantor of such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule or
regulation promulgated thereunder or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Subsidiary Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell,
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support or other agreement”, as defined in the Commodity Exchange Act, for the benefit of such Subsidiary Guarantor and any and all Guarantees of such Subsidiary
Guarantor’s Swap Obligations by the other Loan Parties) at the time the Guarantee of such Subsidiary Guarantor becomes effective with respect to such Swap Obligation.
“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, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of
such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that
otherwise are Other Connection Taxes, (b) in the case of a Lender with respect to a Loan or Commitment to the Company or any Domestic Borrowing Subsidiary, US federal withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in such Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (it being understood that the date on which a Lender
acquires an interest in a Loan funded pursuant to a Commitment is the date on which the Lender enters into the applicable Commitment, but the date on which a Lender acquires an interest in a Loan not funded pursuant to a Commitment is the date on
which the Lender acquires an interest in the applicable Loan); provided that this clause (i) shall not apply to a Lender that becomes a Lender pursuant to an assignment
request by the Company under Section 2.16(b), or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lender’s assignor
immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and
(d) any withholding Taxes imposed under FATCA. For purposes of clause (b)(i) of this definition, a participation acquired pursuant to Section 2.15(c) shall be treated as having been acquired on the earlier date(s) on which the applicable Lender
acquired the applicable interests in the Commitments or Loans to which such participation relates.
“Existing Credit Agreement” means the Second Amended and Restated
Refinancing Credit Agreement dated as of June 22, 2016 (as amended as of April 19, 2017, and as further amended as of October 11, 2017), among the Company, the other borrower party thereto, the guarantors party thereto, the lenders party thereto
and PNC, as administrative agent.
“Existing Credit Agreement Refinancing” means the payment in full of
all principal, interest, fees and other amounts due or outstanding under the Existing Credit Agreement, the cancellation of all letters of credit issued and outstanding thereunder (other than any such letter of credit designated hereunder as an
Existing Letter of Credit or cash collateralized or backstopped in a manner satisfactory to the issuing bank in respect thereof), the termination of all commitments thereunder and discharge or release of all Guarantees thereunder.
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“Existing Letter of Credit” means each letter of credit or bank
guaranty issued for the account of any Borrower under the Existing Credit Agreement that is (a) outstanding on the Effective Date and (b) listed on Schedule 2.20(b).
“Existing Revolving Borrowings” has the meaning set forth in Section
2.18(e).
“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 agreements entered into pursuant
to Section 1471(b) of the Code as of the date of this Agreement (or any amended or successor version described above), any intergovernmental agreement (and any related fiscal or regulatory legislation, rules or official practices) implementing
the foregoing.
“Federal Funds Effective Rate” means, for any day, the rate
calculated by the NYFRB based on such day’s federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding business
day by the NYFRB as the federal funds effective rate; provided that if such rate shall be less than zero, the Federal Funds Effective Rate shall be deemed to be zero.
“Fee Letters” means (a) the Arranger Fee Letter dated May 20, 2018,
between the Company and Goldman Sachs Bank USA, (b) the Administrative Agent Fee Letter dated June 8, 2018, between the Company and PNC, and (c) the Fee Letter dated May 20, 2018, between the Company and Goldman Sachs Bank USA.
“Fiscal Quarter” means a fiscal quarter of a Fiscal Year.
“Fiscal Year” means the fiscal year of the Company and its
Subsidiaries, which period shall be the 12-month period ending on December 31 of each year.
“Fitch” means Fitch Ratings, Inc., or any successor to its rating
agency business.
“Foreign Benefit Event” means, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the failure to make the required
contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to
appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the complete or partial withdrawal of any participating Borrower or Subsidiary therefrom or (e)
the occurrence of any transaction that is prohibited under any applicable law and that could reasonably be expected to result in the incurrence of any liability by the Company or any Subsidiary, or the imposition on the Company or any
23
Subsidiary of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case.
“Foreign Borrowing Subsidiary” means any Borrowing Subsidiary that is
a Foreign Subsidiary.
“Foreign Lender” means a Lender that is not a US Person.
“Foreign Pension Plan” means any benefit plan that under applicable
law of any jurisdiction other than the United States is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority.
“Foreign Subsidiary” means a Subsidiary of the Company which is not a
Domestic Subsidiary.
“GAAP” means, subject to Section 1.04, generally accepted accounting
principles in the United States of America, applied in accordance with the consistency requirements thereof.
“GET Acquired Business Material Adverse Effect” means a material
adverse effect on the business, condition (financial or otherwise) or results of operations of the Tiger Business, taken as a whole, excluding any effect resulting from (i) changes (or proposed changes) in GAAP, the regulatory accounting
requirements applicable to any industry in which the Tiger Business operates or Applicable Law, including the interpretation or enforcement thereof, (ii) changes in the financial, credit or securities markets (including changes in prevailing
interest rates, credit availability and liquidity, currency exchange rates, price levels or trading volumes in any securities market) or general economic or political conditions, (iii) changes or conditions generally affecting the industry or
segments thereof in which the Tiger Business operates, (iv) acts of war, sabotage or terrorism or natural disasters, (v) the announcement or consummation of the transactions contemplated by the Agreement, the Separation Agreement or any Ancillary
Agreement (including the Internal Reorganization, the SpinCo Transfer, the Direct Sale, the Distribution and the Merger) or the identity of the other parties hereto, including, in each case, with respect to employees, customers, distributors,
suppliers, financing sources, landlords, licensors and licensees (provided that this clause (v) shall not apply to any representation or warranty contained in the
Agreement to the extent that the purpose of such representation or warranty is to address the consequences of the execution of the Agreement, the Separation Agreement or any Ancillary Agreement or the consummation of the transactions contemplated
hereby or thereby), (vi) (A) any failure by the Tiger Business to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period or (B) any change in the Company’s stock price or trading
volume (it being understood that the underlying cause of, or factors contributing to, any such failure or change referred to in clause (A) or (B) may be taken into account in determining whether an Acquired Business Material Adverse Effect has
occurred, unless such underlying cause or factor would otherwise be excepted by another clause of this definition), (vii) actions required or expressly contemplated by the Agreement or taken by
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the Company, SpinCo or any of their respective Affiliates at the written direction of or with the written consent of Parent, or (viii) any stockholder or derivative
litigation arising from or relating to the Agreement or the transactions contemplated hereby, except, in the case of clauses (i) through (iii), to the extent that such effect has a disproportionate effect on the Tiger Business, taken as a whole,
as compared with other participants in the industries in which the Tiger Business operates. All capitalized terms used above in this definition shall have the meanings assigned thereto in the GET Merger Agreement (as in effect on the Signing
Date).
“GET Acquisition” means (a) the consummation of the GET Direct Sale
and (b) the acquisition by the Company of 100% of the issued and outstanding voting Capital Securities in GET SpinCo pursuant to the GET Merger Agreement through the merger (the “GET Merger”) of GET Merger Sub with and into GET SpinCo, with GET
SpinCo surviving the GET Merger as a wholly owned Subsidiary of the Company (except with respect to the shares of SpinCo Class A Preferred Stock (as defined in the GET Separation Agreement) held by directly or indirectly by the GET Seller).
“GET Acquisition Closing Date” means the date of the consummation of
the GET Acquisition.
“GET Acquisition Indebtedness” means any Indebtedness (other than the
Loans) of the Company or any of its Subsidiaries in the form of a loan or credit facility incurred to finance, in whole or in part, (a) the GET Acquisition (including the GET Direct Sale) and the related transactions or (b) the refinancing of any
Bridge Loans (if any) or any other interim Indebtedness incurred by the Company or any of its Subsidiaries to finance the GET Acquisition (including the GET Direct Sale) and the related transactions.
“GET Direct Sale” means the “Direct Sale” as defined in the GET
Separation Agreement.
“GET Direct Sale Purchaser” means Wabtec US Rail, Inc., a Delaware
corporation that is a newly formed wholly owned Subsidiary of the Company.
“GET Distribution” means the “Distribution” as defined in the GET
Separation Agreement.
“GET Internal Reorganization” means the “Internal Reorganization” as
defined in the GET Separation Agreement.
“GET Merger” has the meaning set forth in the definition of the term
“GET
Acquisition”.
“GET Merger Agreement” means the agreement and plan of merger dated
as of May 20, 2018 (as amended by that certain Amendment to Agreement and Plan of Merger dated as of January 25, 2019), among the GET Seller, GET SpinCo, the Company and GET Merger Sub, together with the exhibits and schedules thereto and the
ancillary agreements referred to therein.
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“GET Merger Agreement Representations” means such representations and warranties made in the GET Merger Agreement by
the GET Seller as are material to the interests of the Lenders, but only to the extent that the Company or any of its Affiliates (a) has the right to not consummate the GET Direct Sale or the GET Merger or to terminate its obligations or (b) otherwise does not have an obligation to close, in each case, under the GET Separation Agreement or
the GET Merger Agreement, as applicable, as a result of a failure of such representations and warranties in the GET Merger Agreement to be true and correct.
“GET Merger Sub” means Wabtec US Rail Holdings, Inc., a Delaware
corporation that is a newly formed wholly owned Subsidiary of the Company.
“GET Seller” means General Electric Company, a New York corporation.
“GET Separation Agreement” means the separation, distribution and
sale agreement dated as of May 20, 2018 (as amended by that certain Amendment to Separation, Distribution and Sale Agreement dated as of January 25, 2019), among the GET Seller, GET SpinCo, the Company and the GET Direct Sale Purchaser, together
with the exhibits, schedules and annexes thereto and the ancillary agreements referred to therein.
“GET SpinCo” means Transportation Systems Holdings Inc., a Delaware
corporation.
“GET SpinCo Transfer” means the “SpinCo Transfer” as defined in the
GET Separation Agreement.
“Governmental Authority” means (a) any nation or government, any
federal, state, local or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions and (b) 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 Indebtedness 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 Indebtedness 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 Indebtedness 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
Indebtedness or (d) as an account party in respect of any letter of credit, bank guaranty or a similar instrument issued to support such Indebtedness; provided that the
term “Guarantee” shall not include endorsements for collection or deposit in the ordinary
26
course of business. The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of the Indebtedness
guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii) any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date
of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by the chief financial officer of the Company)).
“Guarantee Agreement” means the Guarantee Agreement dated as of the
date hereof, among the Company, the Subsidiary Guarantors and the Administrative Agent, substantially in the form of Exhibit E, together with all supplements thereto.
“Guaranteed Borrowing Subsidiary Obligations” has the meaning set
forth in Section 9.01.
“Guarantee Requirement” means, at any time, the requirement that the
Administrative Agent shall have received from the Company and each Designated Subsidiary either (a) a counterpart of the Guarantee Agreement duly executed and delivered on behalf of such Person or (b) in the case of any Person that becomes a
Designated Subsidiary after the Effective Date, a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, together with certificates, documents and opinions of the type referred
to in paragraphs (c) and (d) of Section 4.01 with respect to such Designated Subsidiary.
Notwithstanding the foregoing:
(i) this definition shall not require the provision of a Guarantee by any Subsidiary, or the obtaining of legal
opinions or other deliverables, if and for so long as the Administrative Agent determines, in consultation with the Company, that the cost of providing such Guarantee or obtaining such legal opinions or other deliverables shall be excessive in
relation to the benefit to be afforded to the Lenders therefrom; and
(ii) the Administrative Agent may grant extensions of time for the provision of a Guarantee by any Subsidiary, or the
obtaining of legal opinions or other deliverables with respect to any Subsidiary, where it determines, in consultation with the Company, that such action cannot be accomplished without undue effort or expense by the time or times at which it
would otherwise be required to be accomplished by this Agreement or the Guarantee Agreement.
“Hazardous Substances” means (a) any petroleum or petroleum products,
by-products or derivatives, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, polychlorinated biphenyls, radon gas and mold, (b) any chemicals, materials, wastes, pollutants or
substances listed, classified or defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”,
“contaminants”, “pollutants”, or words of similar
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import, under any applicable Environmental Law, and (c) any other chemical, material, waste or substance, the exposure to or release of which is prohibited, limited
or regulated by any Governmental Authority or for which any duty or standard of care is imposed pursuant to any Environmental Law.
“Hedging Agreement” means any agreement with respect to any swap,
forward, future or derivative transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies, commodities, prices of equity or debt securities or instruments, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing transactions; provided that none
of the following shall constitute a Hedging Agreement: (a) any phantom stock or similar plan providing for payments only on account of services provided by, or any stock option or stock compensation plan providing for grants to, current or former
directors, officers, employees or consultants of the Company or the Subsidiaries; (b) any issuance by the Company of Convertible Indebtedness or warrants or options entitling third parties to purchase the Company’s common stock (or, at the
Company’s option, to receive cash in lieu thereof); (c) any purchase of Capital Securities or Indebtedness (including Convertible Indebtedness) of the Company pursuant to delayed delivery contracts; or (d) any of the foregoing to the extent it
constitutes a derivative embedded in a convertible security issued by the Company.
“Hedging Liabilities” of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor), under any and all Hedging Agreements.
“Incremental Commitment” means an Incremental Revolving Commitment or
an Incremental Term Commitment.
“Incremental Facility Agreement” means an Incremental Facility
Agreement, in form and substance reasonably satisfactory to the Company and the Administrative Agent, among the Company, the Administrative Agent and one or more Incremental Lenders, establishing Incremental Term Commitments or Incremental
Revolving Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.18.
“Incremental Lender” means an Incremental Revolving Lender or an
Incremental Term Lender, as applicable.
“Incremental Revolving Commitment” means, with respect to any Lender,
the commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.18, to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder.
“Incremental Revolving Lender” means a Lender with an Incremental
Revolving Commitment.
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“Incremental Term Commitment” means, with respect to any Lender, the
commitment, if any, of such Lender, established pursuant to an Incremental Facility Agreement and Section 2.18, to make Incremental Term Loans of any Class to the Company hereunder.
“Incremental Term Lender” means each Lender with an Incremental Term
Commitment or an outstanding Incremental Term Loan.
“Incremental Term Loan” means a Loan made by an Incremental Term
Lender to the Company pursuant to Section 2.18.
“Incremental Term Maturity Date” means, with respect to Incremental
Term Loans of any Class, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable Incremental Facility Agreement.
“Indebtedness” of any Person means, without duplication, (a) all
indebtedness of such Person, (b) all borrowed money of such Person, whether or not evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person as lessee under Capital Leases that have been or should be
recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (d) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business
and earn-out or other contingent payment obligations arising in connection with an Acquisition), (e) all obligations of a type set forth in clause (a), (b), (c), (d) or (f) of this definition secured by a Lien on the property of such Person,
whether or not such obligations shall have been assumed by such Person; provided that if such Person has not assumed or otherwise become liable for such obligations,
the amount of Indebtedness under this clause (e) shall be the lesser of (i) the principal amount of such obligations and (ii) the fair value of such property securing such obligations at the time of determination, (f) all obligations, contingent
or otherwise, with respect to the face amount of all letters of credit (whether or not drawn), bankers’ acceptances, bank guaranties and similar obligations issued for the account of such Person, (g) all net Hedging Liabilities of such Person,
(h) all Guarantees of such Person, (i) all Attributable Debt of such Person and (j) all Indebtedness of any partnership of which such Person is a general partner and to the extent liable for such Indebtedness.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes,
imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes; provided, however, that VAT shall not be an Indemnified Tax but shall instead be governed by the provisions of Section 2.14(h).
“Indemnitee” has the meaning set forth in Section 10.03(b).
“Interest Coverage Ratio” means, for any Computation Period, the ratio of (a) EBITDA for such Computation Period to (b) Interest Expense for such Computation Period.
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“Interest Election Request” means a request by or on behalf of a Borrower to convert or continue a Borrowing in accordance with Section
2.05, which shall be in the form of Exhibit F or any other form approved by the Administrative Agent.
“Interest Expense” means, for any period, the consolidated interest
expense of the Company and its Subsidiaries for such period (including all imputed interest on Capital Leases), determined on a consolidated basis in accordance with GAAP. Notwithstanding the foregoing, if the GET Acquisition Closing Date shall
have occurred, Interest Expense shall be deemed to be (a) for the Computation Period ended on the last day of the first Fiscal Quarter ending after the GET Acquisition Closing Date, Interest Expense for such Fiscal Quarter multiplied by four, (b)
for the Computation Period ended on the last day of the second Fiscal Quarter ending after the GET Acquisition Closing Date, Interest Expense for the two consecutive Fiscal Quarters then most recently ended multiplied by two, and (c) for the
Computation Period ended on the last day of the third Fiscal Quarter ending after the GET Acquisition Closing Date, Interest Expense for the three consecutive Fiscal Quarters then most recently ended multiplied by 4/3; provided that, in the event the GET Acquisition Closing Date shall have occurred after the first day of the first Fiscal Quarter ending after the GET Acquisition Closing Date, Interest
Expense for such Fiscal Quarter shall be deemed, for purposes of clauses (a), (b) and (c) above, to be Interest Expense for the period from and including the GET Acquisition Closing Date to and including the last day of such Fiscal Quarter,
multiplied by a fraction equal to (x) 90 divided by (y) the number of days actually elapsed from and including the GET Acquisition Closing Date to and including the last day of such Fiscal Quarter.
“Interest Payment Date” means (a) with respect to any ABR Loan
(including any Swingline Loan), the first Business Day following the last day of each March, June, September and December and (b) with respect to any LIBOR Loan or CDOR Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part (and, in the case of a LIBOR Borrowing or CDOR Borrowing with an Interest Period of more than three months’ duration, such day or days prior to the last day of such Interest Period as shall occur at intervals of three
months’ duration after the first day of such Interest Period).
“Interest Period” means, with respect to any LIBOR Borrowing or CDOR
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,
three or six months thereafter (or, if consented to by each Lender participating in such Borrowing, 12 months thereafter), as the applicable
Borrower may elect; provided that (a) 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 (b) any Interest Period 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
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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.
“Interpolated Screen Rate” means, with respect to any currency for
any period, a rate per annum that results from interpolating on a linear basis between (a) the applicable Screen Rate for the longest maturity for which a Screen Rate is available that is shorter than such period and (b) the applicable Screen
Rate for the shortest maturity for which a Screen Rate is available that is longer than such period, in each case, as of the time the Interpolated Screen Rate is required to be determined in accordance with the other provisions hereof; provided that the Interpolated Screen Rate shall in no event be less than zero.
“IRS” means the Internal Revenue Service and any Person succeeding to
the functions thereof.
“ISP” means, with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
“Issuing Bank” means (a) PNC, (b) Goldman Sachs Bank USA, (c) Bank of
America, N.A., (d) HSBC Bank USA, N.A., (e) JPMorgan Chase Bank, N.A., (f) TD Bank, N.A. and (g) each Lender that shall have become an Issuing Bank hereunder as provided in Section 2.20(i) (other than any Person that shall have ceased to be an
Issuing Bank as provided in Section 2.20(j)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Issuing Bank,
in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause such Affiliate to, comply with the requirements of
Section 2.20 with respect to such Letters of Credit).
“Judgment Currency” has the meaning set forth in Section 10.18(b).
“LC Commitment” means, with respect to any Issuing Bank, the maximum
permitted amount of the LC Exposure that may be attributable to Letters of Credit issued by such Issuing Bank. The initial amount of each Issuing Bank’s LC Commitment is set forth on Schedule 2.20(a) or, in the case of any Issuing Bank that
becomes an Issuing Bank hereunder pursuant to Section 2.20(i), in a written agreement referred to in such Section or, in each case, such other maximum permitted amount with respect to any Issuing Bank as may have been agreed in writing (and
notified in writing to the Administrative Agent) by such Issuing Bank and the Company.
“LC Currency” means, with respect to Letters of Credit to be issued
by any Issuing Bank, (a) US Dollars and (b) any other Eligible Currency that such Issuing Bank shall agree shall constitute an “LC Currency” for purposes hereof.
“LC Disbursement” means a payment made by any Issuing Bank pursuant
to a Letter of Credit. The amount of any LC Disbursement made by an Issuing Bank in
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any LC Currency (other than US Dollars) and not reimbursed by the applicable Borrower shall be determined as set forth in Section 2.20(f) or 2.20(l), as applicable.
“LC Exchange Rate” means, on any day, with respect to US Dollars in
relation to any LC Currency (other than US Dollars), the rate at which US Dollars may be exchanged into such LC Currency, determined by using the closing rate of exchange as of the Business Day immediately preceding the date of determination, as
such closing rate of exchange is displayed on the applicable Reuters World Currency Page. In the event that such rate is not displayed on the applicable Reuters World Currency Page, (a) the LC Exchange Rate shall be determined by reference to
such other publicly available service for providing exchange rates as may be agreed upon by the Administrative Agent and the Company or (b) in the absence of such an agreement, the LC Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent or one of its Affiliates in the market where its, or its Affiliate’s, foreign currency exchange operations in respect of such currency are then being conducted, at or as near as practicable to
such time of determination, on such day for the purchase of such LC Currency with US Dollars for delivery two Business Days later, provided that if at the time of such
determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any reasonable method it reasonably deems appropriate to determine such rate, and such determination shall be conclusive absent manifest error.
“LC Exposure” means, at any time, the sum of (a) the sum of the US
Dollar Equivalents (based on the applicable Exchange Rates) of the aggregate amount of all Letters of Credit that remains available for drawing at such time and (b) the sum of the US Dollar Equivalents (based on the applicable Exchange Rates) of
the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrowers at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such
time, adjusted to give effect to any reallocation under Section 2.17(c) of the LC Exposure of Defaulting Lenders in effect at such time.
“LC Participation Calculation Date” means, with respect to any LC
Disbursement made by any Issuing Bank or any refund of a reimbursement payment made by any Issuing Bank to any Borrower, in each case in an LC Currency other than US Dollars, (a) the date on which such Issuing Bank shall advise the Administrative
Agent that it purchased with US Dollars the LC Currency used to make such LC Disbursement or refund or (b) if such Issuing Bank shall not advise the Administrative Agent that it made such a purchase, the date on which such LC Disbursement or
refund is made.
“Lender Parent” means, with respect to any Lender, any Person in
respect of which such Lender is a subsidiary.
“Lenders” means the Persons listed on Schedule 2.01, any Bridge
Lender that shall have become a party hereto pursuant to the Bridge Facility Agreement, any Incremental Lender that shall have become a party hereto pursuant to an Incremental Facility Agreement and any other Person that shall have become a party
hereto pursuant to an Assignment and Assumption, other than any such Person that shall have ceased to be a
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party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.
“Letter of Credit” means each Existing Letter of Credit and any other
letter of credit or bank guaranty issued pursuant to this Agreement, in each case other than any such letter of credit or bank guaranty that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 10.05.
“Leverage Ratio” means, as of any date of determination, the ratio of
(a) (i) Total Debt on such date of determination less (ii) Unrestricted Cash on such date of determination, provided that the amount deducted pursuant to this clause
(ii) may not in any event exceed, as of any date of determination, US$300,000,000, to (b) EBITDA for the most recently ended Computation Period (including any Computation Period ending on the date of determination).
“LIBO Rate” means, with respect to any LIBOR Borrowing denominated in
any currency for any Interest Period, the applicable Screen Rate as of the Specified Time on the Quotation Day.
“LIBOR”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, shall bear interest at a rate determined by reference to the Adjusted LIBO Rate.
“Lien” means any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily given, including any conditional sale or title retention arrangement, and any assignment, deposit arrangement or lease
intended as, or having the effect of, security.
“Loan Document Obligations” means (a) the due and punctual payment by
each Borrower of the principal of and premium, if any, and interest (including interest accruing, at the rate specified herein, during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) on all Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) the due and punctual payment by each Borrower of each payment required to be
made by such Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of LC Disbursements, interest thereon (including interest accruing, at the rate specified herein,
during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and obligations to provide cash collateral and (c) the due and punctual payment or
performance by each Borrower and each Subsidiary Guarantor of all other monetary obligations under this Agreement or any other Loan Document, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations accruing, at the rate specified herein or therein, or incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding).
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“Loan Documents” means this Agreement, the Guarantee Agreement, each Borrowing Subsidiary Accession Agreement, each Borrowing Subsidiary Termination, any
agreement designating an additional Issuing Bank as contemplated by Section 2.20(i), the Bridge Facility Agreement (if any), each Incremental Facility Agreement and, except for purposes of Section 10.02, any promissory notes delivered pursuant
to Section 2.07(f) and each written agreement (if any) between the Company and any Issuing Bank regarding such Issuing Bank’s LC Commitment.
“Loan Parties” means the Company, the Borrowing Subsidiaries and the Subsidiary Guarantors.
“Loans” means the loans made by the Lenders to the Borrowers pursuant to this Agreement.
“Local Time” means (a) with respect to a Loan or Borrowing denominated in US Dollars or any Letter of Credit, New York City time, (b) with respect to a
Loan or Borrowing denominated in Canadian Dollars, Toronto time, and (c) with respect to a Loan or Borrowing denominated in an Alternative Currency other than Canadian Dollars, London time.
“Majority in Interest”, when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having
Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the aggregate Revolving Exposures and the aggregate amount of the unused Revolving Commitments at such time and (b) in the case of the Term Lenders of
any Class, Lenders having Term Loans of such Class (or, in the case of the Delayed Draw Term Lenders prior to the borrowing of the Delayed Draw Term Loans hereunder on the Delayed Draw Term Funding Date, Delayed Draw Term Commitments)
representing more than 50% of the aggregate outstanding principal amount of all the Term Loans of such Class (or, in the case of the Delayed Draw Term Lenders prior to the borrowing of the Delayed Draw Term Loans hereunder on the Delayed Draw
Term Funding Date, the aggregate amount of the Delayed Draw Term Commitments) at such time.
“Margin Stock” has the meaning set forth in Regulation U.
“Material Acquisition” means any Acquisition in which the aggregate consideration payable by the Company and its Subsidiaries has a value of US$10,000,000
or more.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business
or properties of the Company and its Subsidiaries, taken as a whole, (b) a material impairment of the ability of the Loan Parties, taken as a whole, to perform any of the payment Obligations under any Loan Document or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
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“Material Disposition” means any Disposition in which the aggregate consideration received by the Company and its Subsidiaries has a value of
US$10,000,000 or more.
“Material Indebtedness” means Indebtedness (other than under the Loan Documents) of any one or more of the Company and the Subsidiaries in an aggregate
outstanding principal amount of US$100,000,000 or more. For purposes of determining Material Indebtedness, the “principal amount” of the Hedging Liabilities of the Company or any Subsidiary in respect of any Hedging Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that the Company or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
“Material Subsidiary” means each Subsidiary of the Company (a) the consolidated total assets of which equal 5.0% or more of the consolidated total assets
of the Company or (b) the consolidated revenues of which equal 5.0% or more of the consolidated revenues of the Company, in each case as of the end of or for the most recent period of four consecutive Fiscal Quarters of the Company for which
financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the first delivery of any such financial statements, as of the end of or for the period of four consecutive Fiscal Quarters of the Company most
recently ended prior to the date of this Agreement); provided that if at the end of or for any such most recent period of four consecutive Fiscal Quarters the combined consolidated total assets or combined consolidated revenues of all
Subsidiaries that under clauses (a) and (b) above would not constitute Material Subsidiaries shall have exceeded 10.0% of the consolidated total assets of the Company or 10.0% of the consolidated revenues of the Company, then, unless the
Company otherwise designates Subsidiaries in writing, one or more of such excluded Subsidiaries shall for all purposes of this Agreement be deemed to be Material Subsidiaries in descending order based on the amounts of their consolidated total
assets or consolidated revenues, as the case may be, until such excess shall have been eliminated. For purposes of this definition, on and after the Delayed Draw Term Funding Date (including for purposes of determining whether any Subsidiary
acquired pursuant to the GET Acquisition constitutes a Material Subsidiary), the consolidated total assets and consolidated revenues of the Company as of any date prior to, or for any period that commenced prior to, the Delayed Draw Term
Funding Date shall be determined on a pro forma basis to give effect to the GET Acquisition and the other Transactions to occur on the Delayed Draw Term Funding Date.
“Maturity Date” means the Refinancing Term Maturity Date, the Delayed Draw Term Maturity Date or the Revolving Maturity Date, as applicable.
“Maximum Rate” has the meaning set forth in Section 10.13.
“MNPI” means material information concerning the Company or any Subsidiary, or any of their securities, that has not been disseminated in a manner making
it available to investors generally, within the meaning of Regulation FD under the Securities Act and the Exchange Act. For purposes of this definition, “material information” means information concerning the Company or any Subsidiary, or any
of their securities, that
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could reasonably be expected to be material for purposes of the United States federal and state securities laws.
“Moody’s” means Moody’s Investors Service, Inc., or any successor to the rating agency business thereof.
“Multiemployer Plan” means any employee pension benefit plan which is a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA and to
which the Company or any member of the ERISA Group are then making or accruing an obligation to make contributions or, within the preceding five plan years, has made or had an obligation to make such contributions.
“Non-Defaulting Revolving Lender” means, at any time, any Revolving Lender that is not a Defaulting Lender at such time.
“Non-Public Lender” means (a) until the publication of an interpretation of “public” as referred to in the CRR by the competent authority or authorities,
an entity that (i) assumes rights and/or obligations vis-à-vis a Borrower incorporated in the Netherlands, the value of which is at least €100,000 (or its equivalent in another currency), (ii) provides repayable funds for an initial amount of
at least €100,000 (or its equivalent in another currency), or (iii) otherwise qualifies as not forming part of the public; and (b) as soon as the interpretation of the term “public” as referred to in the CRR has been published by the competent
authority or authorities, an entity which is not considered to form part of the public on the basis of such interpretation.
“Nordco Acquisition” means the acquisition by the Company or one or more of its Subsidiaries of all of the
Capital Securities of Nordco Holdings, Inc. pursuant to the Stock Purchase Agreement dated as of March 10, 2021, among Nordco Holdings, Inc., Nordco Holdings, LLC, Greenbriar Equity Fund III, LP, Westinghouse Air Brake
Technologies Corporation, and Greenbriar NH Representative LLC.
“NYFRB” means the Federal Reserve Bank of New York.
“Obligations” means (a) the Loan Document Obligations, (b) the Designated Cash Management Obligations and (c) the Designated Hedge Obligations, excluding,
with respect to any Subsidiary Guarantor, Excluded Swap Obligations with respect to such Subsidiary Guarantor.
“Obligor” has the meaning set forth in Section 9.01.
“OFAC” means the United States Treasury Department Office of Foreign Assets Control.
“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
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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, Letter of Credit 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 2.16).
“Parent Guarantee” means the Guarantee and other obligations of the Company set forth in Article IX.
“Participant Register” has the meaning set forth in Section 10.04(c)(ii). “Participants” has the meaning set forth in Section 10.04(c)(i).
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any successor.
“Pension Plan” means at any time an “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA) (including a “multiple employer
plan” as described in Sections 4063 and 4064 of ERISA, but not a Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 or Section 430 of the Code and either (a) is sponsored,
maintained or contributed to by the Company or any member of the ERISA Group for employees of the Company or any member of the ERISA Group or (b) has at any time within the preceding five years been sponsored, maintained or contributed to by
any Person that was at such time a member of the ERISA Group for employees of any Person that was at such time a member of the ERISA Group, or in the case of a “multiple employer” or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.
“Performance Letter of Credit” means (a) a standby letter of credit issued to secure performance obligations, including, without
limitation, the performance of services and/or delivery of goods by or on behalf of the Company and its Subsidiaries, advance payment, retention or warranty obligations, in each case in connection with business activities of the Company or its
Subsidiaries or bids for prospective projects, and (b) a standby letter of credit issued to back a bank guarantee, surety bond, performance bond
or other similar obligation, in each case, issued to support obligations of the type described in clause (a) above.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
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“Platform” has the meaning set forth in Section 10.01(d).
“PNC” means PNC Bank, National Association.
“Prime Rate” means the rate of interest per annum publicly announced from time to time by PNC as its prime rate in effect at its principal office in
Pittsburgh, Pennsylvania, which rate may not be the lowest or most favorable rate then being charged commercial borrowers or others by PNC. Each change in the Prime Rate shall be effective from and including the date such change is publicly
announced as being effective.
“Private Side Lender Representatives” means, with respect to any Lender, representatives of such Lender that are not Public Side Lender Representatives.
“PTE” means a prohibited transaction class exemption issued by the US Department of Labor, as any such exemption may be amended from time to time.
“Public Side Lender Representatives” means, with respect to any Lender, representatives of such Lender that do not wish to receive MNPI.
“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 set forth in Section 10.20.
“Quotation Day” means (a) with respect to any currency (other than Sterling and Canadian Dollars) for any Interest Period, two Business Days prior to the
first day of such Interest Period and (b) with respect to Sterling or Canadian Dollars for any Interest Period, the first day of such Interest Period, in each case unless market practice differs in the Relevant Interbank Market for any
currency, in which case the Quotation Day for such currency shall be determined by the Administrative Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the
Relevant Interbank Market on more than one day, the Quotation Day shall be the last of those days).
