### SC TO-T - SC TO-T
SC TO-T
1
d94032dsctot.htm
SC TO-T
SC TO-T
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Great Lakes Dredge & Dock Corporation
(Name of Subject Company (Issuer))
Huron MergeCo., Inc.
(Name of Filing Persons (Offeror))
Saltchuk Resources, Inc.
(Name of Filing Persons (Parent of Offeror))
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
390607109
(CUSIP Number
of Class of Securities)
Jerald W. Richards
c/o Saltchuk Resources, Inc.
450 Alaskan Way South, Suite 708
Seattle, Washington 98104
(206) 652-1111
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Philip
Richter
Ryan Messier
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New
York, New York, 10004
(212) 859-8000
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Check the box if the filing relates solely to preliminary communications made before the commencement of a
tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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Third-party offer subject to Rule 14d-1.
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Issuer tender offer subject to Rule 13e-4.
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Going-private transaction subject to Rule 13e-3.
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Amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third Party Tender Offer)
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This Tender Offer Statement on Schedule TO (this “ Schedule TO ”) relates
to the offer (the “ Offer ”) by Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a wholly owned subsidiary of Saltchuk Resources, Inc., a Washington corporation (“ Parent ”), to
purchase all of the issued and outstanding shares of common stock, par value $0.0001 per share (the “ Shares ”), of Great Lakes Dredge & Dock Corporation (“ GLDD ”), for $17.00 per Share in cash (the
“ Offer Price ”), subject to any required tax withholdings and without interest, upon the terms and subject to the conditions described in the Offer to Purchase and in the related Letter of Transmittal, copies of which are attached
hereto and filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of February 10, 2026, by and among GLDD, Parent and Purchaser (together
with any amendments or supplements thereto, the “ Merger Agreement ”), a copy of which is attached hereto and filed with this Schedule TO as Exhibit (d)(1) and incorporated herein by reference in response to Items 4 through 11
of this Schedule TO. Capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in the Merger Agreement.
All of the information set forth in the Offer to Purchase, including all schedules thereto, is expressly incorporated herein by reference in
response to Items 1 through 11 of this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
ITEM 1. |
SUMMARY TERM SHEET.
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The information set forth in the section of the Offer to Purchase titled “Summary Term Sheet” is incorporated herein by reference.
ITEM 2. |
SUBJECT COMPANY INFORMATION.
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(a) The subject company and the issuer of the securities subject to the Offer is Great Lakes Dredge & Dock Corporation. Its principal
executive office is located at 9811 Katy Freeway, Suite 1200, Houston, Texas, 77024, and its telephone number is (346) 359-1010.
(b) This Schedule TO relates to all of the issued and outstanding Shares. According to GLDD, as of the close of business on March 30, 2026
(except as noted below), there will be: (i) 67,433,542 Shares issued and outstanding (other than Shares that may be issued under the GLDD ESPP after March 4, 2026), (ii) 1,052,160 Shares subject to then outstanding Time-Based RSU Awards (other
than Company DSUs), (iii) 465,920 Shares subject to then outstanding Performance-Based RSU Awards (other than Special PSUs), measured at (A) the projected actual level of performance in respect of metrics established as of the date of the
Merger Agreement with respect to the 2026 annual performance period, and (B) the target level of performance in respect of metrics applicable to the (1) 2027 annual performance period and (2) metrics not established as of the date of the
Merger Agreement and applicable to the 2026 annual performance period, (iv) 150,000 Shares subject to then outstanding Special PSUs measured assuming all conditions applicable to such Special PSUs will be achieved, (v) 126,318 Shares subject to then
outstanding Company DSUs, and (vi) 53,744 Shares which are expected to be issued under GLDD’s 2025 Employee Stock Purchase Plan (the “GLDD ESPP”), estimated based on deductions withheld from compensation under the GLDD ESPP through
March 2, 2026.
(c) The information concerning the principal market on which the Shares are traded, and certain high and low sales prices
for the Shares in the principal market in which the Shares are traded, is set forth in the section of the Offer to Purchase titled “The Tender Offer—Section 6. Price Range of Shares” and is incorporated herein by reference.
ITEM 3. |
IDENTITY AND BACKGROUND OF FILING PERSON.
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(a)—(c) The filing persons of this Schedule TO are Parent and Purchaser.
The business address of each of the filing persons is 450 Alaskan Way South, Suite 708, Seattle, Washington 98104. The business telephone
number of each of the filing persons is (206) 652-1111.
The information set forth in the sections of the Offer to Purchase titled “Summary
Term Sheet,” “The Tender Offer—Section 8. Certain Information Concerning Parent and Purchaser” and “Schedule A—Information Concerning Members of the Boards of Directors and the Executive Officers of
Purchaser, Parent, Saltchuk Holdings, Inc. and their Respective Controlling Corporations” is incorporated herein by reference.
ITEM 4. |
TERMS OF THE TRANSACTION.