“Recipient” means the Administrative Agent, the Swingline Lender, any other Lender, any Issuing Bank or any combination thereof (as the context requires).
“Refinancing Term Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make a Refinancing Term Loan on the Effective
Date, expressed as an amount representing the maximum principal amount of the Refinancing Term Loan to be made by such Lender, as such commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Refinancing Term Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its Refinancing Term Commitment, as applicable. The initial aggregate amount of the Lenders’ Refinancing Term Commitments is US$350,000,000.
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“Refinancing Term Facility” means the refinancing term loan facility provided for herein, including the Refinancing Term Commitments and the Refinancing
Term Loans.
“Refinancing Term Lender” means a Lender with a Refinancing Term Commitment or an outstanding Refinancing Term Loan.
“Refinancing Term Loan” means a Loan made pursuant to clause (a) of Section 2.01.
“Refinancing Term Maturity Date” means the third anniversary of the Effective Date.
“Register” has the meaning set forth in Section 10.04(b)(iv).
“Regulation U” means Regulation U of the Board of Governors.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the directors, officers, partners, members, trustees,
employees, agents, administrators, managers, representatives and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration of Hazardous
Substances into or onto the indoor or outdoor environment, including the movement of Hazardous Substances through or in the air, soil, surface water or groundwater.
“Relevant Interbank Market” means (a) with respect to any currency other than Canadian Dollars, the London interbank market and (b) with respect to
Canadian Dollars, the Toronto interbank market.
“Required Lenders” means, at any time, Lenders having Revolving Exposures, unused Revolving Commitments and Term Loans (or, in the case of the Delayed
Draw Term Lenders prior to the borrowing of the Delayed Draw Term Loans hereunder on the Delayed Draw Term Funding Date, Delayed Draw Term Commitments) representing more than 50% of the sum of the Aggregate Revolving Exposure, the aggregate
amount of the unused Revolving Commitments and the aggregate outstanding principal amount of all the Term Loans (and, prior to the borrowing of the Delayed Draw Term Loans hereunder on the Delayed Draw Term Funding Date, the aggregate amount of
the Delayed Draw Term Commitments) at such time.
“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 Capital Securities in
the Company or any Subsidiary, or any payment or distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase,
39
redemption, retirement, acquisition, exchange, conversion, cancelation or termination of, or any other return of capital with respect to, any Capital Securities in the Company or
any Subsidiary.
“Resulting Revolving Borrowings” has the meaning set forth in Section 2.18(e).
“Revolving Availability Period” means the period from and including the Effective Date to but excluding the earlier of the Revolving Maturity Date and the
date of termination of the Revolving Commitments.
“Revolving Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06, (b) increased from time to time pursuant to Section 2.18 or (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04. The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption or the Incremental Facility Agreement pursuant to which such Lender shall have assumed or provided its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders’ Revolving Commitments is US$1,200,000,000.
“Revolving Commitment Fee” has the meaning set forth in Section 2.09(a). “Revolving Exposure” means, with respect to any Lender at any time, the
sum of (a) the sum of the US Dollar Equivalents of the principal amounts of such Lender’s Revolving Loans outstanding at such time, (b) such Lender’s LC Exposure at such time and (c) such Lender’s Swingline Exposure at such time.
“Revolving Facility” means the revolving credit facility provided for herein, including the Revolving Commitments, the Revolving Loans and participations
in Letters of Credit and Swingline Loans.
“Revolving Lender” means a Lender with a Revolving Commitment or Revolving Exposure.
“Revolving Loan” means a Loan made pursuant to clause (c) of Section 2.01.
“Revolving Maturity Date” means the fifth anniversary of the Effective Date.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor to its rating agency business.
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“Sale and Leaseback Transaction” means an arrangement relating to property owned by the Company or any Subsidiary whereby the Company or such Subsidiary
sells or transfers such property to any Person and the Company or any Subsidiary leases such property, or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred, from such Person
or its Affiliates.
“Sanctioned Country” means, at any time, a country, region or territory that itself is the subject of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the US Department
of State or by the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom, (b) any Person organized or resident in a Sanctioned Country or (c) any Person 50% or more
owned or controlled by any Person or Persons described in the preceding clauses (a) and (b).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the US government,
including those administered by OFAC or the US Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom.
“Screen Rate” means (a) in respect of the LIBO Rate for any currency for any Interest Period, or with respect to any determination of the Alternate Base
Rate pursuant to clause (c) of the definition thereof, a rate per annum equal to the London interbank offered rate as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for
deposits in such currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed on the applicable Bloomberg page (currently BBAM1) (or, in the event such rate does not appear on a
Bloomberg page, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion), and (b) in respect of the CDO Rate for any
Interest Period, the average rate per annum for Canadian Dollar bankers acceptances with a term equal to such Interest Period as displayed on the applicable Bloomberg page (currently BTMM CA) (or, in the event such rate does not appear on a
Bloomberg page, on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion); provided that (i) if, as to any
currency, no Screen Rate shall be available for a particular Interest Period but Screen Rates shall be available for maturities both longer and shorter than such Interest Period, than the Screen Rate for such Interest Period shall be the
Interpolated Screen Rate, and (ii) if any Screen Rate, determined as provided above, would be less than zero, such Screen Rate shall for all purposes of this Agreement be zero.
“SEC” means the United States Securities and Exchange Commission.
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“Securities Act” means the United States Securities Act of 1933.
“Securitization Receivables” has the meaning set forth in the definition of the term “Securitization Transaction”.
“Securitization Subsidiary” means any Subsidiary that is a special purpose entity formed for the purpose of
engaging in activities in connection with Securitization Transactions, provided that such Subsidiary (a) does not own any significant assets other than Securitization Receivables, Capital Securities in any other
Securitization Subsidiary, assets relating to its existence and other assets ancillary to any of the foregoing and (b) conducts no business activities other than in connection with Securitization Transactions and activities
incidental thereto; provided further that a Securitization Subsidiary may not be designated as a Borrowing Subsidiary.
“Securitization Transaction” means any transfer by the Company or any Subsidiary of accounts receivable or
interests therein (collectively, the “Securitization Receivables”) (a) to a trust, partnership, corporation or other entity, which transfer is funded in whole or in part, directly or indirectly, by the incurrence or
issuance by the transferee or any successor transferee of Indebtedness, fractional undivided interests or securities that are to receive payments from, or that represent interests in, the cash flow derived from such accounts
receivable or interests, or (b) directly, or indirectly through a special purpose vehicle, to one or more investors or other purchasers. The amount of any Securitization Transaction shall be deemed at any time to be the
aggregate principal or stated amount of the Indebtedness, fractional undivided interests or other securities referred to in the preceding sentence or, if there shall be no such principal or stated amount, the uncollected amount
of the accounts receivable or interests therein transferred pursuant to such Securitization Transaction net of any such accounts receivable or interests therein that have been written off as uncollectible and/or any discount
(but not in excess of the discount that would be usual and customary for securitization transactions of this type in light of the then prevailing market conditions) in the purchase price therefor. For purposes of Section
6.02 only, a Securitization Transaction shall be deemed to be secured by a Lien on the accounts receivable or interests therein that are subject thereto, and such accounts receivable and interests shall be deemed to be assets
of the Company and the Subsidiaries.
“Senior Officer” means, with respect to any Loan Party, any of the Chief Executive Officer; President; Chief Financial Officer; Vice President, Finance;
Vice President, Secretary; Treasurer; Assistant Treasurer; or Corporate Controller of such Loan Party or such other individuals, designated by written notice to the Administrative Agent from the Company, authorized to execute notices, reports
and other documents on behalf of the Loan Parties required hereunder; provided that, when such term is used in reference to any document executed by, or a certification of, a Senior Officer, upon request of the Administrative Agent, the
secretary or assistant secretary of the applicable Loan Party (or the Company on its behalf) shall have delivered (which delivery may be made on the Effective Date) an incumbency certificate to the Administrative Agent as to
42
the authority of such individual. Subject to the foregoing proviso, the Company may amend such list of individuals from time to time by giving written notice of such amendment to
the Administrative Agent.
“Signing Date” means May 20, 2018.
“Specified Representations” means the representations and warranties set forth in the first sentence of Section 3.01 (with respect to the Company and the
Subsidiary Guarantors only), the first sentence of Section 3.02 (with respect to the Company and the Subsidiary Guarantors only), clause (b)(ii) of the second sentence of Section 3.02 (with respect to the articles of incorporation or by-laws or
other organizational documents of the Company and the Subsidiary Guarantors only), clause (b)(iii) of the second sentence of Section 3.02 (with respect to the 2013 Note Indenture or any agreement or other instrument evidencing, governing the
rights of the holders of or otherwise relating to any Material Indebtedness of the Company and its Subsidiaries), 3.03 (with respect to the Company and the Subsidiary Guarantors only), 3.10, 3.11, 3.12 (as of the Delayed Draw Term Funding Date
only) and 3.19.
“Specified Time” means (a) with respect to the LIBO Rate, 11:00 a.m., London time, and (b) with respect to the CDO Rate, 11:00 a.m., Toronto time.
“Statutory 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 percentages (including any marginal, special, emergency or supplemental reserves), expressed as a decimal, established by the Board of Governors to which the Administrative Agent is subject
for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBOR Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Sterling” or “₤” means the lawful currency of the United Kingdom.
“subsidiary” of any Person at any time means any corporation, partnership, limited liability company or other entity of which such Person owns, directly
or indirectly, such number of outstanding Capital Securities as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity.
“Subsidiary” means any subsidiary of the Company.
“Subsidiary Guarantor” means any Designated Subsidiary that is a party to the Guarantee Agreement.
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“Supported QFC” has the meaning set forth in Section 10.20.
“Swap Obligation” means 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.
“Swingline Borrowing Request” means a request by or on behalf of a Borrower for a Swingline Loan in accordance with Section 2.21, which shall be in the
form of Exhibit G or any other form approved by the Swingline Lender and the Administrative Agent.
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Revolving Lender at any time shall be its Applicable Percentage of the total Swingline Exposure at such time, adjusted to give effect to any reallocation under Section 2.17(c) of the Swingline Exposures of Defaulting Lenders in effect at such
time.
“Swingline Lender” means PNC, in its capacity as lender of Swingline Loans hereunder.
“Swingline Loan” means a Loan made pursuant to section 2.21.
“Syndication Agents” means the Persons identified as such on the cover page of this Agreement.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other
charges imposed by any Governmental Authority, including any interest, additions to tax and penalties applicable thereto.
“Term Commitment” means a Refinancing Term Commitment or a Delayed Draw Term Commitment.
“Term Lender” means a Lender with a Term Commitment or an outstanding Term Loan.
“Term Loan” means a Refinancing Term Loan or a Delayed Draw Term Loan.
“Total Debt” means all Indebtedness of the type referred to in clause (a), (b), (c), (d), (f) or (i) of the definition of such term the Company and its
Subsidiaries, determined on a consolidated basis, provided that (a) Total Debt shall not include any obligations of the Company or any Subsidiary arising from any Performance Letter of Credit, surety bonds, performance bonds, bid bonds,
performance guaranties or other similar obligations incurred in the ordinary course of business and that do not support Indebtedness and (b) for purposes of determining Total Debt at any time after the definitive agreement for any Material
Acquisition (including the GET Acquisition) shall have been executed, any Acquisition Indebtedness with respect to such Material
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Acquisition shall, unless such Material Acquisition shall have been consummated, be disregarded.
“Transactions” means (a) the execution, delivery and performance by each Loan Party of the Loan Documents to which it is a party, the borrowing of Loans
and the issuance of Letters of Credit, (b) the GET Internal Reorganization, the GET SpinCo Transfer, the GET Direct Sale, the GET Distribution and the GET Acquisition (including the GET Merger), (c) the Existing Credit Agreement Refinancing and
(d) the payment of fees and expenses in connection with the foregoing.
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing,
is determined by reference to the Adjusted LIBO Rate, the CDO Rate or the Alternate Base Rate.
“UK” and “United Kingdom” each mean the United Kingdom of Great Britain and Northern Ireland.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as
amended form 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.
“Unrestricted Cash” means, as of any date of determination, cash and Cash Equivalent Investments owned on such date by the Company and its Subsidiaries,
as reflected on a consolidated balance sheet of the Company prepared as of such date in accordance with GAAP; provided that (a) such cash and Cash Equivalent Investments do not appear (and in accordance with GAAP would not be required
to appear) as “restricted” on such consolidated balance sheet and (b) for so long as any Acquisition Indebtedness is disregarded for purposes of determining Total Debt in accordance with the definition of such term, all proceeds of such
Acquisition Indebtedness shall be disregarded for purposes of determining Unrestricted Cash.
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“US Dollar Equivalent” means, on any date of determination, (a) with respect to any amount in US Dollars, such amount, and (b) with respect to any amount
in any Alternative Currency or any LC Currency (other than US Dollars), the equivalent in US Dollars of such amount, determined by the Administrative Agent using the Exchange
45
Rate or the LC Exchange Rate, as applicable, with respect to such Alternative Currency or LC Currency in effect for such amount on such date. The US Dollar Equivalent at any time
of the amount of any Letter of Credit, LC Disbursement or Revolving Loan denominated in any currency other than US Dollars shall be the amount most recently determined as provided in Section 1.05(a).
“US Dollars” or “US$” refers to lawful money of the United States of America.
“US Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“US Special Resolution Regimes” has the meaning set forth in Section 10.20.
“US Tax Compliance Certificate” has the meaning set forth in Section 2.14(f)(ii)(B)(3).
“VAT” means (a) any Tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive
2006/112) and (b) any other Tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) of this definition, or imposed elsewhere.
“VAT Recipient” has the meaning set forth in Section 2.14(h).
“VAT Subject Party” has the meaning set forth in Section 2.14(h).
“VAT Supplier” has the meaning set forth in Section 2.14(h).
“WABTEC UA” means WABTEC Coöperatief U.A., a coöperatieve vereniging met uitsluiting van aansprakelijkheid organized
under the laws of the Netherlands and a wholly owned Subsidiary of the Company.
“wholly owned”, when used in reference to a subsidiary of any Person, means that all the Capital Securities in such subsidiary (other than directors’
qualifying shares and other nominal amounts of Capital Securities that are required to be held by other Persons under applicable law) are owned, beneficially and of record, by such Person, another wholly owned subsidiary of such Person or any
combination thereof.
“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
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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 under that Bail-In Legislation that are related to or ancillary to any of those powers.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be classified and referred to by Class (e.g., a “Revolving
Loan” or “Revolving Borrowing”) or by Type (e.g., a “LIBOR Loan” or “LIBOR Borrowing”) or by Class and Type (e.g., a “LIBOR Revolving Loan” or “LIBOR Revolving Borrowing”).
SECTION 1.03. Terms Generally; Dutch Terms. (a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. 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 words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal, tangible and intangible assets and properties. 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, writs and decrees, of all Governmental Authorities. Except as otherwise provided herein and unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document
(including this Agreement and the other Loan Documents) 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), (ii) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time to time amended, supplemented or
otherwise modified, and all references to any statute shall be construed as referring to all rules, regulations, rulings and official interpretations promulgated or issued thereunder, (iii) 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, (iv) 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 and (v) 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.
(b) In this Agreement, where it relates to a Dutch entity, a reference to:
(i) “the Netherlands” refers to the part of the Kingdom of the Netherlands located in
Europe (and all derivative terms, including “Dutch” shall be construed
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accordingly);
(ii) a “director” means a managing director (bestuurder) and “board of directors” means its managing board (bestuur);
(iii) an “action to authorize” or “duly authorized”, where
applicable, includes without limitation any action required to comply with the Dutch Works Council Act (Wet op de ondernemingsraden);
(iv) any “proceeding under any bankruptcy or insolvency law”,
“bankruptcy”, “insolvency”, “winding-up” or “dissolution” includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden);
(v) “bankruptcy, insolvency, receivership or similar proceeding” or
“liquidation proceeding” (or words of similar import) includes an application for moratorium (surseance van betaling) and the appointment of a receiver, liquidator, custodian, trustee includes the
appointment of an administrator and that a moratorium has been granted (surseance verleend);
(vi) any procedure or step taken in connection with insolvency
proceedings includes such Dutch entity having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act
of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990);
(vii) “Capital Securities” includes, in relation to a Dutch entity
that is a cooperative (cooperatie), membership interests in such entity and the capital accounts (kapitaalrekening) of any member in such entity;
(viii) a “trustee” in any bankruptcy or insolvency proceeding or a
“liquidator” includes a curator;
(ix) an “administrator” includes a bewindvoerder;
(x) an “attachment” includes a beslag;
(xi) “gross negligence” means grove
schuld;
(xii) “indemnify” means vrijwaren;
(xiii) “negligence” means schuld;
(xiv) “bad faith” means kwade trouw;
and
(xv) “willful misconduct” means opzet.
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SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature used herein shall be construed in
accordance with GAAP as in effect from time to time; provided that (i) if the Company, by notice to the Administrative Agent, shall request 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 or the Required Lenders, by notice to the Company, shall 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 and (ii) notwithstanding any other provision contained herein, other than for purposes of Sections 3.04,
5.01(a) and 5.01(b), 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, (A)without giving effect to (x) any election under Financial
Accounting Standards Board Accounting Standards Codification 825 (or any other Accounting Standards Codification having a similar result or effect) (and related interpretations) to value any Indebtedness at “fair value”, as defined
therein, or (y) any other accounting principle that results in any Indebtedness being reflected on a balance sheet at an amount less than the stated principal amount thereof, (B) without giving effect to any treatment of Indebtedness in
respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification having a similar result or effect) (and related interpretations) to value any such Indebtedness in a
reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof, and (C) without giving effect to any change in accounting for leases resulting from the
implementation of Financial Accounting Standards Board ASU No. 2016-02, Leases (Topic 842), to the extent any lease (or similar arrangement conveying the right to use) would be required to be treated as a capital lease where such lease
(or similar arrangement) would not have been required to be so treated under GAAP as in effect on December 31, 2016.
(b) All pro forma computations required to be made hereunder giving effect to any Material Acquisition, Material Disposition or other transaction shall be calculated after giving pro
forma effect thereto as if such transaction had occurred on the first day of the Computation Period 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)
(or, prior to the delivery of any such financial statements, ending with the last Fiscal Quarter included in the financial statements referred to in Section 3.04), 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 Indebtedness, all in accordance with Article 11 of Regulation S-X under the Securities Act. If any Indebtedness bears a floating rate of
interest and is being given pro forma effect, the interest on such Indebtedness 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 Hedging
Agreement
49
applicable to such Indebtedness if such Hedging Agreement has a remaining term in excess of 12 months).
SECTION 1.05. Currency Translation. (a) The Administrative Agent shall
determine the US Dollar Equivalent of any Borrowing denominated in an Alternative Currency at the first day of the initial Interest Period therefor and as of the end of such initial Interest Period and each subsequent Interest Period
therefor, in each case using the Exchange Rate for such currency in relation to US Dollars in effect on the date of determination, and each such amount shall, except as provided in the penultimate sentence of this Section, be the US
Dollar Equivalent of such Borrowing until the next required calculation thereof pursuant to this sentence. The Administrative Agent shall determine the US Dollar Equivalent of any Letter of Credit denominated in an LC Currency (other
than US Dollars) on the date such Letter of Credit is issued and as of the last Business Day of each calendar month thereafter, in each case using the Exchange Rate for such LC Currency in relation to US Dollars in effect on the date
of determination, and each such amount shall, except as provided in the penultimate sentence of this Section, be the US Dollar Equivalent of such Letter of Credit until the next required calculation thereof pursuant to this sentence;
provided that the Administrative Agent shall also determine the US Dollar Equivalent of any Letter of Credit denominated in an LC Currency other than US Dollars as provided in Section 2.20(f) and 2.20(l). The Administrative
Agent may also determine the US Dollar Equivalent of any Borrowing denominated in an Alternative Currency or any Letter of Credit denominated in an LC Currency (other than US Dollars) as of such other dates as the Administrative Agent
shall select in its discretion, in each case using the Exchange Rate in effect on the date of determination, and each such amount shall be the US Dollar Equivalent of such Borrowing or such Letter of Credit until the next calculation
thereof pursuant to this Section. The Administrative Agent shall notify the Company and the Revolving Lenders of each determination of the US Dollar Equivalent of each Borrowing denominated in an Alternative Currency and each Letter
of Credit denominated in an LC Currency other than US Dollars.
(b) For purposes of any determination under Article VI or VII, amounts incurred or
outstanding, or proposed to be incurred or outstanding, in currencies other than US Dollars shall be translated into US Dollars at the currency exchange rates in effect on the date of such determination; provided that (i) for
purposes of any determination under Sections 6.01 and 6.02, the amount of each applicable transaction denominated in a currency other than US Dollars shall be translated into US Dollars at the applicable currency exchange rate in
effect on the date of the consummation thereof, which currency exchange rates shall be determined reasonably and in good faith by the Company, and (ii) for purposes of the Leverage Ratio, any other financial test and the related
definitions, amounts in currencies other than US Dollars shall be translated into US Dollars at the currency exchange rates then most recently used in preparing the consolidated financial statements of the Company. Notwithstanding
anything to the contrary set forth herein, but subject to clause (ii) above, (A) no Default shall arise as a result of any limitation or threshold set forth in Article VI expressed in US Dollars in this Agreement being exceeded in
respect of any transaction solely as a result of changes in currency exchange rates from those applicable for determining compliance with this
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Agreement at the time of, or at any time following, such transaction and (B) in the case of any Indebtedness outstanding under any clause of Section 6.01 or secured under
any clause of Section 6.02 that contains a limitation expressed in US Dollars and that, as a result of changes in exchange rates, is so exceeded, such Indebtedness will be permitted to be refinanced notwithstanding that, after giving
effect to such refinancing, such excess shall continue.
SECTION 1.06. Effectuation of Transactions. All references herein to the
Company and the Subsidiaries on the Delayed Draw Term Funding Date shall be deemed to be references to such Persons, and all the representations and warranties of the Loan Parties contained in this Agreement or any other Loan Document
shall be deemed, on the Delayed Draw Term Funding Date, to be made, in each case, after giving effect to the GET Internal Reorganization, the GET SpinCo Transfer, the GET Direct Sale, the GET Distribution, the GET Acquisition
(including the GET Merger) and the other Transactions to occur on the Delayed Draw Term Funding Date, unless the context otherwise expressly requires.
SECTION 1.07. Most Favored Nation Provision. In the event any agreement or
instrument evidencing, governing the rights of the holders of or otherwise relating to any GET Acquisition Indebtedness shall contain (a) any restrictive or financial covenant or any event of default that is either more restrictive
(or more favorable to the holders of such GET Acquisition Indebtedness) than the corresponding restrictive or financial covenant or event of default set forth in this Agreement or is not comparable to any restrictive or financial
covenant or event of default set forth in this Agreement or (b) any requirement that any Subsidiary of the Company guarantee any obligations of the Company or any of its Subsidiaries in respect of such GET Acquisition Indebtedness
that is more favorable to the holders of such GET Acquisition Indebtedness than the requirements with respect to the Guarantees to be provided by the Subsidiary Guarantors set forth herein, then, in each case, this Agreement shall
automatically be deemed to have been amended to incorporate such restrictive or financial covenant or event of default or such requirement, mutatis mutandis, as if set forth fully herein, without any further action
required on the part of any Person. The Company shall give prompt written notice to the Administrative Agent of the effectiveness of any such indenture or other agreement or instrument, providing to the Administrative Agent true and
complete copies thereof, and shall execute any and all further documents and agreements, including amendments hereto, and take (and, if applicable, cause its Subsidiaries to take) all such further actions, as shall be reasonably
requested by the Administrative Agent to give effect to the provisions of this paragraph. Failure by the Company or any Subsidiary to observe or perform any such incorporated restrictive or financial covenant shall constitute an Event
of Default under Section 7.01(c)(i).
SECTION 1.08. 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
51
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
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees (a) to make a Refinancing Term Loan denominated in US Dollars to the Company on the Effective Date in a principal amount not exceeding its Refinancing Term Commitment, (b) to make a Delayed Draw Term Loan
denominated in US Dollars to the Company on the Delayed Draw Term Funding Date in a principal amount not exceeding its Delayed Draw Term Commitment and (c) to make Revolving Loans denominated in US Dollars or Alternative Currencies to
any Borrower from time to time during the Revolving Availability Period in an aggregate principal amount that will not result in any Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment or the Aggregate Revolving
Exposure exceeding the Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline
Loan) shall be made as part of a Borrowing consisting of Loans of the same Class, Type and currency made by the Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to
make Loans as required.
(b) Subject to Section 2.11, (i) each Revolving Borrowing denominated in US
Dollars and each Term Borrowing shall be comprised entirely of ABR Loans or LIBOR Loans, as the applicable Borrower may request in accordance herewith, (ii) each Revolving Borrowing denominated in Canadian Dollars shall be comprised
entirely of CDOR Loans and (iii) each Revolving Borrowing denominated in an Alternative Currency other than Canadian Dollars shall be comprised entirely of LIBOR Loans. Each Swingline Loan shall be denominated in US Dollars and shall
be an ABR Loan. Each Lender at its option may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of
the applicable Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any LIBOR Borrowing or CDOR
Borrowing, such Borrowing shall be in an aggregate amount that is not less than the Borrowing Minimum and in an integral multiple of the Borrowing Multiple in excess thereof; provided that a LIBOR Borrowing or CDOR Borrowing
that results from a continuation of an outstanding LIBOR Borrowing or CDOR Borrowing
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may be in an aggregate amount that is equal to such outstanding Borrowing. At the time that each ABR Borrowing (other than a Swingline Loan) is made, such Borrowing shall
be in an aggregate amount that is not less than the Borrowing Minimum and in an integral multiple of the Borrowing Multiple in excess thereof; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal
to the entire unused balance of the Aggregate Revolving Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.20(f). Each Swingline Loan shall be in an amount that is an integral
multiple of US$100,000 and not less than US$100,000; provided that a Swingline Loan may be in an aggregate amount that is equal to the entire unused balance of the Aggregate Revolving Commitment or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.20(f). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of 12 (or
such greater number as may be agreed to by the Administrative Agent) LIBOR Borrowings and CDOR Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not
be entitled to request, or to elect to convert to or continue, any LIBOR Borrowing or CDOR Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or
Term Borrowing, the applicable Borrower (or the Company on its behalf) shall submit a Borrowing Request, signed by its Senior Officer, to the Administrative Agent (a) in the case of a LIBOR Borrowing denominated in US Dollars, not
later than 11:00 a.m., Local Time, three Business Days before the date of the proposed Borrowing (or, in the case of any such LIBOR Borrowing to occur on the Effective Date or any LIBOR Term Borrowing, such shorter period of time as
may be agreed to in writing by the Administrative Agent), (b) in the case of LIBOR Borrowing denominated in an Alternative Currency or a CDOR Borrowing, not later than 11:00 a.m., Local Time, four Business Days before the date of the
proposed Borrowing (or, in the case of any such Borrowing to occur on the Effective Date, such shorter period of time as may be agreed to in writing by the Administrative Agent) or (c) in the case of an ABR Borrowing, not later than
11:00 a.m., Local Time, on the day of the proposed Borrowing. Each such Borrowing Request shall be irrevocable (except that the Borrowing Request for (x) Loans to be borrowed on the Effective Date may be conditioned on the occurrence
of the Effective Date and (y) the Delayed Draw Term Loans may be conditioned on the consummation of the GET Acquisition) and shall specify the following information in compliance with Section 2.02:
(i) the name of the applicable Borrower;
(ii) whether the requested Borrowing is to be a Term Borrowing
(specifying the Class thereof) or a Revolving Borrowing;
(iii) the currency and principal amount of such Borrowing;
(iv) the date of such Borrowing, which shall be a Business Day;
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(v) the Type of such Borrowing;
(vi) in the case of a LIBOR Borrowing or a CDOR Borrowing, the
initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; an
(vii) the location and number of the account of the applicable
Borrower to which funds are to be disbursed (or such other account as may be designated by (or by the Company on behalf of) the applicable Borrower) or, in the case of any ABR Revolving Borrowing requested to finance the
reimbursement of an LC Disbursement as provided in Section 2.20(f), the identity of the Issuing Bank that made such LC Disbursement.
If no currency is specified with respect to any requested LIBOR Borrowing, then the applicable Borrower shall be deemed to have selected US Dollars. If no election as to
the Type of Borrowing is specified, then the requested Borrowing shall be (A) in the case of a Borrowing denominated in US Dollars, an ABR Borrowing, (B) in the case of Borrowing denominated in an Alternative Currency (other than
Canadian Dollars), a LIBOR Borrowing and (C) in the case of a Borrowing denominated in Canadian Dollars, a CDOR Borrowing. If no Interest Period is specified with respect to any requested LIBOR Borrowing or CDOR Borrowing, then the
applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of
the applicable Class of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds in the applicable currency by (i) in the case of Revolving Loans, 12:00 p.m., Local Time (or, in the case of ABR Revolving
Loans, such later time as shall be two hours after the delivery by or on behalf of the applicable Borrower of a Borrowing Request therefor in accordance with Section 2.03), and (ii) in the case of Term Loans, 10:00 a.m., Local Time
(or, in the case of ABR Term Loans, such later time as shall be two hours after the delivery by the Company of a Borrowing Request therefor in accordance with Section 2.03), in each case, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.21. The Administrative Agent will make such Loans available to the applicable
Borrower by promptly remitting the amounts so received, in like funds, to the account designated in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.20(f) shall be remitted by the Administrative Agent to the applicable Issuing Bank specified in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share
available on such
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date in accordance with paragraph (a) of this Section and may, in reliance on such assumption, make available to the applicable Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree, without duplication, to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in
the case of a payment to be made by such Lender, (A) if denominated in US Dollars, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) if denominated in an Alternative Currency, the greater of the applicable Alternative Currency Overnight Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation, or (ii) in the case of a payment to be made by such Borrower, (A) if denominated in US Dollars, the interest rate applicable to ABR Loans of the applicable Class and (B) if denominated in an Alternative
Currency, the interest rate applicable to the subject Loan pursuant hereto. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall
promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing. Any such payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type and, in the case of a LIBOR Borrowing or a CDOR Borrowing, shall have an initial Interest Period as specified in the applicable Borrowing Request or as otherwise provided in Section 2.03.
Thereafter, the applicable Borrower may elect to convert such Borrowing (if such Borrowing is denominated in US Dollars) to a Borrowing of a different Type or to continue such Borrowing and, in the case of a LIBOR Borrowing or a
CDOR Borrowing, may elect Interest Periods therefor, all as provided in this Section. A Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Notwithstanding any other provision of this Section, no Borrower
shall be permitted to change the currency of any Borrowing or elect an Interest Period for a LIBOR Borrowing or a CDOR Borrowing that does not comply with Section 2.02(d). This Section shall not apply to Swingline Loans, which may
not be converted or continued.
(b) To make an election pursuant to this Section, the applicable Borrower (or
the Company on its behalf) shall submit an Interest Election Request, signed by its Senior Officer, to the Administrative Agent by the time that a Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Revolving Borrowing of the Type and in the currency resulting from such election to be made on the
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effective date of such election. Each such Interest Election Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:
(i) the name of the applicable Borrower, the Borrowing to
which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) the Type of the resulting Borrowing; and
(iv) if the resulting Borrowing is to be a LIBOR Borrowing or
a CDOR Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
If any such Interest Election Request requests a LIBOR Borrowing or a CDOR Borrowing but does not specify an Interest Period, then the applicable Borrower shall be deemed
to have selected an Interest Period of one month’s duration.
(c) Promptly following receipt of an Interest Election Request in accordance
with this Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.
(d) If the applicable Borrower fails to deliver a timely Interest Election
Request with respect to a LIBOR Borrowing or a CDOR Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period (i) in the case
of a LIBOR Borrowing denominated in US Dollars, such Borrowing shall be converted to an ABR Revolving Borrowing and (ii) in the case of any other LIBOR Borrowing or a CDOR Borrowing, such Borrowing shall be continued as a Borrowing
of the applicable Type for an Interest Period of one month.
(e) Notwithstanding any contrary provision hereof, if an Event of Default under
Section 7.01(i) has occurred and is continuing with respect to any Borrower, or if any other Event of Default has occurred and is continuing and the Administrative Agent, at the request of a Majority in Interest of Lenders of any
Class, has notified the Company of the election to give effect to this sentence on account of such other Event of Default, then, in each such case, so long as such Event of Default is continuing, (i) no outstanding Borrowing of such
Class denominated in US Dollars may be converted to or continued as a LIBOR Borrowing, (ii) unless repaid, each LIBOR Borrowing of such Class denominated in US Dollars shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto and (iii) unless repaid, each
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LIBOR Borrowing of such Class denominated in an Alternative Currency and each CDOR Borrowing of such Class shall be continued as a LIBOR Borrowing or CDOR Borrowing, as
applicable, with an Interest Period of one month’s duration.
SECTION 2.06. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Refinancing Term Commitment of each Refinancing Term Lender shall automatically terminate at 5:00 p.m., New York City time, on the Effective Date, (ii) the Delayed Draw Term Commitment of each Delayed
Draw Term Lender shall automatically terminate on the earlier of (A) immediately after the making of the Delayed Draw Term Loan by such Delayed Draw Term Lender on the Delayed Draw Term Funding Date and (B) the Delayed Draw Term
Commitment Termination Date and (iii) the Revolving Commitments shall automatically terminate on the Revolving Maturity Date.
(b) The Company may at any time terminate, or from time to time permanently
reduce, the Commitments of any Class; provided that (i) each reduction of the Commitments of a Class shall be in an amount that is an integral multiple of US$1,000,000 and not less than US$5,000,000 (or, if less, the
remaining Commitments of such Class) and (ii) the Company shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans or Swingline Loans in accordance with
Section 2.08, (A) the Aggregate Revolving Exposure would exceed the Aggregate Revolving Commitment or (B) the Revolving Exposure of any Revolving Lender would exceed its Revolving Commitment.
(c) The Company shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying the effective date thereof. Promptly following receipt of
any such notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided that a notice
of termination or reduction of the Commitments of any Class under paragraph (b) of this Section may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each
reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments of such Class.
SECTION 2.07. Repayment of Loans; Amortization of Term Loans; Evidence of
Debt. (a) Each Borrower hereby unconditionally promises to pay (i) on the Revolving Maturity Date to the Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of each Revolving Loan
made by such Revolving Lender to such Borrower, (ii) on the Refinancing Term Maturity Date to the Administrative Agent for the account of each Refinancing Term Lender the then unpaid principal amount of each Refinancing Term Loan
made by such Refinancing Term Lender to such Borrower, (iii) on the Delayed Draw Term Maturity Date to the Administrative
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Agent for the account of each Delayed Draw Term Lender the then unpaid principal amount of each Delayed Draw Term Loan made by such Delayed Draw Term Lender to such
Borrower and (iv) on the Revolving Maturity Date to the Swingline Lender the then unpaid principal amount of each Swingline Loan made to such Borrower.
(b) The Company shall repay Refinancing Term Loans on the first day of each
Fiscal Quarter, beginning with the first day of the first Fiscal Quarter commencing at least three months after the Effective Date and ending with the last such day to occur prior to the Refinancing Term Maturity Date, in an
aggregate principal amount for each such date equal to 2.50% of the aggregate principal amount of the Refinancing Term Loans outstanding on the Effective Date (as such amount may be adjusted pursuant to paragraph (d) of this
Section).
(c) The Company shall repay Delayed Draw Term Loans on the first day of each
of Fiscal Quarter, beginning with the first day of the first Fiscal Quarter commencing at least three months after the Delayed Draw Term Funding Date and ending with the last such day to occur prior to the Delayed Draw Term Maturity
Date, in an aggregate principal amount for each such date equal to 2.50% of the aggregate principal amount of the Delayed Draw Term Loans outstanding on the Delayed Draw Term Funding Date (as such amount may be adjusted pursuant to
paragraph (d) of this Section).
(d) Any prepayment of a Term Borrowing of any Class shall be applied to reduce
the subsequent scheduled repayments of the Term Borrowings of such Class to be made pursuant to this Section in the manner specified by the Company in the notice of prepayment relating thereto (or, if no such manner is specified in
such notice, in direct order of maturity). Prior to any repayment of any Term Borrowings of any Class under this Section, the Company shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the
Administrative Agent by telephone (promptly confirmed in writing) of such selection not later than 11:00 a.m., Local Time, three Business Days before the scheduled date of such repayment. Each repayment of a Term Borrowing shall be
applied ratably to the Loans included in the repaid Term Borrowing. Repayments of Term Borrowings shall be accompanied by accrued interest on the amounts repaid.
(e) The records maintained by the Administrative Agent and the Lenders shall
(in the case of the Lenders, to the extent they are not inconsistent with the records maintained by the Administrative Agent pursuant to Section 10.04(b)(iv)) be, in the absence of manifest error, prima facie evidence
of the existence and amounts of the obligations of the Borrowers in respect of the Loans, LC Disbursements, interest and fees due or accrued hereunder; provided that the failure of the Administrative Agent or any Lender to
maintain such records or any error therein shall not in any manner affect the obligation of the Borrowers to pay any amounts due hereunder in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans of any Class made by it be evidenced by
a promissory note. In such event, each applicable Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender and its
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registered assigns and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the payee named therein and its registered assigns.
SECTION 2.08. Prepayment of Loans. (a) The Borrowers shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty, subject to the requirements of this Section.
(b) If, on any date, the Aggregate Revolving Exposure shall exceed the
Aggregate Revolving Commitment, then (i) on the last day of any Interest Period for any LIBOR Revolving Borrowing or CDOR Revolving Borrowing and (ii) if any ABR Revolving Borrowing or Swingline Loan is outstanding, not later than
three Business Days following such date, the applicable Borrowers shall prepay Revolving Loans or Swingline Loans in an aggregate amount equal to the lesser of (A) the amount necessary to eliminate such excess (after giving effect
to any other prepayment of Revolving Loans and Swingline Loans on such day) and (B) the amount of the applicable Revolving Borrowings or Swingline Loan referred to in clause (i) or (ii). If, on any date, the Aggregate Revolving
Exposure shall exceed 103% of the Aggregate Revolving Commitment, then the applicable Borrowers shall, not later than three Business Days following such date, prepay one or more Revolving Borrowings or Swingline Loans (and, if no
Revolving Borrowings or Swingline Loans are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.20(n)) in an aggregate amount equal to the lesser of (1) the amount necessary to
eliminate such excess (after giving effect to any other prepayment of Revolving Loans and Swingline Loans on such day) and (2) the Aggregate Revolving Exposure.
(c) The applicable Borrowers shall prepay Revolving Loans denominated in an
Alternative Currency under the circumstances set forth in, and in accordance with, the second sentence of the definition of the term “Alternative Currency”.
(d) The applicable Borrower (or the Company on its behalf) shall notify the
Administrative Agent (and, in the case of a prepayment of a Swingline Loan, the Swingline Lender) by telephone (promptly confirmed in writing) or in writing of any optional prepayment hereunder (i) in the case of prepayment of a
LIBOR Borrowing denominated in US Dollars, not later than 11:00 a.m., Local Time, three Business Days before the date of prepayment, (ii) in the case of a LIBOR Borrowing denominated in an Alternative Currency or a CDOR Borrowing,
not later than 11:00 a.m., Local Time, four Business Days before the date of such prepayment, (iii) in the case of prepayment of an ABR Borrowing (other than a Swingline Loan), not later than 11:00 a.m., Local Time, one Business Day
before the date of prepayment and (iv) in the case of a Swingline Loan, not later than 12:00 p.m., Local Time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the Borrowing or
Borrowings to be prepaid and the principal amount of each such Borrowing or portion thereof to be prepaid; provided that (A) if a notice of optional prepayment of Revolving Borrowings or Swingline Loans is given in
connection with a conditional notice of termination or reduction of the Revolving Commitments as contemplated by Section 2.06, then such
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notice of prepayment may be revoked (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such notice of termination or reduction is
revoked in accordance with Section 2.06 and (B) a notice of optional prepayment of Term Borrowings may state that such notice is conditioned upon the occurrence of one or more events specified therein, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the specified date of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type and currency as provided in Section 2.02 (or, if less, the outstanding principal amount of the Loans). Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The Company agrees to pay to the Administrative
Agent, in US Dollars, for the account of each Revolving Lender a commitment fee (the “Revolving Commitment Fee”), which shall accrue at the Applicable Rate on the average daily unused amount of the Revolving Commitment of
such Lender during the period from and including the Effective Date to but excluding the date on which such Revolving Commitment terminates. Revolving Commitment Fees accrued through and including the last day of March, June,
September and December of each year shall be made payable in arrears on the first Business Day after such last day, commencing on the first such date to occur after the Effective Date, and accrued Revolving Commitment Fees shall
also be payable in arrears on the date on which the Revolving Commitments terminate. All Revolving Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing Revolving Commitment Fees, (i) a Revolving Commitment of a Revolving Lender (other than PNC) shall be deemed to be used to the extent of the outstanding
Revolving Loans and LC Exposure of such Revolving Lender (and the Swingline Exposure of such Revolving Lender shall be disregarded for such purpose) and (ii) the Revolving Commitment of PNC shall be deemed to be used to the extent
of the outstanding Revolving Loans and LC Exposure of PNC and the outstanding Swingline Loans (except any portion of Swingline Loans that are subject to participations purchased by the Revolving Lenders pursuant to Section 2.22(c)).
(b) The Company agrees to pay to the Administrative Agent, in US Dollars, for
the account of each Delayed Draw Term Lender a ticking fee (the “Delayed Draw Term Ticking Fee”), which shall accrue at 0.175% per annum on the daily amount of the Delayed Draw Term Commitment of such Lender during the
period (the “Delayed Draw Term Ticking Fee Accrual Period”) that (i) commences on the date that is 60 days after the Signing Date and (ii) ends on the earlier of (A) the Delayed Draw Term Funding Date and (B) the date
on which the Delayed Draw Term Commitment of such Lender terminates. Accrued Delayed Draw Term Ticking Fees shall be payable in arrears on the last day of the Delayed Draw Term Ticking Fee Accrual Period. All Delayed Draw Term
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Ticking Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Company agrees to pay (i) to the Administrative Agent, in US Dollars,
for the account of each Revolving Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to LIBOR Revolving Loans
on the average daily amount of such Revolving Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of
the date on which such Revolving Lender’s Revolving Commitment terminates and the date on which such Revolving Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting fee, in US Dollars, which shall accrue at
0.125% per annum on the average daily amount of the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any such LC Exposure, as well as such Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March, June, September and December of
each year shall be payable in arrears on the first Business Day after such last day following such day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the
date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this
paragraph shall be payable within 15 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(d) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or to an Issuing Bank, in the case of fees payable to it) for distribution, in the case of the Revolving Commitment Fee, the Delayed Draw Term Ticking Fee and the Letter of Credit
participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each LIBOR Borrowing shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
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(c) The Loans comprising each CDOR Borrowing shall bear interest at the CDO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(d) Notwithstanding the foregoing, if any principal of or interest on any Loan
or any fee or other amount payable by any Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of or interest on any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section, (ii) in the case of overdue
fees with respect to any Commitment, 2.00% per annum plus the rate applicable to ABR Loans that are of the same Class as the Class of such Commitment, as provided in paragraph (a) of this Section, or (iii) in the case of any other
overdue amount, (A) if such amount is payable in US Dollars, 2.00% per annum plus the rate applicable to ABR Revolving Loans, as provided in paragraph (a) of this Section, and (B) if such amount is payable in any other currency,
2.00% per annum plus the Alternative Currency Overnight Rate plus the Applicable Rate applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each Interest
Payment Date for such Loan and, in the case of a Revolving Loan or a Swingline Loan, upon termination of the Revolving Commitments; provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion or continuation of any LIBOR Loan or CDOR Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion or continuation. All interest shall be payable in the currency in which the applicable Loan is denominated.
(f) All interest hereunder shall be computed on the basis of a year of 360
days, except that (i) interest on Borrowings denominated in Sterling or Canadian Dollars and (ii) interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or, in the case of clause (ii) above, 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate, Adjusted LIBO Rate or CDO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
(g) For purposes of the Interest Act (Canada), (i) whenever any interest or fee
under this Agreement is calculated on the basis of a period other than a calendar year, such rate used in such calculation, when expressed as an annual rate, is equivalent to (A) such rate, multiplied by (B) the actual number of
days in the calendar year in which the period for which such interest or fee is calculated ends, and divided by (C) the number of days in such period of time, (ii) the principle of deemed reinvestment of interest shall not
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apply to any interest calculation under this Agreement, and (iii) the rates of interest stipulated in this Agreement are intended to be nominal rates and not effective
rates or yields.
SECTION 2.11. Alternate Rate of Interest. (a) If prior to the
commencement of any Interest Period for a LIBOR Borrowing or a CDOR Borrowing of any Class:
(i) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the CDO Rate, as the case may be, for such Interest Period; or
(ii) the Administrative Agent is advised by a Majority in
Interest of the Lenders of such Class that the Adjusted LIBO Rate or the CDO Rate, as the case may be, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans
included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the Lenders of such Class as promptly as practicable, specifying in reasonable detail the basis
for such notice, and, until the Administrative Agent notifies the Company and the Lenders of such Class that the circumstances giving rise to such notice no longer exist, (A) in the case of Term Borrowings and Revolving Borrowings
denominated in US Dollars, any Interest Election Request that requests the conversion of any such Borrowing of such Class to, or continuation of any such Borrowing of such Class as, an affected LIBOR Borrowing shall be ineffective,
and such Borrowing shall be continued as an ABR Borrowing, (B) any affected LIBOR Revolving Borrowing (if denominated in an Alternative Currency) or CDOR Revolving Borrowing shall be repaid on the last day of the then current Interest
Period applicable thereto and (C) any Borrowing Request for an affected LIBOR Revolving Borrowing or CDOR Revolving Borrowing shall (x) in the case of a Revolving Borrowing denominated in US Dollars, be deemed to be a request for an
ABR Borrowing, or (y) in all other cases, be ineffective (and no Revolving Lender shall be obligated to make a Revolving Loan on account thereof).
(b) If at any time the Administrative Agent determines or is advised by the
Required Lenders that they shall have determined that (i) the circumstances set forth in paragraph (a)(i) of this Section have arisen (including because the applicable Screen Rate is not available or published on a current basis)
and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in paragraph (a)(i) of this Section have not arisen but either (w) the supervisor for the administrator of the applicable Screen Rate has made a
public statement that the administrator of the applicable Screen Rate is insolvent (and there is no successor administrator that will continue publication of the applicable Screen Rate), (x) the administrator of the applicable
Screen Rate has made a public statement identifying a specific date after which the applicable Screen Rate will permanently or indefinitely cease to be published by it (and there is no successor administrator that will continue
publication of the applicable Screen Rate), (y) the
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supervisor for the administrator of the applicable Screen Rate has made a public statement identifying a specific date after which the
applicable Screen Rate will permanently or indefinitely cease to be published or (z) the supervisor or the administrator of the applicable Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has
made a public statement identifying a specific date after which the applicable Screen Rate may no longer be used for determining interest rates for loans denominated in the applicable currency, then the Administrative Agent and the
Company shall endeavor to establish an alternate rate of interest to the applicable Screen Rate for such currency that gives due consideration to the then prevailing market convention in the United States for determining a rate of
interest for syndicated loans denominated in the applicable currency at such time, and the Administrative Agent and the Company shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such
other related changes to this Agreement as may be applicable (it being understood that such amendment shall not reduce the Applicable Rate); provided
that if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement. Such amendment shall become effective without any further action or consent of any other party
to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating that the
Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this paragraph (but, in the case of the circumstances described in clause (ii) above, only to the extent the
applicable Screen Rate for such Interest Period is not available or published at such time on a current basis), clauses (A), (B) and (C) of paragraph (a) of this Section shall be applicable.
SECTION 2.12. Increased Costs; Illegality. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any
Issuing Bank;
(ii) impose on any Lender or any Issuing Bank or any Relevant Interbank Market any other
condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described
in clauses (b) through (d) of the definition of the term “Excluded Taxes” and (C) Connection Income Taxes) on its loans, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital
attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or other Recipient of making, converting to, continuing or
maintaining any Loan (or of maintaining
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its obligation to make any Loan), to increase the cost to such Lender, Issuing Bank or other Recipient of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder
(whether of principal, interest or any other amount) then, from time to time following request of such Lender, Issuing Bank or other Recipient (accompanied by a certificate in accordance with paragraph (e) of this Section), the
Company will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient for such additional costs or expenses incurred
or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law affecting such Lender or Issuing Bank or
any lending office of such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, if any, regarding capital or liquidity requirements has had or would have the effect of reducing the rate of return on
such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit or Swingline Loans held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or Issuing Bank or such Lender’s or such Issuing Bank’s
holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to
capital adequacy and liquidity), then, from time to time following the request of such Lender or Issuing Bank (accompanied by a certificate in accordance with paragraph (e) of this Section), the Company will pay to such Lender or
Issuing Bank such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c) If the cost to any Lender of making, converting to, continuing or maintaining any Revolving Loan or Swingline
Loan to (or of maintaining its obligation to make any such Loan) or the cost to any Lender or any Issuing Bank of participating in, issuing or maintaining any Letter of Credit or Swingline Loan issued for the account of or made to
any Foreign Borrowing Subsidiary (or of maintaining its obligation to participate in or issue any such Letter of Credit or Swingline Loan) is increased (or the amount of any sum received or receivable by any Lender or any Issuing
Bank (or its applicable lending office) is reduced) by reason of the fact that such Foreign Borrowing Subsidiary is incorporated in, has its principal place of business in, or borrows from a jurisdiction outside the United States
of America, then, from time to time following request of such Lender or Issuing Bank (accompanied by a certificate in accordance with paragraph (e) of this Section), the Company will pay to such Lender or Issuing Bank, as the case
may be, such additional amount or amounts as will compensate such Revolving Lender or Issuing Bank or other Recipient for such additional costs incurred or reduction suffered.
(d) Without duplication of any reserve requirement reflected in the Adjusted LIBO Rate, the Company will pay to each
Revolving Lender (i) as long as such
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Revolving Lender shall be required by a central banking or financial regulatory authority with regulatory authority over such Revolving Lender to maintain reserves with respect to liabilities or
assets consisting of or including funds or deposits obtained in any Relevant Interbank Market, additional interest on the unpaid principal amount of each LIBOR Revolving Loan or CDOR Revolving Loan equal to the actual costs of such
reserves allocable to such Loan by such Revolving Lender (as determined by such Revolving Lender in good faith, which determination shall be conclusive absent manifest error), and (ii) as long as such Revolving Lender shall be required to comply with any reserve ratio requirement or analogous requirement
of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the LIBOR Revolving Loans or CDOR Revolving Loans, such additional costs (expressed as a
percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Revolving Commitment or Revolving Loan by such Revolving Lender (as determined by such
Revolving Lender in good faith, which determination shall be conclusive absent manifest error), which in each case shall be due and payable on each date on which interest is payable on such Revolving Loan; provided that the Company shall have received the certificate referred to in paragraph (e) of this Section with respect to such additional interest or costs from
such Revolving Lender at least 10 days prior to such date (and, in the event such certificate shall have been delivered after such time, then such additional interest or costs shall be due and payable as set forth in paragraph (e)
of this Section).
(e) A certificate of a Lender, Issuing Bank, or other Recipient setting forth the basis for and, in reasonable
detail (to the extent practicable), computation of the amount or amounts necessary to compensate such Lender, Issuing Bank, or other Recipient or its holding company, as the case may be, as specified in paragraph (a), (b), (c) or
(d) of this Section shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender, Issuing Bank or other Recipient, as the case may be, the amount shown as due on any such
certificate within 30 days after receipt thereof. Notwithstanding the foregoing provisions of this Section, no Lender or Issuing Bank shall demand compensation for any increased or other cost or reduction pursuant to the foregoing
provisions of this Section if it shall not at the time be the general policy or practice of such Lender or Issuing Bank to demand (to the extent it is entitled to do so) such compensation from similarly situated borrowers in
similar circumstances under comparable provisions of other credit agreements.
(f) Failure or delay on the part of any Lender, Issuing Bank or other Recipient to demand compensation pursuant to
this Section shall not constitute a waiver of such Lender’s, Issuing Bank’s or other Recipient’s right to demand such compensation; provided
that the Company shall not be required to compensate a Lender, Issuing Bank or other Recipient pursuant to this Section for any increased costs or expenses incurred or reductions suffered more than 180 days prior to the date that
such Lender, Issuing Bank or other Recipient, as the case may be, notifies the Company of the Change in Law or other circumstance giving rise to such increased costs or expenses or reductions and of such Lender’s, Issuing Bank’s
or other Recipient’s intention to claim compensation therefor; provided further that if the Change in Law or other circumstance giving rise to
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such increased costs, expenses or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period
of retroactive effect thereof.
(g) If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for such Lender or the applicable lending office of such Lender to make, maintain or fund any LIBOR Loan or CDOR Loan or to charge interest with respect to any Loan, or to determine or charge interest
rates, based upon the LIBO Rate or CDO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, the applicable currency in the Relevant
Interbank Market, then, upon notice thereof by such Lender to the Company and the Administrative Agent, (i) any obligation of such Lender to make, maintain or fund any LIBOR Loan (if applicable, in such currency) or CDOR Loan, or
to continue any LIBOR Loan (if applicable, in such currency) or CDOR Loan or convert any ABR Loan into a LIBOR Loan, or to charge interest with respect to any Loan, or to determine or charge interest rates, based upon the LIBO
Rate or CDO Rate, as the case may be, shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the Adjusted LIBO
Rate component of the Alternate Base Rate, the interest rate on ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component
of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the applicable
Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay LIBOR Loans or CDOR Loans, as the case may be, of such Lender or, if applicable, convert all LIBOR Loans of such Lender to ABR Loans
(the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Alternate Base Rate), either
on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBOR Loans or CDOR Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBOR Loans or
CDOR Loans and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate
Base Rate applicable to such Lender without reference to the Adjusted LIBO Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or
charge interest rates based upon the LIBO Rate. Upon any such prepayment or conversion, the Company shall also pay accrued interest on the amount so prepaid or converted.
(h) If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for such Lender or the applicable lending office of such Lender to perform any of its obligations hereunder or under any Loan Document with respect to any Foreign Borrowing Subsidiary, to make,
maintain or fund any Loan to any Foreign Borrowing Subsidiary or to charge interest with respect to any Loan to any Foreign Borrowing Subsidiary, or to
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determine or charge interest rates with respect to any credit extension to any Foreign Borrowing Subsidiary, then, upon notice thereof by
such Lender to the Company and the Administrative Agent, any obligation of such Lender to make, maintain or fund any such Loan (if applicable, in an affected currency), or to continue any such Loan (if applicable, in an affected
currency) or convert any ABR Loan into a LIBOR Loan, or to charge interest with respect to any Loan, or to determine or charge interest rates with respect to any credit extensions, as the case may be, in each case with respect to
such Foreign Borrowing Subsidiary, shall be suspended (and to the extent required by applicable Law, cancelled). Upon receipt of such notice, the applicable Foreign Borrowing Subsidiary shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay any such Loans of such Lender to such Foreign Borrowing Subsidiary or, if applicable, convert all such LIBOR Loans of such Lender to such Foreign Borrowing Subsidiary to ABR Loans (the
interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted LIBO Rate component of the Alternate Base Rate), either on the
last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such prepayment or
conversion, the Company shall also pay accrued interest on the amount so prepaid or converted. The applicable Borrower shall also take all reasonable actions requested by the Administrative Agent or such Lender to mitigate or avoid
such illegality.
SECTION 2.13. Break Funding Payments. In the event of (a) the
payment of any principal of any LIBOR Loan or CDOR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR Loan or CDOR Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert or continue any LIBOR Loan or CDOR Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice may be
revoked in accordance with the terms hereof), (d) the failure to prepay any LIBOR Loan or CDOR Loan on a date specified therefor in any notice of prepayment given by the Company (whether or not such notice may be revoked in
accordance with the terms hereof) or (e) the assignment of any LIBOR Loan or CDOR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 2.16, then, in
any such event, the Company shall compensate each Lender for the loss, cost and expense (but not lost profits) attributable to such event (including, to the extent that any of foregoing Loans are denominated in any Alternative
Currency, the loss, cost and expense (but not lost profits) of such Lender attributable to the premature unwinding of any hedging agreement entered into by such Lender in respect to the foreign currency exposure attributable to such
Loan), within 30 days following request of such Lender (accompanied by a certificate described below in this Section). Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate or CDO Rate that would have been applicable to such Loan (but not
including the Applicable Rate applicable thereto), for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the
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case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the
amount of interest that would accrue on such principal amount for such period at the interest rate such Lender would bid if it were to bid, at the commencement of such period, for deposits in the applicable currency of a comparable
amount and period from other banks in the Relevant Interbank Market. A certificate of any Lender delivered to the Company and setting forth the basis for and, in reasonable detail (to the extent practicable), computation of any
amount or amounts that such Lender is entitled to receive pursuant to this Section shall, subject to the proviso in the next following sentence, be conclusive absent manifest error. The Company shall pay such Lender the amount shown
as due on any such certificate within 30 days after receipt thereof.
SECTION 2.14. Taxes. (a) Payments Free of Taxes. All payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as
required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then
the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such
Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to
additional sums payable under this Section 2.14) the applicable Lender (or, in the case of any amount received by the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would
have received had no such deduction or withholding been made.
(b) Payment of Other Taxes by the Loan Parties. Subject to and in accordance with
Section 2.22(d), 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 the Administrative Agent for the payment of,
any Other Taxes.
(c) Evidence of Payment.
As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.14, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d) Indemnification by the Loan
Parties. Subject to and in accordance with Section 2.22(d), the Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified
Taxes imposed or asserted on or attributable to amounts payable under this Section 2.14) payable or paid 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 imposed or asserted by
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the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender (with
a copy to the Administrative Agent) or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) [Reserved].
(f) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably
requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding
or at a reduced rate of withholding.In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the
Company or the Administrative Agent as will enable the Company and the Administrative Agent to determine whether or not such Lender is subject to backup withholding or 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 Section 2.14(f)(ii)(A), (ii)(B) and (ii)(D) below) 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 commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in respect of any Loan to the Company or any Domestic
Borrowing Subsidiary:
(A) any Lender that is a US Person shall deliver to the Company and the Administrative Agent on
or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of IRS Form W-9
certifying that such Lender is exempt from US federal backup withholding Tax;
(B) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the
Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the
United States is a party two executed originals of IRS Form W-8BEN or IRS Form
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W-8BEN-E, as applicable, establishing an exemption from, or reduction of, withholding Taxes pursuant to such tax treaty;
(2) two executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) two executed originals of a certificate substantially in the form of Exhibit H-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 applicable Loan Party within the meaning of Section 881(c)(3)(B) of the Code or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that interest
payments on the Loans are not effectively connected with the Lender’s conduct of a US trade or business (a “US Tax Compliance Certificate”)
and (y) two executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or
(4) to the extent a Foreign Lender is not the beneficial owner, two executed originals of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a US Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form 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 US Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect
partner;
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the
Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Company or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in US federal withholding Taxes, duly
completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) If a payment made to a Lender under any Loan Document would be subject to withholding Taxes
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
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Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times
prescribed by law and at such time or times reasonably requested by the Company 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 Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine whether such
Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the
date of this Agreement.
(iii) 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 Company and the Administrative Agent in writing of its legal ineligibility to do so.
(iv) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and
to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 2.14(f).
(g) 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 2.14 (including by the payment of additional amounts
pursuant to this Section 2.14), 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 2.14 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 (g) (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 (g), in no event will the indemnified party be
required to pay any amount to an indemnifying party pursuant to this paragraph (g) 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 (g) 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.
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(h) VAT. (i) All
amounts set out or expressed in any Loan Document to be payable by any party to any Loan Document (for the purposes of this paragraph (h), a “party”)
to any Recipient that (in whole or in part) constitute the consideration for any supply for VAT purposes shall be deemed to be exclusive of any VAT that is chargeable on such supply. Subject to clause (ii) below, if VAT is or
becomes chargeable on any supply made by any Recipient to any party under any Loan Document and such Recipient is required to account to the relevant tax authority for such VAT, such party shall pay to such Recipient (in addition
to and at the same time as paying any other consideration for such supply), an amount equal to the amount of such VAT (and such Recipient shall promptly provide an appropriate VAT invoice to such party).
(ii) If VAT is or becomes chargeable on any supply made by any Recipient (the “VAT Supplier”) to any other Recipient (the “VAT Recipient”)
under any Loan Document, and any party other than the VAT Recipient (the “VAT Subject Party”) is required by the terms of any Loan Document
to pay an amount equal to the consideration for such supply to the VAT Supplier (rather than being required to reimburse or indemnify the VAT Recipient in respect of such consideration):
(A) to the extent the VAT Supplier is the Person required to account to the relevant tax
authority for the VAT, the VAT Subject Party shall also pay to the VAT Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT, and the VAT Recipient shall, where this clause
(A) applies, promptly pay to the VAT Subject Party an amount equal to any credit or repayment the VAT Recipient receives from the relevant tax authority which the VAT Recipient reasonably determines relates to the VAT chargeable
on such supply; and
(B) to the extent the VAT Recipient is the Person required to account to the relevant tax
authority for the VAT, the VAT Subject Party shall promptly, following demand from the VAT Recipient, pay to the VAT Recipient an amount equal to the VAT chargeable on such supply but only to the extent that the VAT Recipient
reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of such VAT.
(iii) Where a Loan Document requires any party to reimburse or indemnify any Recipient for any
cost or expense, such party shall reimburse or indemnify (as the case may be) such Recipient for the full amount of such cost or expense, including such part thereof as represents VAT, except to the extent that such Recipient
reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
(iv) Any reference in this paragraph (h) to any party shall, at any time when such party is
treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the Person that is treated at that time as making the supply,
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or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive
2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction that is not a member state of the European Union) so that a reference to a party shall be
construed as a reference to such party or the relevant group or unity (or fiscal unity) of which such party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of such group or unity (or
fiscal unity) at the relevant time (as the case may be).
(v) In relation to any supply made by a Recipient to any party under any Loan Document, if reasonably requested by
such Recipient, such party must promptly provide such Recipient with details of such party’s VAT registration and such other information as is reasonably requested in connection with such Recipient’s VAT reporting requirements in
relation to such supply.
(i) For purposes of this Section 2.14, the term “Lender” includes any Issuing Bank and the term “applicable law”
includes FATCA.
SECTION 2.15. Payments
Generally; Pro Rata Treatment; Sharing of Setoffs. (a) Each Borrower shall make each payment required to be made by it hereunder
or under any other Loan Document prior to the time required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 1:00 p.m., Local Time), on the date when due, in
immediately available funds, without any defense, setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to such account as may be specified by the Administrative Agent, except payments to be made directly
to any Issuing Bank or the Swingline Lender shall be so made and except that payments pursuant to Sections 2.12, 2.13, 2.14, 10.03 and 10.18 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan
Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments hereunder of principal or interest in respect of any Loan or LC Disbursement shall, except as otherwise expressly provided herein, be made in the currency of
such Loan or LC Disbursement; all other payments hereunder and under each other Loan Document shall be made in US Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by
the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by
the Administrative Agent to make such payment.
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(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans or participations in LC
Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall notify the Administrative Agent of such fact and shall
purchase (for cash at face value) participations in the Loans and participations in LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the amount of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amounts of principal of and accrued interest on their Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrowers pursuant to and in accordance with the express terms of this
Agreement (for the avoidance of doubt, as in effect from time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements
or Swingline Loans to any Person that is an Eligible Assignee (as such term is defined herein from time to time). Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law,
that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct
creditor of the Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or Issuing Banks, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each
of the applicable Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the date of payment to the
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Administrative Agent at (i) if such amount is denominated in US Dollars, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) if such amount is denominated in any other currency, the greater of the applicable Alternative Currency Overnight
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it hereunder to or for the account of
the Administrative Agent, any Issuing Bank or the Swingline Lender, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations in respect of such payment until all such unsatisfied obligations have been discharged or (ii) hold any such amounts in a segregated account
as cash collateral for, and application to, any future funding obligations of such Lender pursuant to Section 2.04(b), 2.14(e), 2.15(d), 2.20(d), 2.20(f), 2.21(c) or 10.03(c), in each case in such order as shall be determined by
the Administrative Agent in its discretion.
(f) In the event that any financial statements delivered under Section 5.01(a) or 5.01(b), or any Compliance
Certificate delivered under Section 5.01(c), shall prove to have been inaccurate, and such inaccuracy shall have resulted in the payment of any interest or fees at rates lower than those that were in fact applicable for any period
(based on the actual Leverage Ratio), then, if such inaccuracy is discovered prior to the termination of the Commitments and the repayment in full of the principal of all Loans and the reduction of the LC Exposure to zero, the
Borrowers shall pay to the Administrative Agent, for distribution to the Lenders (or former Lenders) as their interests may appear, the accrued interest or fees that should have been paid but were not paid as a result of such
misstatement.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.12, or if any Loan Party is
required to pay any Indemnified Taxes or additional amounts to any Lender or to any Governmental Authority for the account of any Lender pursuant to Section 2.14 (other than additional amounts arising from VAT that are recoverable
from any Governmental Authority), then such Lender shall (at the request of the Company) use commercially reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign and
delegate its rights and obligations hereunder to another of its offices, branches or Affiliates if, in the judgment of such Lender, such designation or assignment and delegation (i) would eliminate or reduce amounts payable pursuant
to Section 2.12 or 2.14, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment and delegation within 30 days following the written request of such Lender (accompanied by reasonable back-up documentation
relating thereto).
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(b) If (i) any
Lender requests compensation under Section 2.12, is unable to make LIBOR Loans or CDOR Loans pursuant to Section 2.12(g) or is unable to make Loans pursuant to Section 2.12(h), (ii) any Loan Party is required to pay any
Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.14 (other than additional amounts arising from VAT that are recoverable from any Governmental
Authority), (iii) any Lender has become a Defaulting Lender or (iv) any Lender has failed to consent to a proposed amendment, waiver, discharge or termination that under Section 10.02 requires the consent of all the Lenders (or all
the affected Lenders or all the Lenders of the affected Class) and with respect to which the Required Lenders (or, in circumstances where Section 10.02 does not require the consent of the Required Lenders, a Majority in Interest of
the Lenders of the affected Class) shall have granted their consent, then the Company may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in Section 10.04), all its interests, rights (other than its existing rights to payments pursuant to Section 2.12 or 2.14) and obligations under this Agreement
and the other Loan Documents (or, in the case of any such assignment and delegation resulting from a failure to provide a consent, all its interests, rights and obligations under this Agreement and the other Loan Documents as a
Lender of a particular Class) to an Eligible Assignee that shall assume such obligations (which may be another Lender, if a Lender accepts such assignment and delegation); provided that (A) the Company shall have received the prior written consent of the Administrative Agent and, in circumstances where its consent would be required under Section 10.04, each Issuing
Bank and the Swingline Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and, if applicable,
participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (if applicable, in each case only to the extent such amounts relate to its interest as a
Lender of a particular Class) from the assignee (in the case of such principal and accrued interest and fees) or the Company (in the case of all other amounts), (C) in the case of any such assignment and delegation resulting from a
claim for compensation under Section 2.12 or payments required to be made pursuant to Section 2.14, such assignment will result in a reduction in such compensation or payments, (D) such assignment does not conflict with applicable law and (E) in the case of any such assignment and delegation resulting
from the failure to provide a consent, the assignee shall have given such consent and, as a result of such assignment and delegation and any contemporaneous assignments and delegations and consents, the applicable amendment,
waiver, discharge or termination can be effected. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver or consent by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation have ceased to apply. Each party hereto agrees that an assignment and delegation required pursuant to this paragraph may be effected pursuant to an Assignment and
Assumption executed by the Company, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto.
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SECTION 2.17. 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) the Revolving Commitment Fees and the Delayed Draw Term Ticking Fees shall cease to accrue on the unused
amount of the Revolving Commitment or on the Delayed Draw Term Commitment, as the case may be, of such Defaulting Lender;
(b) the Revolving Commitment, the Revolving Exposure, the Term Commitment and the Term Loans of such Defaulting
Lender shall not be included in determining whether the Required Lenders or any other requisite Lenders have taken or may take any action hereunder or under any other Loan Document (including any consent to any amendment, waiver
or other modification pursuant to Section 10.02); provided that any amendment, waiver or other modification requiring the consent of all
Lenders or all Lenders affected thereby shall, except as otherwise provided in Section 10.02, require the consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any Swingline Exposure or LC Exposure exists at the time any Revolving Lender becomes a Defaulting
Lender, then:
(i) the Swingline Exposure (other than any portion thereof with respect to which such
Defaulting Lender shall have funded its participation as contemplated by Section 2.21(c)) and LC Exposure of such Defaulting Lender (other than any portion thereof attributable to unreimbursed LC Disbursements with respect to
which such Defaulting Lender shall have funded its participation as contemplated by Sections 2.20(d) and 2.20(f)) shall be reallocated among the Non-Defaulting Revolving Lenders in accordance with their respective Applicable
Percentages but only to the extent that the sum of all Non-Defaulting Revolving Lenders’ Revolving Exposures plus such Defaulting Lender’s
Swingline Exposure (excluding the portion thereof referred to above) and LC Exposure (excluding the portion thereof referred to above) does not exceed the sum of all Non-Defaulting Revolving Lenders’ Revolving Commitments;
(ii) if the reallocation described in clause (i) above cannot, or can only partially, be
effected, each Borrower shall within one Business Day following written notice by the Administrative Agent (A) first, prepay the portion of such Defaulting Lender’s Swingline Exposure attributable to Swingline Loans made to such
Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated and (B) second, cash collateralize for the benefit of the Issuing Banks the portion of such Defaulting
Lender’s LC Exposure attributable to Letters of Credit issued for the account of such Borrower (other than any portion thereof referred to in the parenthetical in such clause (i)) that has not been reallocated as set forth in such
clause in accordance with the procedures set forth in Section 2.20(n) for so long as such LC Exposure is outstanding;
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(iii) if the Borrowers cash collateralize any portion of such Defaulting Lender’s LC Exposure
pursuant to clause (ii) above, the Borrowers shall not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.09(c) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as
such Defaulting Lender’s LC Exposure is cash collateralized;
(iv) if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to Sections 2.09(a) and 2.09(c) shall be adjusted to give effect to such reallocation; and
(v) if all or any portion of such Defaulting Lender’s LC Exposure that is subject to
reallocation pursuant to clause (i) above is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder,
all participation fees payable under Section 2.09(c) with respect to such portion of its LC Exposure shall be payable to the Issuing Banks (and allocated among them ratably based on the amount of such portion of the LC Exposure of
such Defaulting Lender attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any
Swingline Loan and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit, unless, in each case, it is satisfied that the related exposure and such Defaulting Lender’s then outstanding Swingline
Exposure or LC Exposure will be fully covered by the Revolving Commitments of the Non-Defaulting Revolving Lenders and/or cash collateral provided by the Borrowers in accordance with clause (c) above, and participating interests
in any such funded Swingline Loan or in any such issued, amended, renewed or extended Letter of Credit will be allocated among the Non-Defaulting Revolving Lenders in a manner consistent with clause (c)(i) above (and such
Defaulting Lender shall not participate therein).
In the event that (x) a Bankruptcy Event with respect to a Lender Parent of a Revolving Lender shall have occurred following the Effective
Date and for so long as such Bankruptcy Event shall continue or (y) the Swingline Lender or any Issuing Bank has a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Revolving Lender commits to extend credit, the Swingline Lender shall not be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, amend, renew or extend any Letter of Credit,
unless, in each case, the Swingline Lender or such Issuing Bank shall have entered into arrangements with the Company and any other applicable Borrower or such Revolving Lender satisfactory to the Swingline Lender or such Issuing
Bank, as the case may be, to defease any risk to it in respect of such Revolving Lender hereunder.
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In the event that the Administrative Agent, the Company, the Swingline Lender and each Issuing Bank each agree that a Defaulting Lender
that is a Revolving Lender has adequately remedied all matters that caused such Revolving Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the
inclusion of such Revolving Lender’s Revolving Commitment and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the other Revolving Lenders as the Administrative Agent shall determine to be
necessary in order for such Revolving Lender to hold such Revolving Loans in accordance with its Applicable Percentage, and such Revolving Lender shall thereupon cease to be a Defaulting Lender (but shall not be entitled to receive
any Revolving Commitment Fees accrued during the period when it was a Defaulting Lender, and all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section
during such period shall be binding on it).
In the event that the Administrative Agent and the Company each agree that a Defaulting Lender that is a Term Lender has adequately
remedied all matters that caused such Term Lender to be a Defaulting Lender, then on such date such Term Lender shall take such actions as the Administrative Agent may determine to be appropriate in connection with such Term Lender
ceasing to be a Defaulting Lender, and such Term Lender shall thereupon cease to be a Defaulting Lender (but (x) in the case of a Delayed Draw Term Lender, shall not be entitled to receive any Delayed Draw Term Ticking Fees accrued
during the period when it was a Defaulting Lender, and (y) all amendments, waivers or modifications effected without its consent in accordance with the provisions of Section 10.02 and this Section during such period shall be binding
on it).
The rights and remedies against, and with respect to, a Defaulting Lender under this Section are in addition to, and cumulative and not in
limitation of, all other rights and remedies that the Administrative Agent, any Issuing Bank, the Swingline Lender, any other Lender or any Loan Party may at any time have against, or with respect to, such Defaulting Lender.
SECTION 2.18. Incremental Facilities. (a) The Company may on one or more
occasions, by written notice to the Administrative Agent, request (i) the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that (A) the aggregate amount of all the Incremental Commitments established hereunder shall not exceed US$600,000,000 and (B) no Incremental Commitments may be established
until after the earlier of (x) the Delayed Draw Term Funding Date and (y) the Delayed Draw Term Commitment Termination Date. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Revolving
Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on
which such notice is delivered to the Administrative Agent and (2) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached
to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or
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decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Commitment and (y) any Person that
the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental
Revolving Lender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Banks or the Swingline
Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and
conditions of any Incremental Revolving Commitment and the Loans and other extensions of credit to be made thereunder shall be
identical to those of the Revolving Commitments and the Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The terms and
conditions of any Incremental Term Loans shall be such as the Company and the applicable Incremental Term Lenders shall agree upon; provided
that (i) the Incremental Term Loans shall be extensions of credit to the Company that are guaranteed only by the Subsidiary Guarantors, (ii) the Incremental Term Loans shall rank pari passu in right of payment with the other Loans
and the other Loan Document Obligations and shall not be secured by any Liens on any assets of the Company or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured pursuant to security documentation
reasonably satisfactory to the Administrative Agent, (iii) the Incremental Facility Agreement with respect thereto shall not contain any affirmative, negative or financial covenant applicable to the Company or the Subsidiaries or
any event of default that benefits the Incremental Term Lenders (but not the other Lenders), in each case, except if this Agreement is amended to include such affirmative, negative or financial covenant or event of default for the
benefit of all Lenders and (iv) if any Class of Term Loans shall be outstanding immediately after giving effect to the incurrence of such Incremental Term Loans and the application of the proceeds thereof, (A) the Incremental Term
Maturity Date with respect to such Incremental Term Loans shall be no earlier than the latest Maturity Date of any such Class of Term Loans, (B) the weighted average life to maturity of such Incremental Term Loans shall be no
shorter than the longest remaining weighted average life to maturity of any such Class of Term Loans and (C) such Incremental Term Loans shall not be subject to any mandatory prepayment provisions. Any Incremental Term Commitments
established pursuant to a single Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate “Class” of Commitments or Loans for all
purposes of this Agreement; provided that any Incremental Term Loans that have identical terms as any other Class of “term” Loans then
outstanding (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes) may, at the election of the Company, be treated as a
single Class with such outstanding “term” Loans.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by
the Company, each
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Incremental Lender providing such Incremental Commitments and the Administrative Agent (with the Administrative Agent hereby agreeing that
its consent thereto shall not be unreasonably withheld, conditioned or delayed); provided that no Incremental Commitments shall become
effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the
making of any Loans thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in (A) in the case
of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date of effectiveness, except in the case of any such representation or
warranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct on and as of such prior date, and (iii) the Company shall have delivered to the Administrative Agent such
customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall have been reasonably be requested by the Administrative Agent in connection with any such transaction. Each
Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent and the
Company, to give effect to the provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Term Commitments and the Incremental Term Loans as a new Class of Commitments and Loans hereunder
(including for purposes of voting).
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender
shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect
of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans
of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental
Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment,
in each case, subject to further increase or reduction from time to time as provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Applicable Percentages of all the
Revolving Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of
the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Revolving
Commitments shall be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness
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of such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds and in the applicable currency an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the
effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated
without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving Lender that shall not have had
a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds and in the applicable currency an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount
of each Resulting Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is
equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each
Existing Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each
corresponding Resulting Revolving Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the applicable Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the Existing Revolving Borrowings and of the Types and for the Interest
Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall, on behalf of all applicable Borrowers, deliver such Borrowing Request), (vi) each Revolving
Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Borrowers
shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i)
above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period
relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement,
each Lender holding an Incremental Term Commitment of any Class shall make a Loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any
notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of any Incremental Commitments, in
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each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the
Applicable Percentages of the Revolving Lenders after giving effect thereto.
SECTION 2.19. Bridge Facility. (a) The Company may, by written
notice to the Administrative Agent, request the establishment of Bridge Commitments, provided that the aggregate amount of the Bridge
Commitments established hereunder shall not exceed the Bridge Facility Amount. Each such notice shall specify (i) the date on which the Company proposes that the Bridge Commitments shall become effective and (ii) the amount of the
Bridge Commitments being established (it being agreed that (A) except to the extent such Lender shall have separately agreed in writing to provide any Bridge Commitment, any Lender approached to provide any Bridge Commitment may
elect or decline, in its sole discretion, to provide such Bridge Commitment and (B) any Person that the Company proposes to become a Bridge Lender, if such Person is not then a Lender, must be an Eligible Assignee).
(b) The terms and conditions of the Bridge Commitments and the Bridge Loans to be made thereunder shall be as
set forth in the Bridge Facility Agreement, provided that (i) the Bridge Loans shall be extensions of credit to the Company that are
guaranteed only by the Subsidiary Guarantors, (ii) the Bridge Loans shall rank pari passu in right of payment with the other Loans and other Loan Document Obligations and shall not be secured by any Liens on any assets of the
Company or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured pursuant to security documentation reasonably satisfactory to the Administrative Agent, and (iii) the Bridge Facility Agreement
shall not contain any affirmative, negative or financial covenant applicable to the Company or the Subsidiaries or any event of default that benefits the Bridge Lenders (but not the other Lenders), in each case, except if this
Agreement is amended to include such affirmative, negative or financial covenant or event of default for the benefit of all Lenders (it being understood that nothing in this clause (iii) shall limit the scheduled maturity date,
interest rate, benchmark rate floors, fees, original issue discounts, commitment termination requirements (including mandatory reductions) and prepayment requirement (including mandatory prepayments) applicable to the Bridge
Commitments or the Bridge Loans).
(c) The Bridge Commitments shall be effected pursuant to a Bridge Facility Agreement executed and delivered by
the Company, each Bridge Lender providing such Bridge Commitments and the Bridge Facility Agent, subject to the satisfaction of such conditions precedent thereto as may be set forth in the Bridge Facility Agreement. The Bridge
Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Bridge Facility Agent and the Company, to
give effect to the provisions of this Section, including any amendments necessary or appropriate to treat the Bridge Commitments and the Bridge Loans as a new Class of Commitments and Loans hereunder (including for purposes of
voting) or to provide to the Bridge Facility Agent such rights (including indemnity and exculpation provisions) and obligations as are appropriate for its role and comparable to those of the Administrative
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Agent in respect of the Delayed Draw Term Facility. Goldman Sachs, in its capacity as the Bridge Facility Agent, is an express third party
beneficiary of the provisions of this Section.
(d) Upon the effectiveness of the Bridge Commitment of any Bridge Lender, such Bridge Lender shall be deemed to
be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and
Loans of the applicable Class) hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable
Class) hereunder and under the other Loan Documents.
(e) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any
notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of the Bridge Commitments, in each case advising the Lenders of the details thereof.
SECTION 2.20. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, any Borrower may request any Issuing Bank to issue Letters of Credit (or to amend, renew or extend outstanding Letters of Credit) denominated in any LC Currency, for its own account or, so
long as the Company is a joint and several co-applicant with respect thereto, for the account of any Subsidiary, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period (but in any event not after the latest expiration date specified in Section 2.20(c)). In the event of any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other agreement submitted by any Borrower to, or entered into by any Borrower with, any Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. The Company unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the account of any Subsidiary as provided in the first sentence of this paragraph, the Company
will be fully responsible for the reimbursement of LC Disbursements, the payment of interest thereon and the payment of fees due under Section 2.09(c) to the same extent as if it were the sole account party in respect of such Letter
of Credit (the Company hereby irrevocably waiving, to the extent permitted by applicable law, any defenses that might otherwise be available to it as a guarantor of the obligations of any Subsidiary that shall be an account party in
respect of any such Letter of Credit). Each Existing Letter of Credit shall be deemed, for all purposes of this Agreement (including paragraphs (d) and (f) of this Section), to be a Letter of Credit issued hereunder on the Effective
Date for the account of the applicable Borrower. This Section shall not be construed to impose an obligation upon any Issuing Bank to issue any Letter of Credit if (i) any order, judgment or decree of any Governmental Authority
shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such
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Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or, in the case of any
Borrowing Subsidiary, shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital or liquidity requirement, or shall impose upon such Issuing Bank any unreimbursed loss, cost or
expense, in each case for which such Issuing Bank is not otherwise compensated hereunder, (ii) the issuance of such Letter of Credit would violate one or more policies of general applicability of such Issuing Bank or (iii) such
Letter of Credit is not in the currency approved for issuance by such Issuing Bank. The issuance of Letters of Credit by any Issuing Bank shall be subject to customary procedures of such Issuing Bank. No Issuing Bank shall be
required to issue (but if requested as set forth above, may issue) trade Letters of Credit or Letters of Credit in the form of bank guaranties. It is understood and agreed that the provisions of this Section (and any other provision
of this Agreement or any other Loan Document) in respect of Letters of Credit will apply to bank guaranties, mutatis mutandis, with the intention of having the same effect for both letters of credit and bank guaranties.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment, renewal or extension of an outstanding Letter of Credit (other than an automatic annual renewal of such
Letter of Credit in accordance with its terms), the applicable Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable
Issuing Bank and the Administrative Agent, reasonably in advance of the requested date of issuance, amendment, renewal or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the requested date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph
(c) of this Section), the amount of such Letter of Credit, the currency of such Letter of Credit (which shall be an LC Currency), the name and address of the beneficiary thereof and such other information as shall be necessary to
enable the applicable Issuing Bank to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the applicable Borrower also shall submit a letter of credit or bank guaranty application on
such Issuing Bank’s standard form in connection with any such request. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each issuance, amendment, renewal or extension of any Letter of Credit the
applicable Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure attributable to Letters of Credit issued by any Issuing Bank will not
exceed the LC Commitment of such Issuing Bank, (ii) the LC Exposure will not exceed US$500,000,000 and (iii) the Revolving Exposure of each Revolving Lender will not exceed its Revolving Commitment. Each Issuing Bank agrees that
it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (k) of this Section.
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(c) Expiration Date.
Each Letter of Credit shall by its terms expire at or prior to the close of business on the date that is 20 Business Days prior to the Revolving Maturity Date.
(d) Participations. By
the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the Issuing Bank that is
the issuer thereof hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the
account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the applicable Borrower on the date due as provided in paragraph (f) of this
Section, or of any reimbursement payment required to be refunded to the applicable Borrower for any reason. Such payment by the Revolving Lenders shall be made (i) if the currency of the applicable LC Disbursement or reimbursement
payment shall be US Dollars, in US Dollars and (ii) subject to paragraph (l) of this Section, if the currency of the applicable LC Disbursement or reimbursement payment shall be a currency other than US Dollars, in US Dollars in an
amount equal to the US Dollar Equivalent of such LC Disbursement or reimbursement payment, calculated by the Administrative Agent using the LC Exchange Rate on the applicable LC Participation Calculation Date. Each Revolving Lender
acknowledges and agrees that (i) its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
any amendment, renewal or extension of any Letter of Credit, any fluctuation in currency values, the occurrence and continuance of any Default, any reduction or termination of the Revolving Commitments or any force majeure or other event that under any rule of law or
uniform practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any successor publication of the International Chamber of Commerce) permits a drawing to be made under such Letter of Credit after the
expiration thereof or of the Revolving Commitments, and (ii) each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender further acknowledges and agrees that, in issuing,
amending, renewing or extending any Letter of Credit, the applicable Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrowers deemed made pursuant
to Section 4.03, unless, at least two Business Days prior to the time such Letter of Credit is issued, amended, renewed or extended (or, in the case of an automatic annual renewal of such Letter of Credit in accordance with its
terms, at least two Business Days prior to the time by which the election not to extend must be made by the applicable Issuing Bank), a Majority in Interest of the Revolving Lenders shall have notified the applicable Issuing Bank
(with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the conditions precedent set forth in Section 4.03(a) or 4.03(b) would not be
satisfied if such Letter of Credit were then issued, amended, renewed or extended (it
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being understood and agreed that, in the event any Issuing Bank shall have received any such notice, no Issuing Bank shall have any
obligation to issue, amend, renew or extend any Letter of Credit until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist).
(e) Disbursements. Each
Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit issued by it and shall promptly notify the Administrative Agent and the
applicable Borrower by telephone (confirmed by hand delivery or facsimile) of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve any Borrower of its obligation to reimburse such LC Disbursement.
(f) Reimbursement.If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount in the currency of such
LC Disbursement equal to such LC Disbursement not later than 12:00 p.m., Local Time, on the Business Day immediately following the day that such Borrower receives notice of such LC Disbursement; provided that, if such LC Disbursement is denominated in US Dollars and is not less than US$1,000,000, the applicable Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Borrowing or a Swingline Loan in an equivalent amount and, to the extent so financed, such Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the applicable Borrower fails to make any such reimbursement payment when due, (i) if such payment relates to a Letter of
Credit denominated in any currency other than US Dollars, automatically and with no further action required, the obligation of such Borrower to reimburse the applicable LC Disbursement shall be permanently converted into an
obligation to reimburse the US Dollar Equivalent, calculated using the LC Exchange Rate on the applicable LC Participation Calculation Date, of such LC Disbursement and (ii) in the case of each LC Disbursement, the Administrative
Agent shall notify each Revolving Lender of the applicable LC Disbursement, the amount of the payment then due from such Borrower in respect thereof and such Revolving Lender’s Applicable Percentage thereof, and each Revolving
Lender shall pay in US Dollars to the Administrative Agent on the date such notice is received its Applicable Percentage of the payment then due from such Borrower, in the same manner as provided in Section 2.04 with respect to
Revolving Loans made by such Lender (and Section 2.04 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received
by it from the Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from a Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
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Disbursement (other than the funding of an ABR Revolving Loan or a Swingline Loan as contemplated above) shall not constitute a Loan and
shall not relieve the applicable Borrower of its obligation to reimburse such LC Disbursement. If the applicable Borrower’s reimbursement of, or obligation to reimburse, any amounts in any currency other than US Dollars would
subject the Administrative Agent, the applicable Issuing Bank or any Revolving Lender to any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in US
Dollars, such Borrower shall pay the amount of any such tax requested by the Administrative Agent, such Issuing Bank or such Revolving Lender.
(g) Obligations Absolute.
Each Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is 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 other Loan Document, or any term or provision thereof or hereof, (ii) any draft
or other document presented under a 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 an Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) any force majeure or other event that under any rule of law or uniform practices to which any Letter of Credit is subject (including Section 3.14 of ISP 98
or any successor publication of the International Chamber of Commerce) permits a drawing to be made under such Letter of Credit after the stated expiration date thereof or of the Revolving Commitments 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 paragraph, constitute a legal or equitable discharge of, or provide a right of setoff against, the applicable
Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), 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
other act, failure to act or other event or circumstance; provided that the foregoing shall not be construed to excuse any Issuing Bank from
liability to the Borrowers to the extent of any direct damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrowers to the extent permitted by
applicable law) suffered by the Borrowers that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that unless a court of competent jurisdiction shall have determined in a final and nonappealable judgment that in making any such determination the applicable Issuing Bank acted with gross
negligence, bad faith or willful misconduct, such Issuing Bank shall be deemed to have exercised care in such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with
respect
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to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may,
in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation 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.
(h) Interim Interest.
If an Issuing Bank shall make any LC Disbursement, then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof (determined in accordance with
the definition thereof) shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the applicable Borrower reimburses such LC Disbursement, (i) in the case of any LC
Disbursement denominated in US Dollars, and at all times following the conversion to US Dollars of any LC Disbursement made in any other LC Currency pursuant to paragraph (f) or (l) of this Section, at the rate per annum then
applicable to ABR Revolving Loans and (ii) if such LC Disbursement is made
in an LC Currency other than US Dollars, at all times prior to its conversion to US Dollars pursuant to paragraph (f) or (l) of this Section, at a rate equal to the rate reasonably determined by the applicable Issuing Bank to be
the cost to such Issuing Bank of funding such LC Disbursement (which determination shall be conclusive absent manifest error, it being understood that such Issuing Bank may deem the applicable Alternative Currency Overnight Rate
to represent such cost of funding) plus the Applicable Rate applicable to LIBOR Revolving Loans at such time; provided that, if the applicable Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then Section 2.10(d) shall apply.
Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant
to paragraph (f) of this Section to reimburse such Issuing Bank shall be paid to the Administrative Agent for the account of such Revolving Lender to the extent of such payment, and shall be payable on demand or, if no demand has
been made, on the date on which the applicable Borrower reimburses the applicable LC Disbursement in full.
(i) Designation of
Additional Issuing Banks. The Company may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld, delayed or conditioned), designate as additional
Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement, which shall
be in form and substance reasonably satisfactory to the Administrative Agent, executed by the Company, the Administrative Agent and such designated Revolving Lender and, from and after the effective date of such agreement, (i) such
Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein and in the other Loan Documents to the term “Issuing Bank” shall be deemed to include such Revolving
Lender in its capacity as an issuer of Letters of Credit hereunder.
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(j) Termination of an Issuing
Bank. The Company may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such
termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its
Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrowers shall pay all unpaid fees accrued for the account of the terminated Issuing Bank pursuant to Section 2.09(c).
Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such termination, but shall not issue any additional Letters of Credit.
(k) Issuing Bank Reports to
the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section, (i) report in writing to the
Administrative Agent periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank, including all issuances, extensions,
amendments and renewals, all expirations and cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the currency and stated amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension
(and whether the amounts thereof shall have changed), (iii) on any Business Day on which any Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the
currency and amount of such LC Disbursement and (iv) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
(l) Conversion. In
the event that the Loans become immediately due and payable on any date pursuant to Section 7.01, all amounts (i) that the Borrowers are at the time or become thereafter required to reimburse or otherwise pay to the Administrative
Agent in respect of LC Disbursements made under any Letter of Credit denominated in an LC Currency other than US Dollars (other than amounts in respect of which any Borrower has deposited cash collateral, if such cash collateral
was deposited in the applicable currency), (ii) that the Revolving Lenders are at the time or become thereafter required to pay to the Administrative Agent (and the Administrative Agent is at the time or becomes thereafter
required to distribute to the applicable Issuing Bank) pursuant to paragraph (f) of this Section in respect of unreimbursed LC Disbursements made under any Letter of Credit denominated in an LC Currency other than US Dollars and
(iii) of each Revolving Lender’s participation in any Letter of Credit denominated in an LC Currency other than US Dollars under which an LC Disbursement has been made
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shall, automatically and with no further action required, be converted into the US Dollar Equivalent, calculated using the LC Exchange Rate
on the date that the Loans become immediately due and payable pursuant to Section 7.01 (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is made), of such amounts. On and after such
conversion, all amounts accruing and owed to the Administrative Agent, any Issuing Bank or any Revolving Lender in respect of the obligations described in this paragraph shall accrue and be payable in US Dollars at the rates
otherwise applicable hereunder.
(m) Exposure Determination.
For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases (other than any such increase consisting of the reinstatement of an amount previously drawn thereunder and reimbursed), whether or not
such maximum stated amount is in effect at the time of determination.
(n) Cash Collateralization.
If any Event of Default shall occur and be continuing, on the Business Day that the Company receives notice from the Administrative Agent or a Majority in Interest of the Revolving Lenders demanding the deposit of cash collateral
pursuant to this paragraph, each Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders and the Issuing Banks, an amount in US
Dollars equal to the LC Exposure attributable to Letters of Credit issued for the account of such Borrower as of such date plus any accrued and unpaid interest thereon; provided that (i) amounts required to be deposited in respect of any Letter of Credit or LC Disbursement shall be deposited in the currency of such Letter of Credit or LC Disbursement, except
that amounts required to be deposited in respect of LC Disbursements in an LC Currency other than US Dollars in respect of which the applicable Borrower’s reimbursement obligations have been converted to obligations in US Dollars
as provided in paragraph (f) or (l) of this Section and interest accrued thereon shall be deposited in US Dollars, and (ii) 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 with respect to any Borrower under Section 7.01(i). The Borrowers shall also deposit cash collateral in
accordance with this paragraph as and to the extent required by Section 2.08(b) or 2.17(c). Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the
applicable Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such
deposits, which investments shall be in Cash Equivalent Investments if any such investments are made (it being understood that any such investments shall be at the option and sole discretion of the Administrative Agent and at the
applicable Borrower’s risk and expense), such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent
to reimburse the Issuing Banks for LC Disbursements for which
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they have not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the
applicable Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of (A) a Majority in Interest of the Revolving Lenders and (B) in the case of any such
application at a time when any Revolving Lender is a Defaulting Lender (but only if, after giving effect thereto, the remaining cash collateral shall be less than the total LC Exposure of all the Defaulting Lenders), the consent of
each Issuing Bank), be applied to satisfy other obligations of such Borrower under this Agreement. If a Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to such Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrowers are required to provide an amount of cash
collateral hereunder pursuant to Section 2.08(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrowers to the extent that the applicable excess referred to in such Section shall have been
eliminated and no Default shall have occurred and be continuing. If the Borrowers provide an amount of cash collateral hereunder pursuant to Section 2.17(c), such amount (to the extent not applied as aforesaid) shall be returned to
the Borrowers, upon request of the Borrowers, to the extent that, after giving effect to such return, no Issuing Bank shall have any exposure in respect of any outstanding Letter of Credit that is not fully covered by the Revolving
Commitments of the Non-Defaulting Revolving Lenders and/or the remaining cash collateral and no Event of Default shall have occurred and be continuing.
SECTION 2.21. Swingline Loans. (a)Subject to the terms and conditions set forth herein, the Swingline Lender may, in its sole discretion, make
Swingline Loans denominated in US Dollars to any Borrower from time to time during the Revolving Availability Period, provided that, after
giving effect thereto, (i) the aggregate principal amount of the outstanding Swingline Loans shall not exceed US$75,000,000, (ii) no Lender’s Revolving Exposure shall exceed such Lender’s Revolving Commitment and (iii) the
Aggregate Revolving Exposure shall not exceed the Aggregate Revolving Commitment. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrowers may borrow, prepay and reborrow Swingline Loans.
For the avoidance of doubt, any reference in this Agreement to the obligation of the Swingline Lender to make a Swingline Loan being subject to the satisfaction of certain conditions or to the Swingline Lender not being required
to fund any Swingline Loan absent the occurrence of certain events (or words of similar import) shall not be deemed to create any obligation of the Swingline Lender to make or fund any Swingline Loan other than in its sole
discretion.
(b) To request a Swingline Loan, the applicable Borrower (or the Company on its behalf) shall submit to the
Swingline Lender (with a copy to the Administrative Agent) a Swingline Borrowing Request, signed by its Senior Officer, not later than 1:00 p.m., Local Time, on the day of the proposed Swingline Loan. Each such Swingline Borrowing
Request shall be irrevocable and shall specify the name of the applicable Borrower, the requested date (which shall be a Business Day) and the amount of the requested Swingline Loan and the location and number of the account of
the
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applicable Borrower to which funds are to be disbursed or, in the case of any Swingline Loan requested to finance the reimbursement of an
LC Disbursement as provided in Section 2.20(f), the identity of the Issuing Bank that has made such LC Disbursement. If the Swingline Lender shall have determined, in its sole discretion, to make the requested Swingline Loan, then
the Swingline Lender shall make such Swingline Loan available to the applicable Borrower by means of a wire transfer to the account specified in the applicable Swingline Borrowing Request or to the applicable Issuing Bank, as the
case may be, by 4:00 p.m., Local Time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New
York City time, on any Business Day require the Revolving Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of the
Swingline Loans in which the Revolving Lenders will be required to participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby absolutely and unconditionally agrees to pay, upon receipt of notice as provided above, to the Administrative Agent, for the account of
the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that, in making any Swingline Loan, the Swingline Lender shall be entitled to rely, and shall
not incur any liability for relying, upon the representation and warranty of the Borrowers deemed made pursuant to Section 4.03, unless, at least two Business Days prior to the time such Swingline Loan was made, the Majority in
Interest of the Revolving Lenders shall have notified the Swingline Lender (with a copy to the Administrative Agent) in writing that, as a result of one or more events or circumstances described in such notice, one or more of the
conditions precedent set forth in Section 4.03(a) or 4.03(b) would not be satisfied if such Swingline Loan were then made (it being understood and agreed that, in the event the Swingline Lender shall have received any such notice,
it shall have no obligation to make any Swingline Loan until and unless it shall be satisfied that the events and circumstances described in such notice shall have been cured or otherwise shall have ceased to exist). Each
Revolving Lender further acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.04 with respect to Revolving Loans made by such Revolving Lender
(and Section 2.04 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrowers of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the
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Swingline Lender from any Borrower (or other Person on behalf of any Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative
Agent to the Revolving Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided
that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not constitute a Loan and shall not relieve the applicable Borrower of its obligation to repay such Swingline Loan.
(d) The Swingline Lender may be replaced at any time by written agreement among the Company, the Administrative
Agent, the successor Swingline Lender and, except in the case of a resignation by the replaced Swingline Lender pursuant to Section 2.21(e), the replaced Swingline Lender. The Administrative Agent shall notify the Revolving
Lenders of any such replacement of the Swingline Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid interest accrued for the account of the replaced Swingline Lender pursuant to
Section 2.10(a). From and after the effective date of any such replacement, (i) the successor Swingline Lender shall have all the rights and obligations of the replaced Swingline Lender under this Agreement with respect to
Swingline Loans made thereafter and (ii) references herein to the term “Swingline Lender” shall be deemed to refer to such successor or to any previous Swingline Lender, or to such successor and all previous Swingline Lenders, as
the context shall require. After the replacement of the Swingline Lender hereunder, the replaced Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under
this Agreement with respect to Swingline Loans made by it prior to its replacement, but shall not make additional Swingline Loans.
(e) Subject to the appointment and acceptance of a successor Swingline Lender in accordance with Section
2.21(d), the Swingline Lender may resign as Swingline Lender at any time upon 30 days’ prior written notice to the Administrative Agent, the Borrower and the Revolving Lenders, in which case, the Swingline Lender shall be replaced
in accordance with Section 2.21(d).
SECTION 2.22. Borrowing Subsidiaries. (a) The Company may at any time and from time to time request the designation of any
wholly owned Subsidiary as a Borrowing Subsidiary by delivery to the Administrative Agent of a written request therefor. The effectiveness of any such designation shall be subject to (i) the prior written consent thereto by the
Administrative Agent and, other than in the case of such designation of an Approved Netherlands Borrower or any Domestic Borrowing Subsidiary, by each Revolving Lender (in each case, not to be unreasonably withheld, conditioned or
delayed), it being understood that a Revolving Lender shall be deemed to have acted reasonably in withholding its consent if (A) it is unlawful (or such Revolving Lender cannot or has not been able to determine that it is lawful)
for such Revolving Lender to make Revolving Loans and other extensions of credit under this Agreement to
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such Subsidiary, (B) the making of Revolving Loans or other extensions of credit under this Agreement to such Subsidiary might subject such
Revolving Lender to adverse tax consequences for which it is not reimbursed hereunder, (C) such Revolving Lender would be required to, or has determined that it would be prudent to, register or file in the jurisdiction of formation,
organization or location of such Subsidiary in order to make Revolving Loans or other extensions of credit under this Agreement to such Subsidiary, and such Revolving Lender does not wish to do so or (D) such Revolving Lender is
restricted by operational or administrative procedures or other applicable internal policies from making Revolving Loans or other extensions of credit under this Agreement to Persons formed, organized or located in the jurisdiction
in which such Subsidiary is formed, organized or located, (ii) (A) each Lender having received all documentation and other information with respect to such Subsidiary required by bank regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that shall have been requested by such Lender prior to a deadline notified by the Administrative Agent to the Lenders (which deadline
shall be set by the Administrative Agent in its reasonable discretion and in consultation with the Company) and (B) to the extent such Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the
Administrative Agent having received a Beneficial Ownership Certification in relation to such Subsidiary prior to a deadline notified by the Administrative Agent (which deadline shall be set by the Administrative Agent in its
reasonable discretion and in consultation with the Company) and (iii) satisfaction of the conditions set forth in Section 4.04. Upon the execution and delivery of a Borrowing Subsidiary Accession Agreement by the Company and such
Subsidiary, and the acceptance thereof by the Administrative Agent, such Subsidiary shall for all purposes of this Agreement be a Borrowing Subsidiary and a party to this Agreement.
(b) Upon the execution by the Company and delivery to the Administrative Agent of a Borrowing Subsidiary
Termination with respect to any Borrowing Subsidiary, such Subsidiary shall cease to be a Borrowing Subsidiary and a party to this Agreement; provided
that no Borrowing Subsidiary Termination will become effective as to any Borrowing Subsidiary (other than to terminate such Borrowing Subsidiary’s right to make further Revolving Borrowings or Swingline Loans or obtain Letters of
Credit under this Agreement) at a time when any principal of or interest on any Revolving Loan or Swingline Loan to such Borrowing Subsidiary, or any Letter of Credit issued for the account of such Borrowing Subsidiary, shall be
outstanding hereunder or any fees or other amounts remain unpaid with respect thereto. As soon as practicable upon receipt of a Borrowing Subsidiary Termination, the Administrative Agent shall make a copy thereof available to each
Revolving Lender.
(c) Each Borrowing Subsidiary hereby irrevocably appoints the Company as its agent for all purposes of this
Agreement and the other Loan Documents, including (i) the giving and receipt of notices (including any Borrowing Request and any Interest Election Request) and (ii) the execution and delivery of all documents, instruments and
certificates contemplated herein. Each Borrowing Subsidiary hereby acknowledges that any amendment or other modification to this Agreement or any other Loan Document may be effected as set forth in Section 10.02, that no consent
of such
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Borrowing Subsidiary shall be required to effect any such amendment or other modification and that such Borrowing Subsidiary shall be bound
by this Agreement or any other Loan Document (if it is theretofore a party thereto) as so amended or modified.
(d) Notwithstanding anything in this Agreement or any of the Loan Documents to the contrary, it is agreed, and
the Loan Documents shall in all circumstances be interpreted to provide, that each Foreign Borrowing Subsidiary is liable only for Loans made to such Foreign Borrowing Subsidiary, interest on such Loans, such Foreign Borrowing
Subsidiary’s reimbursement obligations with respect to any Letter of Credit issued for its account and for the account of its subsidiaries and interest thereon and its other Obligations, including, without limitation, general
fees, reimbursements, indemnities and charges for which it is severally liable hereunder or under any other Loan Document. Nothing in this Agreement or in any other Loan Document (including, but not limited to, provisions which
purport to impose joint and several liability on a Foreign Borrowing Subsidiary and the other Loan Parties) shall be deemed or operate to cause any Foreign Borrowing Subsidiary to Guarantee or assume liability with respect to any
Loan made to the Company or any other Loan Party, any Letters of Credit issued for the account of the Company or any other Subsidiary (other than a subsidiary of such Foreign Borrowing Subsidiary) or other Obligation for which any
other Loan Party is the primary obligor. Nothing in this paragraph is intended to limit, nor shall it be deemed to limit, any liability of the Company or any other Loan Party (other than a Foreign Borrowing Subsidiary) for any of
the Obligations, whether in its primary capacity as a Borrower, as a guarantor, at law or otherwise.
SECTION 2.23. Non-Public Lender. Any Loan extended to or for the account of a Borrower incorporated under the laws of the Netherlands shall at all times
be provided by a Lender that is a Non-Public Lender.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Administrative Agent, the Lenders and the Issuing Banks, on the Effective
Date, the Delayed Draw Term Funding Date and on each other date on which representations and warranties are required to be, or are deemed to be, made under the Loan Documents, that:
SECTION 3.01. Organization. Each of the Company and its Subsidiaries is duly organized, validly existing and, to the extent such concept is applicable
in the relevant jurisdiction, in good standing under the laws of its jurisdiction of organization, in each case (other than in the case of any Borrower), except where the failure to be so would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified to do business in each jurisdiction where, because of the nature of its activities or properties, such
qualification is required, except for such jurisdictions where the failure to so qualify would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
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SECTION 3.02. Authorization; No Conflict; Compliance with Law. The execution, delivery and performance by each Loan Party of the Loan Documents to which
it is a party and, in the case of any Borrower, the borrowing of Loans and the issuance of Letters of Credit, are within such Loan Party’s corporate or other organizational powers, and each Loan Party is duly authorized to execute
and deliver each Loan Document to which it is a party, each Borrower is duly authorized to borrow Loans and obtain Letters of Credit hereunder and each Loan Party is duly authorized to perform its obligations under each Loan
Document to which it is a party. The Transactions do not and will not (a) require
any consent or approval of, or registration or filing with, any Governmental Authority (other than any consent, approval, registration or filing that has been obtained or made and is in full force and effect or, in the case of the
GET Acquisition, will be obtained or made and be in full force and effect on the Delayed Draw Term Funding Date), (b) conflict with (i) any provision of law, (ii) the charter, by-laws or other organizational documents of the
Company or any of its Subsidiaries or (iii) the 2013 Note Indenture or any other agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon the Company or any of its Subsidiaries or
any of their respective properties or (c) require, or result in, the creation or imposition of any Lien on any material asset of the Company or any of its Subsidiaries (other than Liens in favor of the Administrative Agent created
pursuant to any of the Loan Documents), in the case of clauses (a), (b)(i) and (b)(iii), except to the extent that failure to obtain or make such consent, approval, registration or filing or, other than with respect to the 2013
Note Indenture, to the extent such conflict would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries are in compliance with all applicable laws (other
than Environmental Laws which are specifically addressed herein), except where the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect
SECTION 3.03. Validity and Binding Nature. Each of the Loan
Documents to which any Loan Party is a party has been duly executed and delivered by such Loan Party and is the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its
terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.
SECTION 3.04. Financial Condition. The audited consolidated financial statements of the Company and its Subsidiaries for and as at the end of the Fiscal
Year ended December 31, 2017, and the unaudited consolidated interim financial statements of the Company and its Subsidiaries for and as at the end of the Fiscal Quarter ended March 31, 2018, copies of each of which have been made
available to each Lender, were prepared in accordance with GAAP (subject, in the case of such unaudited statements, to the absence of footnotes and to normal year-end adjustments) and present fairly, in all material respects, the
consolidated financial position of the Company and its Subsidiaries as at such dates and the results of their operations and cash flows for the periods then ended.
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SECTION 3.05. No Material Adverse Change. Since
December 31, 2017, there has been no event or condition that has had, or would reasonably be expected to have, material adverse change in the financial condition, operations, assets, business or properties of the Company
and its Subsidiaries, taken as a whole.
SECTION 3.06. Litigation and Contingent Liabilities.
No litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the Company’s knowledge, threatened in writing against the Company or any of its
Subsidiaries (a) involving the Loan Documents or (b) that, if determined adversely, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Other than any liability incident to such
litigation or proceedings, neither the Company nor any Subsidiary has any material contingent liabilities that would be required to be disclosed by GAAP, which are not reflected in the financial statements of the Company referred to
in Section 3.04 or prepared and delivered pursuant to Section 5.01 for the fiscal period during which such material contingent liability was incurred or permitted by Section 6.01.
SECTION 3.07. Ownership of Properties. Each of the Company and its Subsidiaries owns good title to all of its owned material
properties and assets, real and personal, tangible and intangible, of any nature whatsoever (including patents, trademarks, trade names, service marks and copyrights), free and clear of all Liens except as permitted by Section 6.02
and except for defects in title that, individually or in the aggregate, do not materially interfere with the ordinary conduct of business of the Company or any Subsidiary.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth the percentage of Capital Securities in each Subsidiary owned directly or
indirectly by the Company as of the Effective Date, together with their respective legal names and places of organization, and identifying whether such Subsidiary is a Designated Subsidiary as of the Effective Date.
SECTION 3.09. Pension Plans. (a) Except as would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, each Pension Plan is in compliance with the applicable provisions of ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to qualify under Section 401(a) of the Code has
received from the IRS a favorable determination or opinion letter, which has not by its terms expired, that such Pension Plan is so qualified, or such Pension Plan is entitled to rely on an IRS advisory or opinion letter with
respect to an IRS-approved master and prototype or volume submitter plan, or a timely application for such a determination or opinion letter is currently being processed by the IRS with respect thereto; and, to the knowledge of
Company, nothing has occurred which would prevent, or cause the loss of, such qualification. The Company and each member of the ERISA Group have made all required contributions to each Pension Plan subject to Sections 412 or 430 of
the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Sections 412 or 430 of the Code has been made with respect to any Pension Plan.
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(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, (i) each Foreign Pension Plan is in compliance with all requirements of law applicable thereto and the respective requirements of the governing documents for such plan, (ii) with respect to each Foreign Pension Plan, none
of the Subsidiaries or other Affiliates of the Company or any of their respective directors, officers, employees or agents has engaged in a transaction that could subject the Company or any of its Subsidiaries, directly or
indirectly, to a tax or civil penalty, (iii) with respect to each Foreign Pension Plan, reserves have been established in the financial statements furnished to Lenders in respect of any unfunded liabilities in accordance with all
requirements of law and prudent business practice or, where required, in accordance with ordinary accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained, and (iv) no Foreign Pension Plan has any
unfunded pension liability.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect, (i) no ERISA Event has occurred during the current calendar year or the six full calendar years ending prior to the Effective Date or is reasonably expected to occur, (ii) no Pension Plan has any unfunded pension liability
(i.e., excess of benefit liabilities over the current value of that Pension Plan’s assets, determined pursuant to the assumptions used for funding the Pension Plan for the applicable plan year in accordance with Section 430 of the
Code), (iii) neither the Company nor any member of the ERISA Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than required minimum contributions
under ERISA or premiums due and not delinquent under Section 4007 of ERISA), (iv) neither the Company nor any member of the ERISA Group has incurred during the current calendar year or the six calendar years ending prior to the
Effective Date, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 of ERISA, with respect to a
Multiemployer Plan and (v) neither the Company nor any member of the ERISA Group has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
SECTION 3.10. Investment Company Act. No Loan Party is an
“investment company” within the meaning of, or subject to regulation under, the Investment Company Act of 1940.
SECTION 3.11. Regulation U. Neither the Company nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock or extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds
of any Loan has been or will be used, immediately, incidentally, or ultimately, for any purpose which entails a violation (including on the part of any Lender) of the provisions of the regulations of the Board of Governors,
including Regulation U. Not more than 25% of the value of the assets subject to any restrictions on the sale, pledge or other disposition of assets under this Agreement, any other Loan Document or any other agreement between the
Company or any Subsidiary and any Lender or Affiliate of a Lender will at any time be represented by Margin Stock.
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SECTION 3.12. Solvency. On the Effective Date
and on the Delayed Draw Term Funding Date, in each case, after giving effect to the making of the Loans and the application of the proceeds thereof and the consummation of the other Transactions to occur on such date, (a)
the fair value of the assets of the Company and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of
the property of the Company and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) the Company and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured and (d) the Company and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably
small capital. For purposes of this Section, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual or matured liability.
SECTION 3.13. Environmental Matters. The
on-going operations of each of the Company and its Subsidiaries comply in all respects with all Environmental Laws, except where failure to comply would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect. Each of the Company and its Subsidiaries has obtained, and maintains in good standing, all licenses, permits, authorizations, registrations and other approvals required under any Environmental Law and
required for their respective operations, and each of the Company and its Subsidiaries is in compliance with all terms and conditions thereof, except where the failure to so obtain, maintain or comply would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect. None of the Company, its Subsidiaries or any of their respective properties or operations is subject to any written order from or agreement with any
Governmental Authority, nor any pending or, to the knowledge of the Company, threatened judicial or docketed administrative or other proceeding or investigation, relating to or arising out of any Environmental Law which would
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has treated, stored, transported or Released any Hazardous Substances on, at, under or from
any currently or formerly owned, leased or operated real property that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.14. Insurance. The properties of the Company and each of its Subsidiaries are insured pursuant to policies and other
bonds (including self-insurance) which are valid and in full force and effect and which provide adequate coverage from reputable and financially sound insurers in amounts sufficient to insure the assets and risks of the Company and
each such Subsidiary in accordance with prudent business practice in the industry of the Company or such Subsidiary.
SECTION 3.15. Information. (a) The Confidential Information Memorandum and all other written information heretofore or contemporaneously herewith
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furnished by or on behalf of the Company or any of its Subsidiaries to the Administrative Agent, any Arranger or any Lender for purposes of
or in connection with this Agreement and the other Loan Documents and the other transactions contemplated hereby and thereby, and all written information hereafter furnished by or on behalf of the Company or any Subsidiary to the
Administrative Agent, any Arranger or any Lender pursuant to or in connection with this Agreement or any other Loan Document (in each case, other than financial projections and other forward-looking information and information of a
general economic or industry-specific nature) is and will be, when furnished and taken as a whole, complete and correct in all material respects and does not and will not, when furnished and taken as a whole, contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (in each case after giving
effect to all supplements and updates theretofore provided). The financial projections and other forward-looking information that have been or will be made available by or on behalf of the Company or any of its Subsidiaries to the
Administrative Agent, any Arranger or any Lender for purposes of or in connection with this Agreement and the other Loan Documents and the other transactions contemplated hereby and thereby have been and will be prepared in good
faith based upon assumptions that are believed by the preparer thereof to be reasonable at the time such financial projections or forward-looking information are furnished to the Administrative Agent, any Arranger or any Lender (it
being understood and agreed that financial projections and other forward-looking information are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are
out of the Company’s control, that no assurance can be given that any particular projections will be realized, that the financial projections or other forward-looking information are not a guarantee of financial performance and that
actual results during the period or periods covered by such financial projections or other forward-looking information may differ significantly from the projected results and such differences may be material).
(b) If a
Beneficial Ownership Certification is required to be delivered pursuant to Section 4.01(g), then, as of the Effective Date, the information set forth in such Beneficial Ownership Certification is true and correct in all
respects. If a Beneficial Ownership Certification is required to be delivered pursuant to Section 2.22(a) or Section 5.11, then, as of the date of the delivery thereof, the information set forth in such Beneficial Ownership
Certification is true and correct in all respects.
SECTION 3.16. Intellectual Property. Each of the Company and its
Subsidiaries owns and possesses or has a license or other right to use all patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service mark rights and copyrights as are necessary for
the conduct of the businesses of the Company and its Subsidiaries, without any infringement upon rights of others, in each case, except where the failure to do so or such infringement would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 3.17. Labor Matters. There are no existing or, to the
knowledge of the Company, threatened strikes, lockouts or other labor disputes involving
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the Company or any of its Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.
SECTION 3.18. No Default. No Default or Event of Default exists or would result from the incurrence by any Loan Party of any
Indebtedness hereunder or under any other Loan Document.
SECTION 3.19. Anti-Corruption Laws and Sanctions; Use of Proceeds. The Company has implemented and maintains in effect policies
and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and
their respective directors and officers and, to the knowledge of the Company, their respective employees or agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the
Company, any of its Subsidiaries or any of their respective directors or officers, or (b) to the knowledge of the Company, any employee or agent of the Company or any Subsidiary that will act in any capacity in connection with or
benefit from any of the credit facilities established hereby, is a Sanctioned Person. The Borrowers will use the proceeds of the Loans and the Letters of Credit solely for the purposes permitted by Section 5.07. No Loan or Letter of
Credit or use of proceeds thereof will violate Sanctions applicable to any party hereto or any Anti-Corruption Laws.
SECTION 3.20. EEAAffected Financial Institutions. No Loan Party is
an EEAAffected Financial Institution.
SECTION 3.21. Ranking of Obligations. The
obligations of each Foreign Borrowing Subsidiary under the Loan Documents to which it is a party rank at least equally with all of the unsubordinated Indebtedness of such Foreign Borrowing Subsidiary, and ahead of all
subordinated Indebtedness, if any, of such Foreign Borrowing Subsidiary.
SECTION 3.22. Immunity. Each Foreign Subsidiary Borrower is subject to civil and commercial laws with respect to its
obligations under the Loan Documents to which it is a party, and the execution, delivery and performance by such Foreign Subsidiary Borrower of any Loan Document constitute and will constitute private and commercial acts and not
public or governmental acts. Neither any Foreign Subsidiary Borrower nor any of its properties has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Subsidiary Borrower is organized in respect of its obligations under any Loan Document to which it is a
party.
SECTION 3.23. Proper Form; No Recordation. Each Loan Document to which any Foreign Subsidiary Borrower is a party is in
proper legal form under the laws of its jurisdiction of organization for the enforcement thereof against such Foreign Subsidiary Borrower under such laws and to ensure the legality, validity, enforceability, priority or
admissibility in evidence of such Loan Document. It is not necessary, in order
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to ensure the legality, validity, enforceability, priority or admissibility in evidence of any Loan Document to which any Foreign
Subsidiary Borrower is a party that such Loan Document be filed, registered or recorded with, or executed or notarized before, any court or other Governmental Authority in its jurisdiction of organization or that any registration
charge or stamp or similar tax be paid on or in respect of such Loan Document, except for (a) any such filing, registration, recording, execution or notarization as has been made or is not required to be made until the applicable Loan Document is sought to be enforced and (b) any charge or tax as has
been timely paid by such Foreign Subsidiary Borrower.
SECTION 3.24. Centre of Main Interests. No Loan Party incorporated in the European Union will, without the prior written consent of the Administrative
Agent, deliberately cause or allow its centre of main interests (as such term is used in Article 3(l) of the Regulation (EU) No. 2015/848/ of 20 May 2015 of the European Parliament and of the Council on Insolvency Proceedings
(recast)) to change in a manner that would materially adversely affect the Credit Parties.
SECTION 3.25. Tax Residency of Netherland Borrowing Subsidiary. Neither WABTEC UA nor any other Borrowing Subsidiary organized under the laws of the
Netherlands is considered to be a resident of any jurisdiction other than the Netherlands for the purposes of any double taxation convention concluded by the Netherlands, for the purposes of the Tax Arrangement for the Kingdom (Belastingregeling voor het Koninkrijk) or for purposes of the Tax Arrangement for the country of the Netherlands (Belastingregeling voor het land Nederland), or otherwise.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Effective Date. The effectiveness of this Agreement and the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions shall be satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent shall have received from each party hereto (i) a counterpart of
this Agreement executed by each party hereto or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic imaging) that such party has signed a counterpart of this
Agreement.
(b) The Administrative Agent shall have received from the Company and each Designated
Subsidiary (i) a counterpart of the Guarantee Agreement executed by such Person or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic imaging) that such
Person has signed a counterpart of the Guarantee Agreement.
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(c) The Administrative Agent and the Arrangers shall have received a favorable written
opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Effective Date) of Jones Day, and, to the extent not covered by the foregoing, counsel reasonably acceptable to the Arrangers in each
other jurisdiction where any Subsidiary Guarantor is organized, in each case in form and substance reasonably satisfactory to the Administrative Agent and the Arrangers.
(d) The Administrative Agent and the Arrangers shall have received such customary documents
and certificates as the Administrative Agent and the Arrangers may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Loan Documents, the incumbency of the
Persons executing any Loan Document on behalf of each Loan Party and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and the Arrangers.
(e) The Administrative Agent and the Arrangers shall have received a certificate, dated the
Effective Date and signed by the chief executive officer or the chief financial officer of the Company, certifying that, as of the Effective Date and after giving effect to the Transactions that are to occur on such date, (i) the
representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all
material respects and (ii) no Default has occurred and is continuing.
(f) The Administrative Agent and the Arrangers shall have received a solvency certificate
from the chief financial officer of the Company in the form of Exhibit I demonstrating solvency (on a consolidated basis) of the Company and the Subsidiaries as of the Effective Date after giving effect to the Transactions that
are to occur on such date.
(g) The Administrative Agent and the Arrangers shall have received, at least two Business Days
prior to the Effective Date, (i) all documentation and other information regarding each Loan Party required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations,
including the USA PATRIOT Act, to the extent reasonably requested at least 10 Business Days prior to the Effective Date, and (ii) to the extent any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification in relation to such Loan Party.
(h) All costs, expenses (including reasonable and documented legal fees and expenses) and fees
contemplated by the Loan Documents (or separately agreed by the Company with any of the Arrangers or the Administrative Agent) to be reimbursable or payable to the Arrangers (or Affiliates thereof), the Administrative Agent or the
Lenders shall have been paid on or prior to the
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Effective Date, in each case, to the extent required to be paid on or prior to the Effective Date and, in the case of
costs and expenses, invoiced at least two Business Days prior to the Effective Date.
(i) The Existing Credit Agreement Refinancing shall have been consummated (or substantially
concurrently with the funding under the Refinancing Term Facility on the Effective Date shall be consummated), and the Administrative Agent and the Arrangers shall have received customary payoff documentation in respect thereof.
(j) The conditions set forth in Section 4.04 in respect of WABTEC UA shall have been
satisfied (or waived in accordance with Section 10.02).
(k) Each Guarantee of any Indebtedness outstanding under the 2013 Note Indenture by any
Subsidiary that shall not be a Subsidiary Guarantor on the Effective Date shall have been (or substantially concurrently with the funding under the Refinancing Term Facility on the Effective Date shall be) released and discharged,
and the Administrative Agent and the Arrangers shall have received customary evidence thereof.
The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Conditions to Delayed Draw Term Funding Date. The obligations of the Delayed Draw Term Lenders to make Delayed Draw Term Loans hereunder
are subject to the occurrence of the Effective Date, receipt by the Administrative Agent of a Borrowing Request (modified to reflect the limited conditions set forth in Section 4.02(f) below) therefor in accordance with Section 2.03
and the satisfaction (or waiver in accordance with Section 10.02) of the following conditions:
(a) The GET Internal Reorganization and the GET SpinCo Transfer shall have been consummated
prior to or substantially concurrently with the funding of the Delayed Draw Term Loans on the Delayed Draw Term Funding Date, and the GET Direct Sale, the GET Distribution and the GET Acquisition (including the GET Merger) shall
be consummated substantially concurrently with the funding of the Delayed Draw Term Loans on the Delayed Draw Term Funding Date, in each case, pursuant to and in all material respects on the terms of set forth in the GET
Separation Agreement and the GET Merger Agreement (in each case, without any waiver, amendment, modification or supplement thereof by the Company or any of its Affiliates or any consent or election thereunder by the Company or any
of its Affiliates that, in any such case, is material and adverse to the interests of the Lenders or the Arrangers (in either case, in their capacities as such) without the prior written consent of the Arrangers (not to be
unreasonably withheld, conditioned or delayed), it being understood and agreed that (i) any reduction, when taken together with all prior reductions, of less than 10% in the aggregate amount of the consideration for the GET
Acquisition from the amount set forth in the GET Separation Agreement and the GET Merger Agreement (in
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each case, as in effect on the Signing Date) will be deemed not to be (and any such reduction of 10% or more will be
deemed to be) material and adverse to interests of the Lenders or the Arrangers, provided, in the case of any such reduction of less than 10%,
that the aggregate principal amount of the Bridge Facility shall have been reduced on a dollar-for-dollar basis by the amount of any such reduction in the consideration for the GET Direct Sale, and (ii) any increase, when taken
together with all prior increases, of less than 10% in the aggregate amount of the consideration for the GET Acquisition from the amount set forth in the GET Separation Agreement and the GET Merger Agreement (in each case, as in
effect on the Signing Date) will be deemed not to be (and any such increase of 10% or more will be deemed to be) material and adverse to interests of the Lenders and the Arrangers.
(b) Since the Signing Date, there shall not have occurred any event, change, effect,
development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a GET Acquired Business Material Adverse Effect.
(c) All costs, expenses (including reasonable and documented legal fees and expenses) and fees
contemplated by the Loan Documents (or separately agreed by the Company with any of the Arrangers or the Administrative Agent) to be reimbursable or payable to the Arrangers (or Affiliates thereof), the Administrative Agent or the
Delayed Draw Term Lenders shall have been paid on or prior to the Delayed Draw Term Funding Date, in each case, to the extent required to be paid on or prior to the Delayed Draw Term Funding Date and, in the case of costs and
expenses, invoiced at least two Business Days prior to the Delayed Draw Term Funding Date.
(d) The Administrative Agent and the Arrangers shall have received a certificate, dated the
Delayed Draw Term Funding Date and signed by the chief executive officer or the chief financial officer of the Company, certifying that the conditions set forth in paragraphs (a), (b) and (f) of this Section shall have been
satisfied.
(e) The Administrative Agent and the Arrangers shall have received a solvency certificate from
the chief financial officer of the Company in the form of Exhibit I demonstrating solvency (on a consolidated basis) of the Company and the Subsidiaries as of the Delayed Draw Term Funding Date after giving effect to the
Transactions that are to occur on such date.
(f) At the time of and upon giving effect to the borrowing and application of the Delayed
Draw Term Loans on the Delayed Draw Term Funding Date (and after giving effect to the other Transactions), (i) the GET Merger Agreement Representations shall be true and correct, (ii) the Specified Representations shall be true
and correct (A) in the case of any Specified Representations qualified as to materiality, in all respects and (B) otherwise, in all material respects and (iii) there shall not exist any Event of Default under Section
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7.01(a) (with respect to amounts due under the Delayed Draw Term Facility only), Section 7.01(i) (with respect to the
Company only) or Section 7.01(c)(i) (with respect to the failure to perform any covenant contained in Section 6.04(a) or 6.04(b) only).
The Administrative Agent shall notify the Company and the Lenders of the Delayed Draw Term Funding Date, and such notice shall be
conclusive and binding.
SECTION 4.03. Conditions to Each Revolving Credit Event. The
obligation of each Revolving Lender to make a Revolving Loan on the occasion of each Revolving Borrowing (other than any conversion or continuation of any Revolving Loan), of the Swingline Lender to make a Swingline Loan and of each
Issuing Bank to issue, amend to increase the amount thereof, renew (other than an automatic annual renewal of any Letter of Credit in accordance with the terms thereof) or extend any Letter of Credit is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth in the Loan Documents
(other than, after the Effective Date, the representations and warranties set forth in Sections 3.05 and 3.06) shall be true and correct (i) in the case of the representations and warranties qualified as to materiality, in all
respects and (ii) otherwise, in all material respects, in each case on and as of the date of such Borrowing or the date of such issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except in the case
of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date.
(b) At the time of and immediately after giving effect to such Borrowing or such issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
On the date of any Revolving Borrowing (other than any conversion or continuation of any Revolving Loan) or any Swingline Loan or the
issuance, amendment to increase the amount thereof, renewal (other than an automatic annual renewal of any Letter of Credit in accordance with the terms thereof) or extension of any Letter of Credit, the Company and the applicable
Borrower shall be deemed to have represented and warranted that the conditions specified in paragraphs (a) and (b) of this Section have been satisfied.
SECTION 4.04. Conditions
to Initial Revolving Credit Event to each Borrowing Subsidiary. The obligations of the Revolving Lenders to make Revolving
Loans, of the Swingline Lender to make any Swingline Loan and of the Issuing Banks to issue Letters of Credit hereunder to or for the account of any Borrowing Subsidiary shall not become effective until the date on which each of the
following additional conditions shall be satisfied (unless waived in accordance with Section 10.02):
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(a) The Administrative Agent shall have received a favorable written opinion (addressed to
the Administrative Agent, the Lenders and the Issuing Banks and dated the date such Subsidiary is to become a Borrowing Subsidiary) of counsel to such Borrowing Subsidiary reasonably satisfactory to the Administrative Agent, in
form and substance reasonably satisfactory to the Administrative Agent.
(b) The Administrative Agent shall have received such documents and certificates as the
Administrative Agent may reasonably request relating to the organization, existence and, if applicable, good standing of such Borrowing Subsidiary, the authorization of the Loan Documents by such Borrowing Subsidiary, the
incumbency of the Persons executing any Loan Document on behalf of such Borrowing Subsidiary and any other legal matters reasonably relating to such Borrowing Subsidiary, this Agreement or (other than in the case of WABTEC UA) its
Borrowing Subsidiary Accession Agreement, all in form and substance reasonably satisfactory to the Administrative Agent.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, all Letters of Credit shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the Company covenants and agrees that:
SECTION 5.01. Financial Reporting. The Company shall furnish to the Administrative Agent (for further delivery to each Lender):
(a) Quarterly Reports.
As soon as practicable and in any event within 45 days after the end of each of the first three Fiscal Quarters of each of its Fiscal Years (commencing with the Fiscal Quarter ending June 30, 2018), an unaudited condensed
consolidated balance sheet of the Company and its Subsidiaries as at the end of such Fiscal Quarter and related unaudited condensed consolidated statements of income, comprehensive income and cash flows for such Fiscal Quarter and
the period from the beginning of such Fiscal Year to the end of such Fiscal Quarter (and, in the case of the consolidated statements of income and cash flows, on a comparative basis with the statements for such period in the prior
Fiscal Year of the Company), which shall present fairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and their results of operations and cash flows
for the periods indicated in accordance with GAAP, subject to normal year-end audit adjustments and the absence of certain footnotes.
(b) Annual Reports. As
soon as practicable, and in any event within 90 days after the end of each of its Fiscal Years, commencing with the Fiscal Year ending December 31, 2018, an audited consolidated balance sheet of the Company and its Subsidiaries as
at the end of such Fiscal Year and related audited consolidated statements
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of income, comprehensive income, shareholders’ equity and cash flows for such Fiscal Year, accompanied by an audit report thereon of a
nationally recognized independent registered public accounting firm, which audit report shall not contain any “going concern” or like qualification or exception or any qualification or exception as to the scope of audit and shall
state that such financial statements present fairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries as at the dates indicated and their results of operations and cash flows for the
periods indicated in conformity with GAAP and that the examination by such accounting firm in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards in the
United States.
(c) Compliance Certificate. Together with each delivery of any financial
statements pursuant to paragraphs (a) and (b) of this Section, a Compliance Certificate, signed by a Senior Officer of the Company, (i) setting forth calculations for the period then ended which demonstrate compliance with Section
6.08, calculating the Leverage Ratio for purposes of determining the then Applicable Rate and stating that as of the date of such Compliance Certificate no Default or Event of Default exists, or if any Default or Event of Default
exists, stating the nature and status thereof and (ii) if, as a result of any change in GAAP or in the application thereof after the date hereof, the Company, the Administrative Agent or the Required Lenders shall have requested
pursuant to Section 1.04(a) an amendment to any provision hereof to eliminate the effect of such change, until such request shall have been withdrawn or such provision shall have been amended, attaching one or more statements of
reconciliation specifying in reasonable detail the effect of such change on such financial statements, including those for the prior period.
Documents required to be delivered to (i) the Administrative Agent pursuant to paragraph (a) or (b) of this Section or
pursuant to Section 5.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) or (ii) any Lender pursuant to this Section or pursuant to Section 5.02 may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date on which (A) the Company posts such documents, or provides a link thereto, on the Company’s website on the Internet at the website address www.wabtec.com, (B) such
documents are posted on the SEC’s website at www.sec.gov or (C) such documents are posted on the Company’s behalf on an Internet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent, including the Platform).
SECTION 5.02. Notices; Other Information.
(a) Notice of Default. Promptly after any Senior Officer of the Company obtains
knowledge of the occurrence or existence of a Default or Event of Default, the Company shall furnish to the Administrative Agent (for further delivery to each Lender) a certificate signed by a Senior Officer of the Company setting
forth the details of such Default or Event of Default and the action which the Company proposes to take with respect thereto.
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(b) Notice of Litigation, ERISA and
Environmental Matters. Promptly after any officer of the Company obtains knowledge of any of the following, the Company shall furnish to the Administrative Agent (for further delivery to each Lender) written notice
describing the same and the actions being taken by the Company or the Subsidiary affected thereby with respect thereto:
(i) any litigation, arbitration or governmental investigation or proceeding not previously disclosed by the Company to the Lenders which has been instituted or, is threatened in writing against the
Company or any of its Subsidiaries or to which any of the properties of the Company or any of its Subsidiaries is subject or any change or adverse development in any such litigation, arbitration or governmental investigation or
proceeding, whether or not such litigation, arbitration or governmental investigation or proceeding was previously disclosed by the Company to the Lenders (including any change in insurance coverage or rights of indemnification or
contribution with respect thereto), that, in any such case, if determined adversely, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(ii) the occurrence of any ERISA Events that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; or
(iii) any violations of any Environmental Law or the assertion of any Environmental Claims that
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) Reports to the SEC and to
Shareholders. Promptly upon the filing or sending thereof, the Company shall furnish copies to the Administrative Agent (for further delivery to each Lender) of all regular, periodic or special reports of the
Company or any Subsidiary filed with the SEC, copies of all registration statements of the Company or any Subsidiary filed with the SEC (other than on Form S-8) and copies of all proxy statements or other communications made to
security holders of the Company generally.
(d) Other Information. The Company shall, promptly following a request by any
Lender, prepare and deliver to such Lender all documentation and other information with respect to the Company and its Subsidiaries such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. The Company shall (i) prepare and deliver to the Administrative Agent (for further delivery
to each Lender) notice of any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in such Beneficial Ownership Certification and (ii)
promptly upon receiving a request therefor from the Administrative Agent, prepare and deliver to the Administrative Agent (for further delivery to each applicable Lender, as the case may be) such other information with respect to
the Company or any of its Subsidiaries as from time to time may be reasonably requested by the Administrative Agent (or by any Lender through the Administrative Agent).
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SECTION 5.03. Books, Records and Inspections. The Company shall, and shall cause each of its Subsidiaries to, (a) keep its books and records in
accordance with sound business practices sufficient to allow the preparation of financial statements in accordance with GAAP, (b) permit any Lender or the Administrative Agent or any representative thereof to inspect the properties
and operations of the Company and its Subsidiaries and (c) permit at any reasonable time and with reasonable notice (or at any time without notice if an Event of Default exists), any Lender or the Administrative Agent or any
representative thereof to visit any or all of its offices, to discuss its financial matters with its officers and to examine (and, at the expense of the Company, photocopy extracts from) any of its books or other records; provided that, notwithstanding anything to the contrary in Section 10.03, the Company shall not be required to reimburse any Lender or the
Administrative Agent for any costs or expenses incurred by it in connection with any such inspection, visit or audit, other than, in the case of the Administrative Agent only, any such inspection, visit or audit commenced when a
Default or Event of Default shall have occurred and is continuing.
SECTION 5.04. Maintenance of Property; Insurance. The Company
shall, and shall cause each of its Subsidiaries to:
(a) keep all property necessary in the business of the Company or such Subsidiary in working order and
condition, ordinary wear and tear excepted, except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; and
(b) insure the properties and assets of the Company and its Subsidiaries against loss or damage by fire and such
other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability, and business interruption insurance) and against other risks (including
errors and omissions) in such amounts as similar properties and assets are insured, in each case, by prudent companies in similar circumstances carrying on similar businesses, and with insurers believed by the Company to be
reputable and financially sound, including self-insurance to the extent customary.
SECTION 5.05. Compliance with Laws. The Company shall, and shall cause each of its Subsidiaries to, comply with all applicable laws, except where
failure to comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.06. Maintenance of Existence, Etc. Subject to Section 6.04, the Company shall, and shall cause each of its Subsidiaries to, maintain and
preserve its existence and good standing in the jurisdiction of its organization and its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification necessary, in
each case, except where the failure to maintain such existence (other than in the case of the Company or any Borrowing Subsidiary) or the failure to be in good standing or qualified would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
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SECTION 5.07. Use of Proceeds. The proceeds of the Refinancing
Term Loans will be used solely to finance, in part, the Existing Credit Agreement Refinancing and the payment of fees and expenses related to the Transactions. The proceeds of the Delayed Draw Term Loans will be used solely to
finance, in part, the GET Direct Sale and the payment of fees and expenses related to the Transactions. The proceeds of the Revolving Loans and Swingline Loans will be used solely for working capital needs and other general
corporate purposes of the Company and its Subsidiaries. Letters of Credit will be issued only to support obligations of Company and its Subsidiaries incurred in connection with working capital needs and other general corporate
purposes of the Company and its Subsidiaries. No Borrower will request any Loan or Letter of Credit, and no Borrower shall use, and each Borrower shall procure that its subsidiaries shall not use, the proceeds of any Loan or Letter
of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of
funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any
party hereto.
SECTION 5.08. Employee Benefit Plans. The Company shall, and shall cause each of its
Subsidiaries to:
(a) maintain, and, if applicable, cause each other member of the ERISA Group to maintain, each Pension Plan and
each Foreign Pension Plan in compliance with all applicable requirements of law, except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
(b) make, and cause each other member of the ERISA Group to make, on a timely basis, all required contributions
to any Multiemployer Plan, except where the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(c) not, and not permit any other member of the ERISA Group to, (i) seek a waiver of the minimum funding
standards of ERISA, (ii) terminate or withdraw from any Pension Plan or Multiemployer Plan or (iii) take any other action with respect to any Pension Plan that would reasonably be expected to entitle the PBGC to terminate, impose
liability (other than timely payment of PBGC premiums) in respect of, or cause a trustee to be appointed to administer, any Pension Plan, unless the actions or events described in clauses (i), (ii) and (iii) would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 5.09. Environmental Matters. The Company shall, and shall cause each of its Subsidiaries to, comply with all applicable Environmental Laws,
except where the failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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SECTION 5.10. Payment of Taxes. The Company shall, and shall cause each of its Subsidiaries to, pay its Taxes before the same shall become delinquent or
in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings, (ii) the Company or such Subsidiary has set aside on its books reserves with respect thereto to the extent
required by GAAP and (iii) such contest effectively suspends collection of the contested obligation and the enforcement of any Lien securing such obligation or (b) the failure to make payment would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.11. Anti-Corruption Laws. The Company shall maintain in effect policies and procedures designed to ensure compliance by the Company, its
Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.12. Guarantee Requirement. If any Subsidiary is formed or acquired after the Effective Date and such Subsidiary is a Designated Subsidiary, or
any Subsidiary otherwise becomes a Designated Subsidiary (including as a result of becoming a Material Subsidiary), the Company shall, as promptly as practicable, and in any event within 30 days (or such longer period as the
Administrative Agent may agree to in writing), notify the Administrative Agent thereof and cause the Guarantee Requirement to be satisfied with respect to such Subsidiary. In connection with the foregoing, the Company shall promptly
deliver to the Administrative Agent (a) all documentation and other information regarding such Subsidiary required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations,
including the USA PATRIOT Act, to the extent reasonably requested by the Administrative Agent or any Lender, and (b) if such Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial
Ownership Certification to the extent requested by the Administrative Agent or any Lender.
SECTION 5.13. Further Assurances. The Company shall, and shall cause
each other Loan Party to, execute any and all further documents, agreements and instruments, and take all such further actions, that may be required under any applicable law, or that the Administrative Agent may reasonably request,
to cause the Guarantee Requirement to be and remain satisfied at all times or otherwise to effectuate the provisions of the Loan Documents, all at the expense of the Loan Parties.
ARTICLE VI
Negative Covenants
Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees
payable hereunder shall have been paid in full, all Letters of Credit shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the Company covenants and agrees that:
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SECTION 6.01. Indebtedness. The Company shall not
permit any Subsidiary (other than a Subsidiary Guarantor) to, at any time create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Subsidiary (i) incurred to finance the acquisition, construction or improvement of any
fixed or capital assets, including any Capital Lease, provided that such Indebtedness is incurred prior to or within 270 days after such
acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets, or (ii) assumed in
connection with the acquisition of any fixed or capital assets, and, in each case, any extensions, renewals or refinancings thereof, provided
that the amount of such Indebtedness is not increased at the time of such extension, renewal or refinancing thereof except by an amount equal to any premium or other amount paid, and fees and expenses incurred, in connection with
such extension, renewal or refinancing;
(b) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is
merged or consolidated with or into a Subsidiary in a transaction permitted hereunder) after the Effective Date, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such
Subsidiary in an Acquisition, provided that such Indebtedness exists 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 any extensions, renewals
and refinancings thereof, provided that the amount of such Indebtedness is not increased at the time of such extension, renewal or
refinancing thereof except by an amount equal to any premium or other amount paid, and fees and expenses incurred, in connection with such extension, renewal or refinancing;
(c) Indebtedness of any Subsidiary owed to the Company or any other Subsidiary, provided that such Indebtedness shall not have been transferred to any other Person other than the Company or a Subsidiary;
(d) Hedging Liabilities arising under Hedging Agreements entered into to hedge or mitigate risks to which such
Subsidiary has actual exposure (and not for speculative purposes);
(e) Indebtedness arising in connection with Cash Management Services entered into in the ordinary course of
business;
(f) Indebtedness described on Schedule 6.01 and any extension, renewal or refinancing thereof, provided that the amount of such Indebtedness is not increased at the time of such extension, renewal or refinancing thereof except by an amount
equal to any premium or other amount paid, and fees and expenses incurred, in connection with such extension, renewal or refinancing;
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(g) Guarantees by any Subsidiary of Indebtedness of any other Subsidiary that is not a Loan Party; provided, that a Subsidiary shall not Guarantee Indebtedness of any other Subsidiary that it would not have been permitted to incur under this
Section if it were a primary obligor thereon;
(h) to the extent constituting Indebtedness, (i) obligations of any Subsidiary in respect of surety bonds,
performance bonds, bid bonds, performance guarantees, letters of credit, bank guaranties or similar obligations, in each case, arising in the ordinary course of business and supporting obligations that do not constitute
Indebtedness and (ii) guaranties of performance, completion, quality and the like provided by any Subsidiary with respect to performance or similar obligations owing to any Person by the Company or any of its Subsidiaries;
(i) Indebtedness of Foreign Subsidiaries in an aggregate principal amount at any time outstanding not to exceed
US$200,000,000;
(j) senior unsecured Indebtedness of Foreign Subsidiaries
in an aggregate principal amount at any time outstanding not to exceed €600,000,000;
(k) Securitization Transactions in an aggregate amount (as determined in
accordance with the definition thereof) at any time outstanding not to exceed US$300,000,000;
(l) (j)
any Indebtedness arising under Guarantees entered into pursuant to Section 2:403 of the Dutch Civil Code in
respect of a Subsidiary incorporated in the Netherlands and any residual liability with respect to such Guarantees arising under Section 2:404 of the Dutch Civil Code;
(m) (k)
any joint and several liability arising as a result of (the establishment) of a fiscal unity (fiscale eenheid) between the Loan Parties incorporated in the Netherlands or its equivalent in any other relevant jurisdiction; and
(n) (l)
other Indebtedness (in addition to any Indebtedness permitted pursuant to clauses (a) through (km) above), provided that at the time of and after giving pro forma effect to the incurrence of any such Indebtedness, the
sum, without duplication, of (i) the aggregate principal amount of the outstanding Indebtedness of Subsidiaries permitted by this clause (ln) and (ii) the aggregate principal amount of the outstanding Indebtedness or other obligations secured by Liens permitted by Section 6.02(vw) does not exceed the greater of (A) 15% of the Consolidated Net Tangible Assets and (B) US$200,000,000.
SECTION 6.02. Liens. The Company shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Lien on any of its property or assets, tangible or intangible, now owned or hereafter acquired, except:
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(a) Liens for Taxes or other governmental charges (i) not at the time delinquent, (ii) thereafter payable
without penalty or (iii) being contested in good faith by appropriate proceedings and, in each case, for which it maintains adequate reserves;
(b) Liens arising in the ordinary course of business, including (i) Liens of carriers, warehousemen,
mechanics and materialmen and other similar Liens imposed by law and (ii) Liens in the form of deposits or pledges incurred in connection with worker’s compensation, unemployment compensation and other types of
social security (excluding Liens arising under ERISA) or in connection with surety bonds, performance bonds, bid bonds, performance guarantees and similar obligations permitted hereunder for sums not overdue or
being contested in good faith by appropriate proceedings and not involving any advances or borrowed money or the deferred purchase price of property or services and, in each case, for which it maintains adequate
reserves;
(c) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds
maintained with depository institutions and securities accounts and other financial assets maintained with securities intermediaries; provided
that such deposit accounts or funds and securities accounts or other financial assets are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to
restrictions on access by the Company or any Subsidiary in excess of those required by applicable banking regulations;
(d) Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar filings under
applicable law) regarding operating leases entered into by the Company and the Subsidiaries in the ordinary course of business;
(e) Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a
licensee, lessee or sublicensee or sublessee, in the property subject to any lease (other than Capital Leases), license or sublicense permitted by this Agreement;
(f) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods;
(g) deposits of cash with the owner or lessor of premises leased and operated by the Company or any
Subsidiary to secure the performance of its obligations under the lease for such premises, in each case in the ordinary course of business;
(h) Liens on cash and Cash Equivalent Investments deposited with a trustee or a similar Person to defease
or to satisfy and discharge any Indebtedness, provided that such defeasance or satisfaction and discharge is permitted hereunder;
(i) Liens that are contractual rights of set-off;
(j) attachments, appeal bonds, judgments and other similar Liens, provided that (i) no Event of Default under Section 7.01(f) has occurred and is continuing
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at the time of incurrence thereof and (ii) the execution or other enforcement of such Liens is effectively stayed and the claims
secured thereby are being actively contested in good faith and by appropriate proceedings;
(k) Liens on contracts entered into with its customers by the Company or any of its Subsidiaries and the
assets related thereto to secure the obligations of the Company or such Subsidiary in respect of such contracts, in each case to assure performance of such contracts;
(l) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens
not interfering in any material respect with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(m) Liens arising under the Loan Documents from time to time;
(n) in connection with the sale, transfer or other disposition of any Capital Securities or assets in a
transaction permitted under Section 6.04, customary rights and restrictions contained in agreements relating to such sale, transfer or other disposition pending the completion thereof;
(o) in the case of (i) any Subsidiary that is not a wholly owned Subsidiary or (ii) the Capital Securities in
any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Capital Securities in such Subsidiary or such other Person set forth in the organizational
documents of such Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement;
(p) Liens solely on any cash earnest money deposits, escrow arrangements or
similar arrangements made by the Company or any Subsidiary in connection with any letter of intent or purchase agreement for an Acquisition or other transaction permitted hereunder;
(q) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary
securing Indebtedness, including Capital Leases, or other obligations incurred to finance such acquisition, construction or improvement and extensions, renewals and refinancings thereof that do not increase the
outstanding principal amount thereof except by an amount equal to any premium or other amount paid, and fees and expenses incurred, in connection with such extension, renewal or refinancing, provided that (i) such Liens and the Indebtedness secured thereby are incurred prior to or within 270 days after such acquisition or the
completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such Liens shall not
apply to any other assets of the Company or any Subsidiary (other than improvements or accessions thereto and the proceeds thereof), provided further that individual financings of equipment or other fixed or capital assets otherwise permitted to be secured hereunder provided by
any Person (or its Affiliates) may be cross-collateralized to other such financings provided by such Person (or its Affiliates);
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(r) any Lien on any asset acquired by the Company or any Subsidiary after the Effective Date existing at the
time of the acquisition thereof or existing on any asset of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Company or a
Subsidiary in a transaction permitted hereunder) after the Effective Date and prior to the time such Person becomes a Subsidiary (or is so merged or consolidated), provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary (or such merger or consolidation), as
the case may be, (ii) such Lien shall not apply to any other assets of the Company or any Subsidiary (other than improvements or accessions thereto and the proceeds thereof) and (iii) such Lien shall secure only
those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary (or is so merged or consolidated), as the case may be, and extensions, renewals and refinancings
thereof that do not increase the outstanding principal amount thereof except by an amount equal to any premium or other amount paid, and fees and expenses incurred, in connection with such extension, renewal or
refinancing;
(s) Liens on the net cash proceeds of any Acquisition Indebtedness held in escrow by a third party escrow
agent prior to the release thereof from escrow;
(t) any Lien on any asset of the Company or any Subsidiary existing on the Effective Date and set forth on
Schedule 6.02; provided that (i) such Lien shall not apply to any other asset of the Company or any Subsidiary (other than
improvements or accessions thereto and the proceeds thereof) and (ii) such Lien shall secure only those obligations that it secures on the Effective Date and extensions, renewals and refinancings thereof that do
not increase the outstanding principal amount thereof except by an amount equal to any premium or other amount paid, and fees and expenses incurred, in connection with such extension, renewal or refinancing;
(u) Liens in connection with Indebtedness permitted under Section 6.01(h);
(v) Liens
securing (or deemed to secure pursuant to the definition of the term) Securitization Transactions
permitted to be incurred pursuant to Section 6.01(k); provided that such Liens shall only extend to Securitization Receivables subject to such Securitization
Transaction, the Capital Securities in and assets of Securitization Subsidiaries and assets ancillary to any of the foregoing; and
(w) (v) other Liens (in addition to any Liens permitted pursuant to
clauses (a) through (uv) above) securing or deemed to exist in connection with Indebtedness or other
obligations; provided
that at the time of and after giving pro forma effect to the incurrence of any such Lien (or any Indebtedness or other obligations secured thereby), the sum, without duplication, of (i) the aggregate principal
amount of the outstanding Indebtedness or other obligations secured by Liens permitted by this clause (vw) and (ii)
the aggregate principal amount of the outstanding Indebtedness permitted by Section 6.01(ln) does not
exceed the greater of (A) 15% of Consolidated Net Tangible Assets and (B) US$200,000,000.
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SECTION 6.03. Restricted Payments. The Company shall not, and shall not permit any of its Subsidiaries to, make any Restricted Payment; provided that (a) the Company and its Subsidiaries may convert preferred stock into common stock and permit the holders of preferred stock of
the Company to convert such stock into common stock of the Company, (b) the Company and any Subsidiary may make Restricted Payments with respect to its Capital Securities payable solely in additional Capital
Securities in such Person permitted hereunder, (c) any Subsidiary may make Restricted Payments in respect of its Capital Securities, in each case ratably to the holders of such Capital Securities (or, if not
ratably, on a basis more favorable to the Company and the Subsidiaries) and (d) the Company and any Subsidiary may make other Restricted Payments so long as at the time of declaration thereof, and after giving pro
forma effect thereto as of such date of declaration, (i) no Default or Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with Section 6.08.
SECTION 6.04. Fundamental Changes; Business Activities.
(a) The Company shall not, and shall not permit any of its Subsidiaries to, merge, consolidate or amalgamate
with any other Person, or liquidate, wind-up or dissolve, except that:
(i) any Subsidiary of the Company may merge, consolidate or amalgamate with or into the
Company or any Subsidiary, provided that (A) in the case of any such transaction involving the Company, the Company shall be the
surviving or continuing Person, (B) in the case of any such transaction involving a Borrowing Subsidiary, such Borrowing Subsidiary (or, in the case of a merger, consolidation or amalgamation of such Borrowing
Subsidiary with or into the Company or another Borrowing Subsidiary, the Company or such other Borrowing Subsidiary) shall be the surviving or continuing Person and (C) in the case of any such transaction
involving a Subsidiary Guarantor, the surviving or continuing Person shall be a Subsidiary Guarantor (or, in the case of a merger, consolidation or amalgamation of such Subsidiary Guarantor with or into the
Company, the Company);
(ii) any Person (other than the Company or a Subsidiary) may merge, consolidate or
amalgamate with or into (A) the Company in a transaction in which the Company is the surviving or continuing Person or (B) any Subsidiary in a transaction in which such Subsidiary or a Person that becomes a
Subsidiary is the surviving or continuing Person, provided that in the case of any such transaction involving a Borrowing Subsidiary
or a Subsidiary Guarantor, such Borrowing Subsidiary or Subsidiary Guarantor, as the case may be, or a Person that becomes a Borrowing Subsidiary or a Subsidiary Guarantor, as applicable in accordance with the
provisions of this Agreement (and assumes the obligations of such Borrowing Subsidiary or Subsidiary Guarantor, as applicable, pursuant to an assumption agreement reasonably acceptable to the Administrative Agent
and provides such other certificates and opinions as shall be reasonably requested by the Administrative Agent), shall be the surviving or continuing Person;
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(iii) any Subsidiary (other than a Borrowing Subsidiary) may merge, consolidate or
amalgamate with or into any Person (other than the Company) in a transaction not prohibited hereunder in which, after giving effect to such transaction, the surviving or continuing Person is not a Subsidiary;
(iv) the GET Acquisition may be consummated; and
(v) any Subsidiary (other than a Borrowing Subsidiary) may liquidate, wind-up or dissolve
if the Company determines in good faith that such liquidation, winding-up or dissolution is not material to the Company and its Subsidiaries taken as a whole and is not materially disadvantageous to the Lenders.
(b) The Company shall not, and shall not permit any of its Subsidiaries to, sell, transfer, lease or
otherwise dispose of, directly or through any merger, consolidation or amalgamation and whether in one transaction or in a series of transactions, assets (including Capital Securities of Subsidiaries)
representing all or substantially all of the assets of the Company and its Subsidiaries (whether now owned or hereafter acquired), taken as a whole.
(c) The Company shall not, and shall not permit any of its Subsidiaries to, engage to any material extent
in any line of business other than the businesses engaged in on the Effective Date and businesses and other activities complementary, reasonably related or incidental thereto, including the business of the
Persons to be acquired in the GET Acquisition engaged in by the GET Seller and its subsidiaries on the Effective Date.
(d) The Company shall not permit any Borrowing Subsidiary to cease to be a wholly owned Subsidiary of the
Company.
SECTION 6.05. Transactions with Affiliates. The Company shall not, and
shall not permit any of its Subsidiaries to, enter into or cause, suffer or permit to exist any transaction, arrangement or contract with any Affiliate (other than the Company or any Subsidiary) that is on terms
materially less favorable to the Company or such Subsidiary than those that would prevail in an arm’s-length transaction with unrelated third parties, provided
that the foregoing shall not apply to (a) any Restricted Payment permitted by Section 6.03, (b) any investment in, or other transaction with, any joint venture to which the Company or any Subsidiary is a party, (c)
transactions pursuant to the GET Merger Agreement and the GET Separation Agreement, including the ancillary agreements referred to therein, (d) payments made and other transactions entered into in the ordinary
course of business with officers and directors of the Company or any Subsidiary, and consulting fees and expenses incurred in the ordinary course of business payable to former officers or directors of the Company
or any Subsidiary and (e) any other transaction (if part of a series of related transactions, together with such related transactions) involving consideration or value of less than US$5,000,000.
SECTION 6.06. Restrictive Agreements. The Company shall not, and shall not
permit any of its Subsidiaries to, enter into any agreement that restricts or imposes any condition upon (a) the ability of the Company or any Subsidiary to create,
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incur or permit to exist any Lien upon any of its assets to secure the Obligations or (b) the ability of any Subsidiary that is not a
Subsidiary Guarantor to pay dividends or make other distributions to the Company or any Subsidiary Guarantor, other than (i) restrictions and conditions contained in any Loan Document, (ii) restrictions and
conditions contained in the 2013 Note Indenture, as in effect on the Effective Date, or in definitive documents evidencing or governing any other Indebtedness of the Company or any Subsidiary, provided that such restrictions and conditions contained in definitive documents evidencing or governing any such other Indebtedness are not
materially less favorable to the interests of the Lenders than the restrictions and conditions contained in the 2013 Note Indenture, as in effect on the Effective Date, (iii) (A) restrictions and conditions
contained in any agreement evidencing or governing any GET Acquisition Indebtedness, provided that, in the good faith judgment of the
Company, such restrictions and conditions are on customary market terms for Indebtedness of such type and such restrictions and conditions would not reasonably be expected to impair in any material respect the
ability of the Company and the other Loan Parties to comply with their obligations under the Loan Documents, and amendments, extensions and renewals thereof (including any such extension or renewal arising as a
result of an extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case,
that the scope of any such restriction or condition shall not have been expanded as a result thereof, and (B) restrictions and conditions contained in any agreement evidencing or governing any other Indebtedness, provided that such restrictions and conditions are not materially less favorable than the restrictions and conditions contained in any
agreement referred to in clause (A) above, (iv) restrictions and conditions contained in the GET Merger Agreement and the GET Separation Agreement, including the ancillary agreements referred to therein, (v)
restrictions and conditions existing on the Effective Date and identified on Schedule 6.06 and amendments, extensions and renewals thereof (including any such extension or renewal arising as a result of an
extension, renewal or refinancing of any Indebtedness containing such restriction or condition), provided, in each case, that the scope
of any such restriction or condition shall not have been expanded as a result thereof, (vi) customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary, or a line of business or a division, that are applicable solely pending such sale, provided that such restrictions and conditions apply only to the Subsidiary, or the line of business or a division, that is to be sold and
such sale is permitted hereunder, (vii) restrictions and conditions contained in agreements evidencing or governing Indebtedness of Foreign Subsidiaries permitted by Section 6.01, provided that such prohibitions or restrictions apply only to Foreign Subsidiaries issuing or incurring such Indebtedness and their subsidiaries or any guarantor
thereof that is a Foreign Subsidiary, (viii) restrictions and conditions imposed on a Subsidiary (and any of its subsidiaries) and existing at the time it became a Subsidiary, if such restrictions and conditions
were not created in connection with or in anticipation of the transaction or series or transactions pursuant to which such it became a Subsidiary and only to the extent applying to such Subsidiary and its
subsidiaries, and amendments, extensions and renewals thereof (including any such extension or renewal arising as a result of an extension, renewal or refinancing of any Indebtedness containing such prohibition
or restriction), provided, in each case, that the scope of any such prohibition or restriction shall not have been expanded as a
result thereof, (ix) in the case of any Subsidiary that is not a wholly owned Subsidiary or the
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Capital Securities in any Person that is not a Subsidiary, restrictions and conditions imposed by the organizational documents of
such Subsidiary or such other Person or any related joint venture, shareholders’ or similar agreement, provided, in each case, that such
restrictions and conditions apply only to such Subsidiary and to any Capital Securities in such Subsidiary or to the Capital Securities in such other Person, as applicable, (x) restrictions and conditions under
arrangements with any Governmental Authority imposed on any Foreign Subsidiary in connection with government grants, financial aid, subsidies, tax holidays or other similar benefits or economic incentives, provided that such restrictions and conditions apply only to such Foreign Subsidiary and its subsidiaries, (xi) restrictions and conditions
existing under or by reason of any applicable law or any applicable rule, regulation, order, license, permit, grant or similar restriction, (xii) in the case of clause (a) above, restrictions and conditions
contained in agreements evidencing or governing Indebtedness or other obligations secured by Liens permitted by Sections 6.02(b)(ii), 6.02(g), 6.02(h), 6.02(p), 6.02(q), 6.02(r), 6.02(s) and 6.02(u), in each case,
if such restrictions or conditions apply only to the assets subject to such Liens, (xiii) in the case of clause (a) above, customary provisions in leases and other contracts restricting the assignment thereof and
customary restrictions in respect of intellectual property contained in licenses or sublicenses of, or other grants of rights to use or exploit, such intellectual property, (xiv) restrictions on cash or deposits or
net worth imposed by customers, suppliers or landlords under agreements entered into in the ordinary course of business and, (xv) restrictions
and conditions in any agreement or instrument evidencing or governing any other Indebtedness of the Company or any Subsidiary, provided that (A) in the good faith judgment the Company, such restrictions and conditions are on
customary market terms for Indebtedness of such type and such restrictions and conditions would not reasonably be expected to impair in any material respect the ability of the Company and the other Loan Parties
to comply with their obligations under the Loan Documents and (B) if such restrictions and conditions restrict Liens on all or substantially all of the assets of the Company and Designated Subsidiaries, the applicable agreements shall not restrict the
Company and the Designated Subsidiaries from creating, incurring or permitting to exist Liens upon any of their assets to secure any Obligations so long as the aggregate principal amount of any Indebtedness so
secured does not, at any time, exceed the amount equal to the sum of the aggregate amount of the Commitments in effect at such time (or, if the Revolving Commitments shall have terminated, the aggregate amount
thereof most recently in effect) and the aggregate principal amount of the Term Loans outstanding at such time and (xvi) in connection with any Securitization Transaction, restrictions and conditions imposed on the
Securitization Receivables subject thereto, any Securitization Subsidiary, the Capital Securities in or assets of any Securitization Subsidiary or any assets ancillary to any of the foregoing.
SECTION 6.07. Fiscal Year. Neither the Company nor any of its Subsidiaries
shall change its Fiscal Year to end on a date other than December 31.
SECTION 6.08. Financial Covenants.
(a) Interest Coverage
Ratio. The Company shall not permit the Interest Coverage Ratio for any Computation Period to be less than 3.00 to 1.00.
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(b) Leverage Ratio. The
Company shall not permit the Leverage Ratio as of the last day of any Computation Period to exceed 3.25 to 1.00; provided that in the
event that the GET Acquisition Closing Date shall occur or the Company or any Subsidiary shall complete (x)
any other Material Acquisition (other than the GET Acquisition) in which the cash consideration (including any
repayment of existing Indebtedness of the Persons so acquired) paid by it exceeds US$500,000,000 or (y) the Nordco Acquisition, the Company may, by a notice delivered to the Administrative Agent (which shall furnish a copy thereof to each Lender) (provided that no such notice from the Company shall be required in respect of the GET
Acquisition), increase the maximum Leverage Ratio permitted under this Section to (i) 3.75 to 1.00 at the end of the Fiscal Quarter during which the GET Acquisition Closing Date shall have occurred or such
other Material Acquisition or the Nordco Acquisition, as applicable, is consummated and at the end of each of the three Fiscal Quarters immediately following such Fiscal Quarter and (ii) 3.50 to 1.00
at the end of each of the fourth and fifth full Fiscal Quarters after the GET Acquisition Closing Date or the date such other Material Acquisition or the Nordco Acquisition, as applicable, is consummated.
SECTION 6.09. Anti-Corruption Laws. No Borrower will request any Loan or Letter of Credit, and no Borrower will use, and each Borrower shall
procure that its subsidiaries shall not use, the proceeds of any Loan or Letter of Credit (a) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything
else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any
Sanctioned Country, or (c) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE VII
Events of Default
SECTION 7.01. Defaults.
If any of the following events (“Events of Default”) shall occur:
(a) Non-Payment of the Loans, Etc.
Default in the payment when due of the principal of any Loan, whether at the due date thereof or at a date fixed for prepayment or otherwise, or any reimbursement obligation in respect of any LC Disbursement; or
default, and continuance thereof for five Business Days, in the payment when due of any interest, fee or other amount (other than principal or any reimbursement obligation in respect of an LC Disbursement)
payable by the Company or any Borrowing Subsidiary hereunder or by any Loan Party under any other Loan Document;
(b) Non-Payment or Default as to Other
Indebtedness. Any default or failure to perform any term, provision or condition shall occur, or any other event shall occur or condition exist, under the terms applicable to any Material
Indebtedness and such default, failure, event or condition shall (i) consist of the failure to make any payment (whether of principal or interest and regardless of amount) in respect of such Material
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Indebtedness when due, whether by acceleration or otherwise (but after giving effect to any grace period applicable thereto), or (ii)
accelerate the maturity of such Material Indebtedness or permit (with or without the giving of notice, but after giving effect to any grace period applicable thereto) the holder or holders thereof, or any trustee
or agent for such holder or holders (or, in the case of any Hedging Agreement, the applicable counterparty), to cause such Material Indebtedness to become due and payable (or require the Company or any Subsidiary
to prepay, purchase, redeem or defease such Material Indebtedness or, in the case of any Hedging Agreement, to cause the termination thereof) prior to its expressed maturity; provided that that this paragraph (b) shall not apply to (i) any redemption, repurchase, conversion or settlement in respect of Convertible Indebtedness pursuant to
its terms (other than any right to convert such Indebtedness into cash that is triggered by an event of default, a change of control or a similar event, however denominated), (ii) any secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of, or any casualty or condemnation with respect to, assets securing such Indebtedness, (iii) any prepayment, repurchase, redemption or defeasance of any
Acquisition Indebtedness if the related Acquisition is not consummated, (iv) any Indebtedness that becomes due as a result of a voluntary prepayment, repurchase, redemption or defeasance thereof, or any refinancing
thereof, permitted under this Agreement or (v) in the case of any Hedging Agreement, termination events or equivalent events pursuant to the terms of such Hedging Agreement not arising as a result of a default by
the Company or any Subsidiary thereunder;
(c) Non-Compliance with Loan Documents.
(i) Failure by any Loan Party to comply with or to perform any covenant set forth in Section 5.02(a), 5.06 (as to the existence of any Borrower) or Article VI or (ii) failure by any Loan Party to comply with or
to perform any other provision of this Agreement or any other Loan Document (and not constituting an Event of Default under any other provision of this Section 7.01) and continuance of such failure described in
this clause (ii) for 45 days after the earlier of the receipt by the Company of notice from the Administrative Agent and actual knowledge thereof by a Senior Officer of the Company;
(d) Representations
or Warranties. Any representation or warranty made or deemed made by or on behalf of any Loan Party herein or in any other
Loan Document, or in any certificate, financial statement, report, notice or other writing furnished by or on behalf of any Loan Party to the Administrative Agent, any Lender or any Issuing Bank in connection with
any of the Loan Documents shall prove to be untrue in any material respect;
(e) Pension Plans. An ERISA Event occurs which has resulted or would reasonably be expected to result in liability of the Company or any member of the ERISA Group
under Title IV of ERISA to a Pension Plan or the PBGC in an aggregate amount in excess of US$100,000,000, or the Company or any member of the ERISA Group fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan, where the aggregate amount of unamortized withdrawal liability is in
excess of US$100,000,000;
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(f) Judgments. Final judgments which exceed an aggregate of US$100,000,000 (other than any such judgment covered by insurance (other than under a self-insurance
program) provided by a financially sound insurer to the extent a claim therefor has been made in writing and liability therefor has not been denied by the insurer) shall be rendered against the Company or any of
its Subsidiaries and shall not have been paid, discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgments;
(g) Invalidity of Loan
Documents, Etc. Any Loan Document shall cease to be in full force and effect (other than in accordance with its terms); or any
Loan Party (or any Person by, through or on behalf of any Loan Party) shall contest in any manner the validity, binding nature or enforceability of any Loan Document; or the Parent Guarantee or any other Guarantee
purported to be created under any Loan Document shall cease to be in full force or effect (other than in accordance with its terms or, in the case of any Guarantee provided by any Subsidiary Guarantor, as a result
of the release thereof as provided in Section 10.14) or any action shall be taken to discontinue or to assert the invalidity, nonbinding nature or unenforceability thereof, or any Loan Party shall deny that it has
any further liability thereunder, or shall give notice to such effect;
(h) Change of Control. A
Change of Control shall occur; or
(i) Bankruptcy,
Insolvency, Etc. Any Borrower or any Material Subsidiary becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or any Borrower or any Material Subsidiary applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for such
Borrower or such Material Subsidiary or any property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for any Borrower or any Material Subsidiary or for a substantial part of the property of any thereof and is not discharged within 60 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding (other than, in the case of any Material Subsidiary that is not a Borrower, a
dissolution or liquidation permitted by Section 6.04(a)(v)), is commenced in respect of any Borrower or any Material Subsidiary, and if such case or proceeding is not commenced by such Borrower or such Material
Subsidiary, it is consented to or acquiesced in by such Borrower or such Material Subsidiary, or remains for 60 days undismissed; or any Borrower or any Material Subsidiary takes any action to authorize, or in
furtherance of, any of the foregoing;
then, and in every such event (other than an event with respect to the Company described in paragraph (i) of this Section), and at
any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of (i) prior to the end of the Delayed Draw Certain Funds Period, (x) in the case of any Event of Default
under Section 7.01(a) (with respect to the Delayed Draw Term Facility only) or 7.01(i) (with respect to the Company only) or any Event of Default under Section 7.01(c)(i) arising from any failure by the Company or
any Subsidiary to observe or perform the covenants set forth in Section 6.04(a) or 6.04(b), the Required Lenders or (y) in the case of any other Event of
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Default, the Majority in Interest of the Revolving Lenders and the Refinancing Term Lenders (taken together as one Class for purposes
of this clause (y)) or (ii) after the end of the Delayed Draw Certain Funds Period, the Required Lenders shall, by notice to the Company, take any or all of the following actions, at the same or different times:
(A) terminate the Revolving Commitments and, subject to Section 7.02, the Delayed Draw Term Commitments, and thereupon the Revolving Commitments and/or the Delayed Draw Term Commitments shall terminate immediately,
(B) declare the Loans then outstanding to be due and payable in whole (or in part (but ratably as among the Classes of Loans and the Loans of each Class at the time outstanding), in which case any principal not so
declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and
other obligations of the Company and each Borrowing Subsidiary hereunder, shall become due and payable immediately, and (C) require the deposit of cash collateral in respect of LC Exposure as provided in Section
2.20(n), in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company and each Borrowing Subsidiary to the extent permitted by applicable law; and in
the case of any event with respect to the Company described in paragraph (i) of this Section, the Revolving Commitments and the Delayed Draw Term Commitments shall automatically terminate, the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Company and each Borrowing Subsidiary hereunder, shall immediately and automatically become due and payable
and the deposit of such cash collateral in respect of LC Exposure shall immediately and automatically become due, in each case without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and each Borrowing Subsidiary to the extent permitted by applicable law.
SECTION 7.02. Delayed Draw Certain Funds Period.
During the Delayed Draw Certain Funds Period, and notwithstanding (a) any failure by the Company or any Subsidiary to observe or perform the covenants set forth in Article V or VI hereof (other than the
covenants set forth in Section 6.04(a) or 6.04(b)), (b) the occurrence of any Default or Event of Default (other than any Event of Default that has occurred and is continuing under Section 7.01(a) (with respect to
the Delayed Draw Term Facility only) or 7.01(i) (with respect to the Company only) or any Event of Default that has occurred and is continuing under Section 7.01(c)(i) arising from any failure by the Company or any
Subsidiary to observe or perform the covenants set forth in Section 6.04(a) or 6.04(b)) or (c) subject to the parenthetical provisions in clauses (a) and (b) above, any provision to the contrary in this Agreement
or any other Loan Document, neither the Administrative Agent nor any Delayed Draw Term Lender shall be entitled to (i) rescind, terminate or cancel the Delayed Draw Term Facility or any of the Delayed Draw Term
Commitments hereunder, or exercise any right or remedy under this Agreement or any other Loan Document in respect of the Delayed Draw Term Facility, to the extent that to do so would prevent, limit or delay the
making by any Delayed Draw Term Lender of its Delayed Draw Term Loan on the Delayed Draw Term Funding Date, (ii) in the case of any Delayed Draw Term Lender, refuse to make its Delayed Draw Term Loan on the Delayed
Draw Term Funding Date or (iii) in the case of any Delayed Draw Term Lender, exercise any right of set-off or counterclaim in respect of its Delayed Draw Term Loan to the extent that to do
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so would prevent, limit or delay the making of its Delayed Draw Term Loan on the Delayed Draw Term Funding Date; provided that, for the avoidance of doubt, the borrowing of the Delayed Draw Term Loans on the Delayed Draw Term Funding Date shall be
subject to the satisfaction (or waiver in accordance with Section 10.02) of the conditions precedent set forth in Section 4.02. For the avoidance of doubt, (x) the rights, remedies and entitlements of the
Administrative Agent, the Arrangers and the Delayed Draw Term Lenders with respect to any condition precedent set forth in Section 4.02 shall not be limited in the event that any such condition precedent is not
satisfied on the Delayed Draw Term Funding Date, (y) immediately after the end of the Delayed Draw Certain Funds Period, all of the rights, remedies and entitlements of the Administrative Agent and the Delayed Draw
Term Lenders under this Agreement and the other Loan Documents in respect of the Delayed Draw Term Facility shall be available and may be exercised by them notwithstanding that such rights, remedies or entitlements
were not available prior to such time as a result of the provisions of this Section and (z) nothing in this Section shall affect the rights, remedies or entitlements (or the ability to exercise the same) of (i) the
Revolving Lenders or the Refinancing Term Lenders or, insofar as such rights, remedies or entitlements relate to the Revolving Facility or the Refinancing Term Facility, the Administrative Agent, including any such
rights, remedies or entitlements set forth in Section 7.01, or (ii) the Administrative Agent, the Arrangers or the Delayed Draw Term Lenders with respect to any Event of Default under Section 7.01(a) (with respect
to the Delayed Draw Term Facility only) or 7.01(i) (with respect to the Company only) or any Event of Default under Section 7.01(c)(i) arising from any failure by the Company or any Subsidiary to observe or perform
the covenants set forth in Section 6.04(a) or 6.04(b), including any such rights, remedies or entitlements set forth in Section 7.01.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent in
the heading of this Agreement and its successors to serve as Administrative Agent under this Agreement and the other Loan Documents, and authorizes the Administrative Agent to take such actions and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as
a Lender or an Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to,
own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company 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 or the Issuing Banks.
The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan
Documents with respect to the Administrative Agent,
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and the Administrative Agent’s duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing (and it is understood and agreed that the use of the term
“agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties), (b) the
Administrative Agent shall not have any duty to take any discretionary action or to exercise any discretionary power, except discretionary rights and powers expressly contemplated by the 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 necessary, or as the Administrative Agent shall believe in
good faith to be necessary, under the circumstances as provided in the Loan Documents), provided that the Administrative Agent shall not
be required to take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law, and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and the Administrative Agent shall not be liable for the failure to disclose, any information relating to the Company, any Subsidiary or any
other Affiliate thereof 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 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 to be necessary, under the circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a
court of competent jurisdiction by a final and nonappealable judgment). The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that it is a
“notice of default”) is given to the Administrative Agent by the Company, any Lender or any Issuing Bank, and 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 any Loan Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, including
with respect to the existence and the aggregate amount of any Designated Cash Management Obligations or Designated Hedge Obligations at any time, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that
expressly refers to the matters described therein being acceptable or satisfactory to the Administrative Agent. The Administrative Agent neither warrants nor accepts responsibility for, and shall not have any
liability with respect to, the administration, submission or any other matter related to
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the rates in the definition of the term “Adjusted LIBO Rate” (or any component thereof) or with respect to any comparable or
successor rate thereto, or replacement rate therefor (except such as shall result from the gross negligence or willful misconduct of the Administrative Agent as determined by a court of competent jurisdiction in a
final and nonappealable judgment).
The Administrative Agent shall be entitled to rely, 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 (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or
authenticator thereof). The Administrative Agent also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by
the proper Person (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and may act upon any such statement prior to
receipt of written confirmation thereof. In determining compliance with any condition hereunder to the making of a Loan or the issuance, amendment, renewal or extension of any Letter of Credit that by its terms
must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Bank, as applicable, unless the
Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank, as applicable, prior to the making of such Loan or such event as to such Letter of Credit. The Administrative
Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it with reasonable care, 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.
For all purposes of this Agreement and the other Loan Documents:
(a) Each Lender and each Issuing
Bank hereby agrees that (i) if the Administrative Agent notifies such Lender or Issuing Bank that the Administrative Agent has determined in its sole discretion that any funds received by such
Lender or Issuing Bank from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise
erroneously or mistakenly received by, such Lender or Issuing Bank (whether or not known to such Lender or Issuing Bank (whether as a payment, prepayment or repayment of principal,
reimbursement obligation, interest, fees or otherwise), individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender
or Issuing Bank shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the
amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in
respect of each day from and including the date such
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Erroneous
Payment (or portion thereof) was received by such Lender or Issuing Bank to the date such amount is repaid to the Administrative
Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation from time to time in effect, and (ii) such Lender or Issuing Bank shall not assert any right or claim to the Erroneous Payment, and hereby waives any claim, counterclaim, defense or right
of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any
Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any
Lender or Issuing Bank under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately
preceding clause (a), each Lender and each Issuing Bank hereby further agrees that if it receives an Erroneous Payment from the Administrative Agent (or any of its Affiliates) (i) that is in
an amount different than (other than a de minimis difference), or on a different date from, that specified in a notice of payment
sent by the Administrative Agent (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (ii) that was not preceded or accompanied by an
Erroneous Payment Notice, it shall be on notice that, in each such case, an error has been made with respect to such Erroneous Payment. Each Lender and each Issuing Bank further agrees that, in each such
case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender or
Issuing Bank shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business
Day thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) that was received by such Lender or Issuing Bank to the date such amount is repaid to the
Administrative Agent in same day funds at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(c) The Borrowers and each other
Loan Party hereby agree that (i) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender or Issuing Bank that has received such Erroneous Payment (or portion
thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender or Issuing Bank with respect
to such amount and (ii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower or any other Loan Party.
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(d) Each party’s obligations under
the immediately preceding clauses (a), (b) and (c) and this clause (d) shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the
replacement of, a Lender or Issuing Bank, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
The Administrative Agent may perform any of and all 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 of and all their duties and exercise
their rights and powers 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 the Administrative Agent. The Administrative Agent
shall not be responsible for the negligence or misconduct of any of its sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the
Administrative Agent acted with bad faith, gross negligence or willful misconduct in the selection of such sub-agents.
Subject to the terms of this paragraph, the Administrative Agent may resign at any time from its capacity as such.
In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks and the Company. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, subject to the consent of the Company (not to be unreasonably withheld, conditioned or delayed) so long as no Event of Default under Section 7.01(a) or 7.01(i) shall have
occurred and be continuing, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. If the Person serving as the Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the
extent permitted by applicable law, by notice in writing to the Company and such Person remove such Person as the Administrative Agent and, subject to the consent of the Company (not to be unreasonably withheld,
conditioned or delayed) so long as no Event of Default under Section 7.01(a) or 7.01(i) shall have occurred and be continuing, appoint a successor. Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent, and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Company to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed by the Company and such successor. Notwithstanding the foregoing, in the event no successor
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Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Company, whereupon, on
the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents, and (b)
the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, provided
that (i) all payments required to be made hereunder or under any other Loan Document to the retiring Administrative Agent for the account of any Person other than the retiring Administrative Agent shall be made
directly to such Person, (ii) all notices and other communications required or contemplated to be given or made to the retiring Administrative Agent shall also directly be given or made to each Lender and each
Issuing Bank and (iii) the retiring Administrative Agent may continue to hold, on behalf of the Revolving Lenders and the Issuing Banks, any cash collateral received by it pursuant to Section 2.20(n). Following the
effectiveness of the Administrative Agent’s resignation or removal from its capacity as such, the provisions of this Article and Section 10.03, as well as any exculpatory, reimbursement and indemnification
provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring or removed 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 it was acting as the Administrative Agent or while holding cash collateral as contemplated by the immediately preceding sentence.
Each Lender and Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative
Agent, the Arrangers or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, 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 Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, the Arrangers or any other Lender
or Issuing Bank, or any of the Related Parties of any of the foregoing, 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.
Each Lender, by delivering its signature page to this Agreement, or delivering its signature page to an Assignment
and Assumption or any other document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document
required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the Delayed Draw Term Funding Date.
In case of the pendency of any proceeding with respect to any Loan Party under any United States (Federal or
state) or foreign bankruptcy, insolvency, receivership,
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winding-up or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan
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 the Company or any Borrowing Subsidiary) shall be
entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect
of the Loans, Letters of Credit and all other 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 and the
Administrative Agent (including any claim under Sections 2.12, 2.13, 2.14, 10.03 and 10.18) allowed in such judicial proceeding; and
(b) 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 (and shall be deemed, by its acceptance of the benefits of the Guarantees of the Obligations provided under the Loan Documents, to have been authorized by each other holder of any
Obligations) 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 or other holders of any
Obligations, 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 10.03).
Except with respect to the exercise of setoff rights of any Lender in accordance with Section 10.08 (or any
similar provision in any other Loan Document) or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no holder of any Obligations (other than the Administrative Agent) shall have
any right individually to enforce any Guarantee of the Obligations provided under the Loan Documents, 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 holders of the Obligations in accordance with the terms thereof. In furtherance of the foregoing and not in limitation thereof, no agreement relating to any
Designated Cash Management Obligations or Designated Hedge Obligations will create (or be deemed to create) in favor of any holder of Obligations that is a party thereto any rights in connection with the management
or release of the obligations of any Loan Party under any Loan Document.
Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to
the USA PATRIOT Act or the regulations thereunder, including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Corruption
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Laws, including any programs involving any of the following items relating to or in connection with any of the Loan Parties, their
Affiliates or their agents, the Loan Documents or the transactions hereunder or contemplated hereby: (a) any identity verification procedures, (b) any recordkeeping, (c) comparisons with government lists, (d)
customer notices or (e) other procedures required under the CIP Regulations or such other laws.
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 Arrangers and their respective
Affiliates, and not, for the avoidance of doubt, to or for the benefit of any 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 29
CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Employee Benefit Plans in connection with the Loans 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 Loans, 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 Loans, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans, 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 Loans, the Commitments
and this Agreement or (iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent and such Lender.
In addition, at any time when regulation 29 C.F.R. Section 2510.3-21 or its successor is applicable, unless clause
(i) of the immediately preceding paragraph is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in clause (iv) of the immediately preceding
paragraph, such Lender further (a) represents and warrants, as of the date such Person became a Lender party hereto, to and (b) 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 Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Loan
Party, that: (i) none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary
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with respect to 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), (ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into,
participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment
adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least US$50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E), (iii) the Person
making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of
evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations), (iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation
in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is
responsible for exercising independent judgment in evaluating the transactions hereunder and (v) no fee or other compensation is being paid directly to the Administrative Agent or any Arranger or any of their
respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.
The Administrative Agent and the Arrangers hereby inform the Lenders that each such Person is not undertaking to
provide impartial 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 in that
such Person or an Affiliate thereof (a) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (b) may recognize a gain if it extended the Loans or the Commitments for
an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (c) may receive fees or other payments in connection with the Transactions, the Loan Documents or
otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent fees, utilization fees, minimum usage 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.
Notwithstanding anything herein to the contrary, none of the Arrangers, the Syndication Agents or the
Documentation Agents shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as the Administrative Agent, a Lender or an Issuing Bank), but all
such Persons shall have the benefit of the indemnities and exculpatory provisions provided for hereunder or thereunder.
To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender
an amount equivalent to any applicable
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withholding Tax. Without limiting or expanding the provisions of Section 2.14, each Lender shall indemnify and hold harmless the
Administrative Agent against, within 10 days after written demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any
counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly
withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender
failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). 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 this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph. For the avoidance of doubt, a “Lender” shall, for purposes of this paragraph,
include any Issuing Bank. The agreements in this paragraph shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination
of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders and, except
solely to the extent of the Company’s express rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Loan Parties shall have any rights as a third party beneficiary of
any such provisions.
ARTICLE IX
Parent Guarantee
SECTION 9.01. Parent Guarantee. For valuable consideration, the receipt of
which is hereby acknowledged, and to induce the Revolving Lenders and the Swingline Lender to make Revolving Loans or Swingline Loans, as the case may be, to each Borrowing Subsidiary and the Issuing Banks to
issue, amend, renew or extend any Letters of Credit for the account of any Borrowing Subsidiary (and the Revolving Lenders to participate in such Letters of Credit as set forth herein), the Company hereby
absolutely and unconditionally guarantees prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Loan Document
Obligations of each Borrowing Subsidiary, whether for principal, interest (including interest accruing after the commencement of any bankruptcy, insolvency or similar proceeding, whether or not allowed as a claim
in such proceeding), fees, expenses or otherwise (collectively, the “Guaranteed Borrowing Subsidiary Obligations”, and each such Borrowing Subsidiary being an “Obligor” and collectively,
the “Obligors”).
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SECTION 9.02. Waivers. The Company waives, to the extent permitted by applicable law, notice of the acceptance of this Parent Guarantee and of the
extension or continuation of the Guaranteed Borrowing Subsidiary Obligations or any part thereof. The Company further waives, to the extent permitted by applicable law, presentment, protest, notice of notices
delivered or demand made on any Obligor or action or delinquency in respect of the Guaranteed Borrowing Subsidiary Obligations or any part thereof, including any right to require the Administrative Agent, the
Lenders, the Issuing Banks or any other holder of any Guaranteed Borrowing Subsidiary Obligations to sue any Obligor, any other guarantor or any other Person obligated with respect to the Guaranteed Borrowing
Subsidiary Obligations or any part thereof. The Administrative Agent, the Lenders, the Issuing Banks and the other holders of any Guaranteed Borrowing Subsidiary Obligations shall have no obligation to disclose or
discuss with the Company their assessments of the financial condition of the Obligors.
SECTION 9.03. Guarantee Absolute. This Parent Guarantee is a guarantee
of payment and not of collection, is intended to have the same effect as if the Company were a primary obligor of the Guaranteed Borrowing Subsidiary Obligations and not merely a surety, and the validity and
enforceability of this Parent Guarantee shall be absolute and unconditional irrespective of, and shall not be impaired or affected by any of the following: (a) any extension, modification or renewal of, or
indulgence with respect to, or substitutions for, the Guaranteed Borrowing Subsidiary Obligations or any part thereof or any agreement relating thereto at any time, (b) any failure or omission to enforce any right,
power or remedy with respect to the Guaranteed Borrowing Subsidiary Obligations or any part thereof or any agreement relating thereto, (c) any waiver of any right, power or remedy with respect to the Guaranteed
Borrowing Subsidiary Obligations or any part thereof or any agreement relating thereto, (d) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of
any other guarantees with respect to the Guaranteed Borrowing Subsidiary Obligations or any part thereof, or any other obligation of any Person with respect to the Guaranteed Borrowing Subsidiary Obligations or any
part thereof, (e) the enforceability or validity of the Guaranteed Borrowing Subsidiary Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto, (f) the
application of payments received from any source to the payment of obligations other than the Guaranteed Borrowing Subsidiary Obligations, any part thereof or amounts which are not covered by this Parent Guarantee
even though the Administrative Agent, the Lenders and the Issuing Banks might lawfully have elected to apply such payments to any part or all of the Guaranteed Borrowing Subsidiary Obligations or to amounts which
are not covered by this Parent Guarantee, (g) any change in the ownership of any Obligor or the insolvency, bankruptcy or any other change in the legal status of any Obligor, (h) the change in or the imposition of
any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Guaranteed Borrowing Subsidiary Obligations,
(i) the failure of the Company or any Obligor to maintain in full force, validity or effect or to obtain or renew when required all governmental and other approvals, licenses or consents required in connection with
the Guaranteed Borrowing Subsidiary Obligations or this Parent Guarantee, or to take any other action required in connection with the performance of all obligations pursuant to the
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Guaranteed Borrowing Subsidiary Obligations or this Parent Guarantee, (j) the existence of any claim, setoff or other rights which
the Company may have at any time against any Obligor, or any other Person in connection herewith or an unrelated transaction, (k) the Administrative Agent’s, any Lender’s or any Issuing Bank’s election, in any case
or proceeding instituted under chapter 11 of the United States Bankruptcy Code, of the application of section 1111(b)(2) of the United States Bankruptcy Code, (l) any borrowing, use of cash collateral, or grant of
a security interest by the Company, as debtor in possession, under section 363 or 364 of the United States Bankruptcy Code, (m) the disallowance of all or any portion any Person’s claims for repayment of the
Guaranteed Borrowing Subsidiary Obligations under section 502 or 506 of the United States Bankruptcy Code, or (n) any other circumstances, whether or not similar to any of the foregoing, which could constitute a
defense to a guarantor, in each case, whether or not the Company shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (n) of this Section. It is agreed that the
Company’s liability hereunder is several and independent of any other guarantees or other obligations at any time in effect with respect to the Guaranteed Borrowing Subsidiary Obligations or any part thereof and
that the Company’s liability hereunder may be enforced regardless of the existence, validity, enforcement or non-enforcement of any such other guarantees or other obligations or any provision of any applicable law
or regulation purporting to prohibit payment by any Obligor of the Guaranteed Borrowing Subsidiary Obligations in the manner agreed upon between the Obligor and the Administrative Agent, the Lenders, the Issuing
Banks and other holders of any Guaranteed Borrowing Subsidiary Obligations.
SECTION 9.04. Acceleration. The Company agrees that, as between the Company on the one hand and the Lenders, the Issuing Banks, the Administrative
Agent and the other holders of Guaranteed Borrowing Subsidiary Obligations, on the other hand, the obligations of each Obligor guaranteed under this Article IX may be declared to be forthwith due and payable, or
may be deemed automatically to have been accelerated, as provided in Section 7.01 for purposes of this Article IX, notwithstanding any stay, injunction or other prohibition (whether in a bankruptcy proceeding
affecting such Obligor or otherwise) preventing such declaration as against such Obligor and that, in the event of such declaration or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes of this Article IX.
SECTION 9.05. Marshaling; Reinstatement. None of the Lenders, the Issuing
Banks, the Administrative Agent or any other holder of Guaranteed Borrowing Subsidiary Obligations, or any Person acting for or on behalf of any of the foregoing, shall have any obligation to marshal any assets in
favor of the Company or against or in payment of any or all of the Guaranteed Borrowing Subsidiary Obligations. If the Company or any Obligor makes a payment or payments to any Lender, any Issuing Bank, the
Administrative Agent or any other holder of any Guaranteed Borrowing Subsidiary Obligation, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside and/or required to be repaid to such Borrower, the Company or any other Person, or their respective estates, trustees, receivers or any other party, including, without limitation, the Company, under any
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bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, the part of
the Guaranteed Borrowing Subsidiary Obligations which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the time immediately preceding such initial
payment, reduction or satisfaction.
SECTION 9.06. Subrogation. Until the irrevocable payment in full in cash
of the Loan Document Obligations (other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as to which no claim has been made), the termination of all
commitments which could give rise to any Guaranteed Borrowing Subsidiary Obligation and no Letter of Credit shall be outstanding, the Company shall not exercise any right of subrogation with respect to the
Guaranteed Borrowing Subsidiary Obligations, and hereby waives, to the extent permitted by applicable law, any right to enforce any remedy which the Administrative Agent, the Lenders, the Issuing Banks or any other
holder of any Guaranteed Borrowing Subsidiary Obligations now has or may hereafter have against the Company, any endorser or any other guarantor of all or any part of the Guaranteed Borrowing Subsidiary
Obligations, and the Company hereby waives, to the extent permitted by applicable law, any other liability of any Obligor to the Administrative Agent, the Lenders, the Issuing Banks and/or any other holder of any
Guaranteed Borrowing Subsidiary Obligations.
SECTION 9.07. Termination Date. Subject to Section 9.05, this Parent Guarantee shall continue in effect until the later of (a) the Revolving
Maturity Date and (b) the date on which this Agreement has otherwise expired or been terminated in accordance with its terms and all of the Guaranteed Borrowing Subsidiary Obligations have been paid in full in cash
(other than (x) Designated Cash Management Obligations and Designated Hedge Obligations and (y) contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as to which no
claim has been made, it being understood, however, that this Parent Guarantee shall remain in effect as to such obligations if an Event of Default shall have occurred and the other Guaranteed Borrowing Subsidiary
Obligations shall have been discharged through an exercise of remedies).
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. (a) Except in the case of notices and other communications expressly
permitted to be given by telephone and subject to paragraph (b) of this Section, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by fax, as follows:
(i) if to the Company or any Borrowing Subsidiary, to (or to it in care of) Westinghouse
Air Brake Technologies Corporation, 1001 Air Brake Avenue, Wilmerding, PA 15148, Attention of Patrick Dugan (Fax No. (412) 825-1156,
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Email: pdugan@wabtec.com), with a copy to the attention of David DeNinno (Email: ddeninno@wabtec.com);
(ii) if to the Administrative Agent, to PNC Bank, National Association, The PNC Financial
Services Group, First Side Center, 500 First Avenue, Pittsburgh, PA 15219, Attention of Cheryl Thon (Fax No. (412) 762-8672, Email: cheryl.thon@pncbank.com);
(iii) if to the Swingline Lender, to PNC Bank, National Association, The PNC Financial
Services Group, First Side Center, 500 First Avenue, Pittsburgh, PA 15219, Attention of Cheryl Thon (Fax No. (412) 762-8672, Email: cheryl.thon@pncbank.com);
(iv) if to any Issuing Bank, to it at its address (or fax number) most recently specified
by it in a notice delivered to the Administrative Agent and the Company (or, in the absence of any such notice, to the address (or fax number) set forth in the Administrative Questionnaire of the Lender that is
serving as such Issuing Bank or is an Affiliate thereof); and
(v) if to any Lender, to it at its address (or fax number) set forth in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to
have been given when received; notices sent by fax shall be deemed to have been given when sent (but if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient); and notices delivered through electronic communications to the extent provided in paragraph (b) of this Section shall be effective as provided in such
paragraph.
(b) Notices and other communications to the Administrative Agent, the Lenders and Issuing Banks hereunder may
be delivered or furnished by electronic communications (including email and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Any notices or other communications to the Administrative Agent, the Company or any Borrowing
Subsidiary may be delivered or furnished by electronic communications pursuant to procedures approved in advance by the recipient thereof; provided
that approval of such procedures may be limited or rescinded by such Person by notice to each other such Person. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other
written acknowledgment); provided that if such notice or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the opening
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of business on the next business day for the recipient; and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and
identifying the website address therefor.
(c) Any party hereto may change its address, fax number or email address for notices and other
communications hereunder by notice to the other parties hereto.
(d) The Administrative Agent may, but shall not be obligated to, make any Communication by posting such
Communication on Debt Domain, IntraLinks, SyndTrak or a similar electronic transmission system (the “Platform”). The Platform is
provided “as is” and “as available”. Neither the Administrative Agent nor any of its Related Parties warrants, or shall be deemed to warrant, the adequacy of the Platform, and the Administrative Agent expressly
disclaims liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose,
non-infringement of third-party rights or freedom from viruses or other code defects, is made, or shall be deemed to be made, by the Administrative Agent or any of its Related Parties in connection with the
Communications or the Platform. In no event shall the Administrative Agent or any of its Related Parties have any liability to any Loan Party, any Lender, any Issuing Bank or any other Person for damages of any
kind (whether in tort, contract or otherwise), arising out of any Loan Party’s or the Administrative Agent’s transmission of Communications through the Platform except, in the case of direct damages of any Loan
Party (but not any indirect, special, incidental or consequential damages), to the extent arising from the Administrative Agent’s or such Related Party’s gross negligence or willful misconduct, as determined by a
court of competent jurisdiction in a final and nonappealable judgment. The Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the
Platform.
SECTION 10.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) or (c) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing,
the execution and delivery of this Agreement and the making of the Loans or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the
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Administrative Agent, any Lender, any Issuing Bank or any Affiliate of any of the foregoing may have had notice or knowledge of such
Default at the time.
(b) Except as provided in paragraph (c) of this Section, none of this Agreement, any other Loan Document or any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Company, the Administrative Agent and the Required Lenders and, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Parties that are parties thereto (or, in the case of any Borrowing Subsidiary, by the Company on its behalf),
in each case with the consent of the Required Lenders; provided that no such agreement shall (i) (A) waive any condition set forth in
Section 4.02 without the written consent of the Majority in Interest of the Delayed Draw Term Lenders, (B) waive any condition set forth in Section 4.03 without the written consent of the Majority in Interest of
the Revolving Lenders or (C) waive any condition set forth in Section 4.04 without the written consent of the Majority in Interest of the Revolving Lenders (it being understood and agreed, in each case, that any
amendment or waiver of, or any consent with respect to, any provision of this Agreement (other than any waiver expressly relating to Section 4.02, 4.03 or 4.04, as the case may be) or any other Loan Document,
including any amendment of any affirmative or negative covenant set forth herein or in any other Loan Document or any waiver of a Default or an Event of Default, shall not be deemed to be a waiver of a condition
set forth in Section 4.02, 4.03 or 4.04), (ii) increase the Commitment of any Lender without the written consent of such Lender, (iii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate
of interest thereon or reduce any fees payable hereunder (other than as a result of any change in the definition, or in any components thereof, of the term “Leverage Ratio”), without the written consent of each
Lender directly and adversely affected thereby (other than any waiver of any default interest applicable pursuant to Section 2.10(d)), (iv) postpone the scheduled maturity date of any Loan, or the date of any
scheduled payment of the principal amount of any Term Loan under Section 2.07, or the required date of reimbursement of any LC Disbursement, or any date for the payment of any principal, interest or fees payable
under any Loan Document, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely
affected thereby, (v) change Section 2.15(b) or 2.15(c) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender, (vi) change any of the provisions
of this paragraph or the percentage set forth in the definition of the term “Required Lenders” or “Majority in Interest” or any other provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), provided that, with the consent of the Required Lenders or pursuant to Section 2.18 or 2.19, the provisions
of this paragraph and the definition of the term “Required Lenders” may be amended to include references to any new class of loans created under this Agreement (or to lenders extending such loans), (vii) change the
currency of any Loan of any Lender without the written consent of such Lender, or add any new currency as an
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Alternative Currency without the written consent of each Revolving Lender, (viii) release (including by limiting liability in respect
thereof) the Company from its obligations under the Parent Guarantee without the written consent of each Revolving Lender, (ix) release (including by limiting liability in respect thereof) all or substantially all
of the value of the Guarantees created under the Guarantee Agreement without the written consent of each Lender (except as expressly provided in Section 10.14), it being understood that an amendment or other
modification of the type of obligations guaranteed under the Guarantee Agreement shall not be deemed to be a release of any Guarantee thereunder, or (x) change any provisions of this Agreement in a manner that by
its express terms adversely affects the rights in respect of payments of, or the conditions precedent to extensions of credit by, Lenders of any Class differently than those of any other Class, without the written
consent of Lenders representing a Majority in Interest of each differently affected Class; provided further that no such agreement shall amend, modify, extend or otherwise affect the rights or obligations of the Administrative Agent, any Issuing Bank or the
Swingline Lender without the written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be.
(c) Notwithstanding anything to the contrary in paragraph (a) or (b) of this Section:
(i) any provision of this Agreement or any other Loan Document may be amended by an
agreement in writing entered into by the Company and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five
Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders
stating that the Required Lenders object to such amendment;
(ii) no consent with respect to any amendment, waiver or other modification of this
Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (ii), (iii) or (iv) of the first proviso
of paragraph (b) of this Section and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification;
(iii) in the case of any amendment, waiver or other modification referred to in the first
proviso of paragraph (b) of this Section, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of any Lender that receives payment
in full of the principal of and interest accrued on each Loan made by such Lender, and all other amounts owing to or accrued for the account of such Lender under this Agreement and the other Loan Documents, at
the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification;
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(iv) any amendment, waiver or other modification of this Agreement or any other Loan
Document that by its express terms affects the rights or duties hereunder or thereunder of the Lenders of one or more Classes (but not the Lenders of any other Class) may be effected by an agreement or agreements
in writing entered into by the Company, the Administrative Agent and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section
if such Class of Lenders were the only Class of Lenders hereunder at the time;
(v) this Agreement and the other Loan Documents may be amended in the manner provided in
Sections 2.11(b), 2.18 and 2.19;
(vi) this Agreement and the other Loan Documents may be amended in the manner provided in
Section 2.22 and, in connection with any Borrowing Subsidiary becoming a party hereto, this Agreement (including the Exhibits hereto) may be amended by an agreement in writing entered into by the Company and the
Administrative Agent to provide for such technical modifications as they determine to be necessary or advisable in connection therewith;
(vii) in connection with the incurrence of any GET Acquisition Indebtedness, this Agreement
and the other Loan Documents may be amended by an agreement in writing entered into by the Company and the Administrative Agent to add any restrictive or financial covenant, event of default or guarantee
requirement in the manner provided in Section 1.07;
(viii) in connection with the addition of any new currency as an Alternative Currency in
accordance with the definition of such term (and clause (vii) of paragraph (b)
of this Section), this Agreement (including the Exhibits hereto) may be amended by an agreement in writing entered into by the Company and the Administrative Agent to provide for such technical modifications as
they determine to be necessary or advisable in connection therewith
(ix) an amendment to this Agreement contemplated by the last sentence of the penultimate
paragraph of the definition of the term “Applicable Rate” may be made pursuant to an agreement or agreements in writing entered into by the Company, the Administrative Agent and the Required Lenders; and
(x) the Administrative Agent may, without the consent of any Lender, Issuing Bank or
other holder of any Obligations, (A) consent to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement or any other Loan Document to the extent such departure is consistent
with the authority of the Administrative Agent set forth in the definition of the term “Guarantee Requirement” or (B) amend, waive or otherwise modify any provision in the Guarantee Agreement, or consent to a
departure by any Loan Party therefrom, to the extent the Administrative Agent determines that such amendment, waiver, other modification or consent is necessary in order to eliminate any conflict between such
provision and the terms of this Agreement.
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(d) The Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification
effected in accordance with this Section shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
SECTION 10.03. Expenses;
Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and their Affiliates, including the reasonable and documented fees, charges and disbursements
of counsel for any of the foregoing (but limited to a single primary counsel and, if reasonably necessary, a single local counsel in each relevant jurisdiction (including the jurisdiction of organization of any
Borrowing Subsidiary), in each case, for the Administrative Agent, the Arrangers and their Affiliates taken as a whole (which may be a single local counsel acting in multiple jurisdictions)), in connection with the
structuring, arrangement and syndication of the credit facilities provided for herein, including the preparation, execution and delivery of the Bridge Commitment Letter and the Fee Letters, as well as the
preparation, execution, delivery and administration of this Agreement, 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 and documented out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, any Arranger, any Issuing Bank or any Lender, including the
fees, charges and disbursements of any counsel for any of the foregoing, in connection with the enforcement or protection of its rights in connection with the Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.
(b) The Company shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers, the
Syndication Agents, the Documentation Agents, each Lender and each Issuing Bank, and each Related Party of any of the foregoing (each such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless from, any and all losses, claims, damages, penalties, liabilities and related expenses, including the reasonable and
documented fees, charges and disbursements of any counsel for any Indemnitee (but limited to a single primary counsel and, if reasonably necessary, a single local counsel in each relevant jurisdiction (including
the jurisdiction of organization of any Borrowing Subsidiary), in each case, for the Indemnitees, taken as a whole (which may be a single local counsel acting in multiple jurisdictions) and, in the case of an
actual or perceived conflict of interest, where the party affected by such conflict informs the Company of such conflict and thereafter retains its own counsel, of another firm of primary counsel and, if
reasonably necessary, another firm of local counsel in each relevant jurisdiction (which may include a single local counsel acting in multiple jurisdictions)), incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a
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result of (i) the structuring, arrangement and syndication of the credit facilities provided for herein, the preparation, execution,
delivery and administration of the Bridge Commitment Letter, the Fee Letters, this Agreement, the other Loan Documents or any other agreement or instrument contemplated hereby or thereby, the performance by the
parties to the Bridge Commitment Letter, the Fee Letters, this Agreement or the other Loan Documents of their obligations thereunder or the consummation of the Transactions or any other transactions contemplated
thereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Substances at, under, on or from any property currently or
formerly owned or operated by the Company or any Subsidiary (or Person that was formerly a Subsidiary of any of them), or any other liability under Environmental Laws related in any way to the Company, any
Subsidiary (or Person that was formerly a Subsidiary of any of them), or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory and whether initiated against or by any party to the Bridge Commitment Letter, the Fee Letters, this Agreement or any other Loan Document, any Affiliate of any of the foregoing or any third
party (and regardless of whether any Indemnitee is a party thereto); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, penalties, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted
from (1) the gross negligence, bad faith or willful misconduct of such Indemnitee or (2) a breach in bad faith of the funding obligations of such Indemnitee under this Agreement or (B) arise from any dispute among
the Indemnitees, other than any claim, litigation, investigation or proceeding against the Administrative Agent, any Arranger, any Syndication Agent, any Documentation Agent or any other titled person in its
capacity or in fulfilling its role as such and other than any claim, litigation, investigation or proceeding arising out of any act or omission on the part of the Borrowers or any of their Affiliates. Each
Indemnitee shall be obligated to refund and return promptly any and all amounts actually paid by the Company to such Indemnitee under this paragraph for any losses, claims, damages, penalties, liabilities or
expenses to the extent such Indemnitee is subsequently determined, by a court of competent jurisdiction by final and nonappealable judgment, to not be entitled to payment of such amounts in accordance with the
terms of this paragraph (b). This paragraph (b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.
(c) To the extent that the Company fails indefeasibly to pay any amount required under paragraph (a) or (b)
of this Section to the Administrative Agent (or any sub-agent thereof), any Issuing Bank, the Swingline Lender or any Related Party of any of the foregoing (and without limiting its obligation to do so), each
Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such Issuing Bank, the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (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
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loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or such sub-agent), such Issuing Bank or the Swingline 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), such Issuing
Bank or the Swingline Lender. For purposes of this Section, a Lender’s “pro rata share” shall be determined based upon its share of the sum of the aggregate amount of the Revolving Loans, unused Revolving
Commitments and Term Loans (and, prior to the funding of the Delayed Draw Term Loans on the Delayed Draw Term Funding Date, Delayed Draw Term Commitments) at the time outstanding or in effect (or most recently
outstanding or in effect, if none of the foregoing shall be outstanding or in effect at such time).
(d) To the fullest extent permitted by applicable law, no Borrower shall assert, or permit any of its
Affiliates or Related Parties to assert, and each Borrower hereby waives, any claim against any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through
telecommunications, electronic or other information transmission systems (including the Internet), except to the extent arising from the bad faith, gross negligence or willful misconduct of such Indemnitee, as
determined by a court of competent jurisdiction in a final and nonappealable judgment, or (ii) 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 or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.
(e) To the fullest extent permitted by applicable law, the Administrative Agent, the Arrangers, the Issuing
Banks, the Lenders, the Syndication Agents and the Documentation Agents shall not assert, or permit any of their respective Affiliates or Related Parties to assert, and each of them hereby waives, any claim
against the Loan Parties, 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 or thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof; provided, that nothing in this paragraph (e) shall limit the Loan Parties’ indemnity and reimbursement obligations set forth in this Section or separately agreed,
including such indemnity and reimbursement obligations with respect to any special, indirect, consequential or punitive damages arising out of, in connection with or as a result of any claim, litigation,
investigation or proceeding brought against any Indemnitee by any third party.
(f) All amounts due under this Section shall be payable promptly after written demand therefor.
SECTION 10.04. Successors
and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), except
that (i) other than as expressly permitted by Section 6.04 with respect to any Borrowing Subsidiary, neither the Company nor any
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Borrowing Subsidiary may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit), sub-agents of the Administrative Agent, Participants (to the extent provided in paragraph (c)
of this Section), the Arrangers, the Syndication Agents, the Documentation Agents and, to the extent expressly contemplated hereby, the Related Parties of the foregoing) any legal or equitable right, remedy or
claim under or by reason of this Agreement. Notwithstanding anything herein to the contrary, no sale, assignment, novation, transfer or delegation by any Lender of any of its rights or obligations under this
Agreement or any other Loan Document shall, or shall be deemed, to extinguish any of the rights, benefits or privileges afforded by any Guarantee created under the Loan Documents for the benefit of such Lender in
relation to such of its rights or obligations, and all such rights, benefits and privileges shall continue to accrue, to the full extent thereof, for the benefit of the assignee, transferee or delegee of such
Lender in connection with each such sale, assignment, novation, transfer and delegation.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments, and the Loans at the time owing to it) with the prior written consent (such
consent not to be unreasonably withheld, delayed or conditioned) of:
(A) the Company; provided
that no consent of the Company shall be required (1) in the case of any Term Loans, (x) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or (y) if an Event of Default shall have
occurred and be continuing, (2) in the case of Revolving Commitments and Revolving Loans, if an Event of Default shall have occurred and be continuing and (3) for any assignment between Goldman Sachs Bank USA and
Goldman Sachs Lending Partners LLC; provided further, in
each case, that the Company shall be deemed to have consented to any assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice
thereof;
(B) the Administrative Agent; provided that no consent of the Administrative Agent shall be required with respect to assignments to a Lender, an Affiliate of a Lender or an Approved Fund;
(C) each Issuing Bank; provided
that no consent of any Issuing Bank shall be required with respect to assignments of Term Commitments and Term Loans; and
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(D) the Swingline Lender; provided
that no consent of the Swingline Lender shall be required with respect to assignments of Term Commitments and Term Loans.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than US$5,000,000 unless each of the Company and the
Administrative Agent otherwise consents; provided that (1) no such consent of the Company shall be required if an Event of Default has
occurred and is continuing and (2) the Company shall be deemed to have consented to any assignment unless it shall object thereto by written notice to the Administrative Agent within five Business Days after
having received notice thereof;
(B) each partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender’s rights and obligations under this Agreement; provided that this clause (B) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform), together with a processing and recordation fee of US$3,500, provided that (x) only one such processing and recordation fee shall be payable in the event of simultaneous assignments from any Lender or
its Approved Funds to one or more other Approved Funds of such Lender and (y) such processing and recordation fee may be waived by the Administrative Agent in its sole discretion;
(D) the assignee, if it shall not already be a Lender, shall deliver to the
Administrative Agent any tax forms required by Section 2.14(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may
contain MNPI) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable law, including US (Federal or State) and foreign securities laws;
and
(E) assignment to any Person of Loans extended to or for the account of a Borrower
incorporated in the Netherlands shall only be
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permitted if the Person to whom the Loans are assigned is a Non-Public Lender at all times.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this
Section, from and after the effective date specified in each Assignment and Assumption (or an agreement incorporating by reference a form of Assignment and Assumption posted on the Platform) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of
the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14, 10.03 and 10.18); provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.04(c).
(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of
the Borrowers, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and records of the names and addresses of the Lenders, and the Commitments of, and principal amount
(and stated interest) of the Loans and LC Disbursements 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 Borrowers, the Administrative Agent, the Issuing Banks 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, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and, as to entries
pertaining to it, any Issuing Bank or Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon receipt by the Administrative Agent of an Assignment and Assumption (or an
agreement incorporating by reference a form of Assignment and Assumption posted on the Platform) executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax
forms required by Section 2.14(f) (unless the assignee shall already be a Lender hereunder) and the processing and recordation fee referred to in this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register; provided that the Administrative Agent shall
not be required to accept such Assignment and Assumption or so
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record the information contained therein if the Administrative Agent reasonably believes that such Assignment and
Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have no duty or obligation (and shall incur no liability)
with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and obligation being solely with the
assigning Lender and the assignee. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph, and following such recording, unless
otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and
the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption,
shall be deemed to have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been obtained and
that such Assignment and Assumption is otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the
assigning Lender and the Administrative Agent that such assignee is an Eligible Assignee and the assignment is not prohibited pursuant to Section 10.04(b)(ii)(E). The Administrative Agent shall have no
responsibility or liability for an assignment to a Person that is not an Eligible Assignee or for an assignment that is prohibited by Section 10.04(b)(ii)(E).
(c) (i) Any Lender may, without the consent of any Borrower, the Administrative Agent, the Swingline Lender
or any Issuing Bank, sell participations to one or more Eligible Assignees (“Participants”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its Commitments and Loans of any Class); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrowers, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and/or obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Loan Document; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 10.02(b) that affects such Participant or requires the approval of
all the Lenders (or all the Lenders of the applicable Class). The Borrowers agree that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 (subject to the requirements and
limitations therein, including the requirements under Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered
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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 (x) agrees to be subject to the provisions of Sections 2.15 and 2.16 as if
it were an assignee under paragraph (b) of this Section and (y) shall not be entitled to receive any greater payment under Section 2.12 or 2.14 with respect to any 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 participation. Each Lender
that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of Section 2.16(b) with respect to any Participant. To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided
that such Participant agrees to be subject to Section 2.15(c) as though it were a Lender.
(ii) Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain records of the name and address of each Participant and the principal amounts
(and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (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 other rights and/or obligations under this Agreement or any other
Loan Document) to any Person except to the extent that such disclosure is necessary to establish that any such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c)
of the United States Treasury Regulations. 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 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 such) shall have
no responsibility for maintaining a Participant Register.
(d) Any Lender may at any time pledge or grant a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or grant to secure obligations to a Federal Reserve Bank or other central bank, and this Section shall not apply to any such pledge or
grant of a security interest; provided that no such pledge or grant of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations and warranties made by the Loan
Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the
other parties hereto or thereto and shall survive the execution and delivery of the Loan Documents and the
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making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that any of the Administrative Agent, the Arrangers, the Syndication Agents, the Documentation Agents, the Issuing Banks, the Lenders or any Related Party of any of the foregoing may have
had notice or knowledge of any Default or incorrect representation or warranty at the time any Loan Document was executed and delivered or any credit was extended hereunder, and shall continue in full force and
effect as long as the principal of or any interest accrued on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid (other than contingent obligations for indemnification,
expense reimbursement, tax gross-up or yield protection as to which no claim has been made) or any LC Exposure is outstanding and so long as any of the Commitments have not expired or terminated. Notwithstanding
the foregoing or anything else to the contrary set forth in this Agreement or any other Loan Document, in the event that, in connection with the refinancing or repayment in full of the Revolving Facility, an
Issuing Bank shall have provided to the Administrative Agent a written consent to the release of the Revolving Lenders from their obligations hereunder with respect to any Letter of Credit issued by such Issuing
Bank (whether as a result of the obligations of the Borrowers (and any other account party) in respect of such Letter of Credit having been collateralized in full by a deposit of cash with such Issuing Bank, or
being supported by a letter of credit that names such Issuing Bank as the beneficiary thereunder, or otherwise), then from and after such time such Letter of Credit shall cease to be a “Letter of Credit”
outstanding hereunder for all purposes of this Agreement and the other Loan Documents (including for purposes of determining whether the Company is required to comply with Articles V and VI hereof, but excluding
Sections 2.12, 2.13, 2.14, 10.03 and 10.18 and any expense reimbursement or indemnity provisions set forth in any other Loan Document), and the Revolving Lenders shall be deemed to have no participations in such
Letter of Credit, and no obligations with respect thereto, under Section 2.20(d) or 2.20(f). The provisions of Sections 2.12, 2.13, 2.14, 2.15(d), 9.05, 10.03, 10.18 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans and the expiration or termination of the Letters of Credit and the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration;Effectiveness;Electronic Execution. (a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof, including the commitments of the Lenders and, if applicable, their Affiliates under any
commitment advices with respect to the credit facilities established hereby submitted by any Lender (but do not supersede (a) except as may be set forth in the Bridge Facility Agreement, the commitments under the
Bridge Commitment Letter or any other provision of the Bridge Commitment Letter and (b) any provisions of the Fee Letters, all of which provisions shall remain in full force and effect). Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and the Administrative Agent shall
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have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other
electronic imaging shall be effective as delivery of a manually executed counterpart of this Agreement.
(b) The words
“execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement (including any Assignment and Assumptions, amendments
and other notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on the Platform, 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; provided that notwithstanding anything contained herein to the contrary, the
Administrative Agent is not under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it. Without
limiting the generality of the foregoing, the Company hereby (i) agrees that, for all purposes, including in connection with any workout, restructuring, enforcement of
remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, the Issuing Banks and the Company, electronic images of this Agreement or any other
Loan Document (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original,
and (ii) waives any argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies
of any Loan Documents, including with respect to any signature pages thereto.
SECTION 10.07. Severability. Any
provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of
Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and Issuing Bank and each Affiliate of any of the foregoing is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever currency) or other amounts at any time held and other obligations (in whatever currency) at any time owing by such Lender
or Issuing Bank or by such an Affiliate to or for the credit or the account of the Company or any Borrowing Subsidiary against any of and all the obligations then due of the Company
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or any Borrowing Subsidiary now or hereafter existing under this Agreement held by such Lender or Issuing Bank, irrespective of
whether or not such Lender or Issuing Bank shall have made any demand under this Agreement and although such obligations of the Company or such Borrowing Subsidiary are owed to a branch, office or Affiliate of such
Lender or Issuing Bank different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness. The rights of each Lender and Issuing Bank, and each Affiliate of any of the foregoing,
under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, Issuing Bank or Affiliate may have. Each Lender and Issuing Bank agrees to notify the Company and
the Administrative Agent promptly after any such setoff and application; provided that the failure to give notice shall not affect the
validity of such setoff and application. Notwithstanding anything to the contrary in this Agreement, in no event will any deposits or other amounts at any time held or other obligations at any time owing by any
Lender or Issuing Bank or any of their respective Affiliates to or for the account of any Foreign Borrowing Subsidiary be set off and applied against any obligations under this Agreement of the Company or any
Domestic Borrowing Subsidiary.
SECTION 10.09. Governing Law; Jurisdiction;
Consent to Service of Process. (a) This Agreement shall be governed by, and construed in accordance with, the law of the
State of New York; provided that (i) the interpretation of the definition of the term “GET Acquired Business Material Adverse Effect”
and whether or not a GET Acquired Business Material Adverse Effect has occurred, (ii) the determination of the accuracy of any GET Merger Agreement Representations and whether as a result of any failure of such GET
Merger Agreement Representations to be true and correct the Company or any of its Affiliates (A) has the right to not consummate GET Direct Sale or the GET Merger or to terminate its obligations or (B) otherwise
does not have an obligation to close, in each case, under the GET Separation Agreement or the GET Merger Agreement, as applicable, and (iii) the determination of whether each of the GET Internal Reorganization, the
GET SpinCo Transfer, the GET Direct Sale, the GET Distribution and the GET Acquisition (including the GET Merger) has been consummated pursuant to and on the terms set forth in the GET Separation Agreement and the
GET Merger Agreement, in each case, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.
(b) Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the
jurisdiction of the United States District Court of the Southern District of New York and of the Supreme Court of the State of New York sitting in New York County, and any appellate court from any thereof, in any
suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and, subject to the final sentence of this Section, each
party hereto hereby irrevocably and unconditionally agrees that all claims arising out of or relating to this Agreement or any other Loan Document brought by it or any of its Affiliates shall be brought, and
shall be heard and determined, exclusively in such United States District Court or, if that court does not have subject matter jurisdiction, such Supreme Court. Each party hereto agrees that a final judgment in
any such suit,
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action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring any suit, action or proceeding relating to this Agreement
or any other Loan Document against any Foreign Borrowing Subsidiary or any of its properties in the court of the jurisdiction of organization of such Foreign Borrowing Subsidiary.
(c) Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for
notices in Section 10.01. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(e) Each Borrowing Subsidiary hereby irrevocably designates, appoints and empowers the Company, and the
Company hereby accepts such appointment, as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect of its property, service of any and all legal process,
summons, notices and documents that may be served in any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document. Such service may be made by mailing or delivering a
copy of such process to any Borrowing Subsidiary in care of the Company at the Company’s address used for purposes of giving notices under Section 10.01, and each Borrowing Subsidiary hereby irrevocably
authorizes and directs the Company to accept such service on its behalf.
(f) In the event any Borrowing Subsidiary or any of its assets has or hereafter acquires, in any
jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Loan Document, any immunity from jurisdiction, legal proceedings, attachment (whether before or
after judgment), execution, judgment or setoff, such Borrowing Subsidiary hereby irrevocably agrees not to claim and hereby irrevocably and unconditionally waives such immunity.
SECTION 10.10. WAIVER
OF JURY TRIAL. 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, 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 PARTY HAS
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REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 10.11. Headings. Article
and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Related Parties, including accountants, legal counsel and other
agents and advisors, it being understood that the Persons to whom such disclosure is made either are informed of the confidential nature of such Information and instructed to keep such Information confidential or
are subject to customary confidentiality obligations of employment or professional practice, (b) to the extent required or requested by any Governmental Authority purporting to have jurisdiction over such Person or
its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners) (in which case such Person agrees to inform the Company promptly thereof prior to such
disclosure to the extent practicable and not prohibited by applicable law (except with respect to any audit or examination conducted by bank accountants or any Governmental Authority exercising examination or
regulatory authority)), (c) to the extent required by applicable law or by any subpoena or similar legal process (in which case such Person agrees to inform the Company promptly thereof prior to such disclosure to
the extent practicable and not prohibited by applicable law), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or any
suit, action or proceeding relating to this Agreement or any other Loan Document, the enforcement of rights hereunder or thereunder or any Transactions, (f) subject to an agreement containing confidentiality
undertakings substantially the same as those of this Section (which shall be deemed to include those required to be made in order to obtain access to information posted on IntraLinks, SyndTrak or any other
Platform), to (i) any assignee of or Participant in (or its Related Parties), or
any prospective assignee of or Participant in (or its Related Parties), any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its Related Parties) to any swap or
derivative transaction relating to the Company or any Subsidiary and their respective obligations, (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or
the credit facilities provided for herein or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and
monitoring of CUSIP numbers with respect to the credit facilities provided for herein, (h) with the consent of the Company, (i) to market data collectors, similar service providers to the lending industry and
service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement or any other Loan
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Document, provided that such information is limited to
the information about this Agreement and the other Loan Documents, or (j) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available
to the Administrative Agent, any Issuing Bank, any Lender or any Affiliate of any of the foregoing on a nonconfidential basis from a source other than the Company or any Subsidiary that is not known by the
Administrative Agent, such Lender, such Issuing Bank or such Affiliate to be prohibited from disclosing such Information to such Persons by a legal, contractual, or fiduciary obligation to the Company or any
Subsidiary. For purposes of this Section, “Information” means all information received from the Company or any Subsidiary relating to the
Company or any Subsidiary or its businesses, other than any such information that is available to the Administrative Agent, any Issuing Bank, any Lender or any Affiliate of any of the foregoing on a nonconfidential
basis prior to disclosure by the Company or any Subsidiary; provided that, in the case of information received from the Company or any
Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own
confidential information. It is agreed that, notwithstanding the restrictions of any prior confidentiality agreement binding on the Administrative Agent or any Arranger, such Persons may disclose Information as
provided in this Section.
SECTION 10.13. Interest
Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts that are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”)
that may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 10.14. Release of Guarantees under
Guarantee Agreement. (a) Subject to Section 2.04 of the Guarantee
Agreement, the Guarantees made under the Guarantee Agreement shall automatically terminate and be released when all the Loan Document Obligations (other than contingent obligations for indemnification, expense
reimbursement, tax gross-up or yield protection as to which no claim has been made) have been paid in full in cash, the Lenders have no further commitment to lend under this Agreement and no Letter of Credit
shall be outstanding.
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(b) A Subsidiary Guarantor shall automatically be released from its obligations under the Loan Documents
upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary Guarantor ceases to be a Subsidiary; 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.
(c) In connection with any termination or release pursuant to this Section, the Administrative Agent shall
execute and deliver to any Loan Party, at such Loan Party’s expense, all documents (in form and substance reasonably satisfactory to the Administrative Agent) 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. Each holder of any Obligations
irrevocably authorizes the Administrative Agent, at its option and in its discretion, to effect the releases set forth in this Section.
SECTION 10.15. USA
PATRIOTActandBeneficialOwnership Regulation Notice. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Loan Party that pursuant
to the requirements of the USA PATRIOT Act and/or the Beneficial Ownership Regulation it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the USA PATRIOT Act and the
Beneficial Ownership Regulation.
SECTION 10.16. No
Fiduciary Relationship. Each Borrower, on behalf of itself
and its Subsidiaries, agrees that in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Borrowers and their Affiliates, on the one hand, and the
Administrative Agent, the Lenders, the Issuing Banks and their Affiliates, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of
the Administrative Agent, the Lenders, the Issuing Banks or their Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications. The Administrative Agent, the
Arrangers, the Lenders, the Issuing Banks and their Affiliates may be engaged, for their own accounts or the accounts of customers, in a broad range of transactions that involve interests that differ from those of
the Borrowers and their Affiliates, and none of the Administrative Agent, the Arrangers, the Lenders, the Issuing Banks or their Affiliates has any obligation to disclose any of such interests to the Borrowers or
any of their Affiliates. To the fullest extent permitted by law, each Borrower hereby waives and releases any claims that it or any of its Affiliates may have against the Administrative Agent, the Arrangers, the
Lenders, the Issuing Banks or their Affiliates with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
SECTION 10.17. Non-Public
Information. (a) Each Lender acknowledges that all
information, including requests for waivers and amendments,
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furnished by the Borrowers or the Administrative Agent pursuant to or in connection with, or in the course of administering, this
Agreement will be syndicate-level information, which may contain MNPI. Each Lender represents to the Borrowers and the Administrative Agent that (i) it has developed compliance procedures regarding the use of MNPI
and that it will handle MNPI in accordance with such procedures and applicable law, including Federal, state and foreign securities laws, and (ii) it has identified in its Administrative Questionnaire a credit
contact who may receive information that may contain MNPI in accordance with its compliance procedures and applicable law, including United States (Federal or state) and foreign securities laws.
(b) The Borrowers and each Lender acknowledge that, if information furnished by or on behalf of any Borrower
or any other Loan Party pursuant to or in connection with this Agreement is being distributed by the Administrative Agent through the Platform, (i) the Administrative Agent may post any information that the
Company has indicated as containing MNPI solely on that portion of the Platform designated for Private Side Lender Representatives and (ii) if the Company has not indicated whether any information furnished by it
pursuant to or in connection with this Agreement contains MNPI, the Administrative Agent reserves the right to post such information solely on that portion of the Platform designated for Private Side Lender
Representatives. The Company agrees to clearly designate all information provided to the Administrative Agent by or on behalf of any Borrower or any other Loan Party that is suitable to be made available to
Public Side Lender Representatives, and the Administrative Agent shall be entitled to rely on any such designation by the Company without liability or responsibility for the independent verification thereof.
(c) If the Company does not file this Agreement with the SEC, then the Company hereby authorizes the
Administrative Agent to distribute the execution version of this Agreement and the Loan Documents to all Lenders, including their Public Side Lender Representatives. The Company acknowledges its understanding
that Lenders, including their Public Side Lender Representatives, may be trading in securities of the Company and its Affiliates while in possession of the Loan Documents.
SECTION 10.18. Conversion
of Currencies. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto (including each Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could be purchased with such other currency on
the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of
each Borrower in respect of any sum due to any other party hereto or any holder of the obligations owing hereunder (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than the currency in which such sum is stated to be due hereunder (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any sum adjudged to be so due in the
Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant
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jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against
such deficiency.
SECTION 10.19. Acknowledgement
and Consent
to Bail- In of EEAAffected Financial Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the parties hereto, each party hereto acknowledges that any liability of any Lender or
Issuing Bank that is an EEAAffected 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 an EEAthe 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 an EEAthe applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or Issuing Bank party hereto
that is an EEAAffected 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 EEAAffected 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 any EEAthe applicable Resolution Authority.
SECTION
10.20. Acknowledgement Regarding Any Supported QFCs. To
the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedging 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 “US 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
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laws of the State of New
York and/or of the United States or any other state of the United States):
In the
event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a US 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 US 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 US 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 US 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
10.21. SECTION 10.20. Dutch Loan Party Representation. If any Loan Party incorporated under the laws of the Netherlands is represented by an attorney in connection with the signing and/or execution of this
Agreement or any other agreement, deed or document referred to in or made pursuant to this Agreement, it is hereby expressly acknowledged and accepted by the other parties to this Agreement that the existence and
extent of the attorney's authority and effects of the attorney's exercise or purported exercise of his or her authority shall be governed by the laws of the Netherlands.
SECTION
10.22. SECTION 10.21. Existing Credit Agreement. Each Lender that was, immediately prior to the occurrence of the Effective Date, a lender under the Existing Credit Agreement hereby waives any right to receive any
payment under Section 5.10 of the Existing Credit Agreement arising from the consummation of the Existing Credit Agreement Refinancing.
[Signature pages follow]