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(a)(1)(i)—(viii), (xii), (a)(2)(i)—(iv), (vii) The information set forth in the sections of the Offer to Purchase titled
“Summary Term Sheet,” “The Tender Offer—Section 1. Terms of the Offer,” “The Tender Offer—Section 2. Acceptance for Payment and Payment for Shares,” “The Tender
Offer—Section 3. Procedures for Tendering Shares,” “The Tender Offer—Section 4. Withdrawal Rights,” “The Tender Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the Offer and
the Merger,” “The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements” and “The Tender Offer—Section 12. Purpose of the Offer and Plans for GLDD” is incorporated
herein by reference.
(a)(1)(ix)—(xi), (a)(2)(v)—(vi) Not applicable.
ITEM 5. |
PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
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(a), (b) The information set forth in the sections of the Offer to Purchase titled “Summary Term Sheet” and in “The Tender
Offer—Section 8. Certain Information Concerning Parent and Purchaser,” and “The Tender Offer—Section 10. Background of the Offer; Contacts with GLDD” is incorporated herein by reference.
ITEM 6. |
PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
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(a), (c)(1), (c)(3)—(7) The information set forth in the sections of the Offer to Purchase titled “Summary Term Sheet,”
“Introduction,” and in “The Tender Offer—Section 1. Terms of the Offer,” “The Tender Offer—Section 10. Background of the Offer; Contacts with GLDD,” “The Tender
Offer—Section 12. Purpose of the Offer and Plans for GLDD,” “The Tender Offer—Section 13. Certain Effects of the Offer,” and “The Tender Offer—Section 14. Dividends and Distributions” is
incorporated herein by reference.
(c)(2) Not applicable.
ITEM 7. |
SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
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(a), (b), (d) The information set forth in the sections of the Offer to Purchase titled “Summary Term Sheet” and in “The
Tender Offer—Section 9. Source and Amount of Funds” is incorporated herein by reference.
ITEM 8. |
INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
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The information set forth the sections of the Offer to Purchase titled “Summary Term Sheet” and in “The Tender
Offer—Section 8. Certain Information Concerning Parent and Purchaser.” and “Schedule A—Information Concerning Members of the Boards of Directors and the Executive Officers of Purchaser, Parent, Saltchuk Holdings, Inc.
and their Respective Controlling Corporations” is incorporated herein by reference.
ITEM 9. |
PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
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(a) The information set forth in the sections of the Offer to Purchase titled “Introduction” and “The Tender
Offer—Section 17. Fees and Expenses” is incorporated herein by reference.
ITEM 10. |
FINANCIAL STATEMENTS.
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(a), (b) Not applicable.
ITEM 11. |
ADDITIONAL INFORMATION.
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(a) The information set forth in the sections of the Offer to Purchase titled “Summary Term Sheet,” “The Tender
Offer—Section 8. Certain Information Concerning Parent and Purchaser,” “The Tender Offer—Section 10. Background of the Offer; Contacts with GLDD,” “The Tender Offer—Section 11. Summary of the
Merger Agreement and Certain Other Agreements,” “The Tender Offer—Section 12. Purpose of the Offer and Plans for GLDD,” “The Tender Offer—Section 13. Certain Effects of the Offer,” “The
Tender Offer—Section 15. Conditions of the Offer,” “The Tender Offer—Section 16. Certain Legal Matters; Regulatory Approvals; Appraisal Rights” is incorporated herein by reference.
(c) The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.
ITEM 12. |
EXHIBITS.
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Index No.
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(a)(1)(A)* |
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Offer to Purchase, dated March 4, 2026. |
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(a)(1)(B)* |
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Form of Letter of Transmittal. |
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(a)(1)(C)* |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
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(a)(1)(D)* |
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
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(a)(1)(E)* |
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Form of Summary Advertisement as published on March 4, 2026 in the New York Times. |
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(a)(5)(i) |
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Joint Press Release of Great Lakes Dredge & Dock Corporation and Saltchuk Resources, Inc. issued on February
11, 2026 (incorporated by reference to Exhibit 99.1 of Great Lakes Dredge & Dock Corporation’s Current Report on Form 8-K filed with the SEC on February 11, 2026). |
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(a)(5)(ii)* |
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Joint Press Release of Great Lakes Dredge & Dock Corporation and Saltchuk Resources, Inc. issued on March 4, 2026. |
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(b)(1)* |
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Commitment Letter, dated as of February
10, 2026, by and among U.S. Bank National Association, Bank of America, N.A., BofA Securities, Inc., PNC Bank, National Association, PNC Capital Markets LLC, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, and Saltchuk Resources, Inc. |
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(b)(2)* |
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Credit Agreement, dated May
21, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Parent Credit Agreement”), with Bank of America, N.A., as Administrative Agent, L/C Issuer and a Lender, Wells Fargo Bank, N.A.,
as Swing Line Lender and a Lender, U.S. Bank National Association, as a Lender, JPMorgan Chase Bank, N.A., as a Lender, PNC Bank, National Association, as a Lender, Zions Bancorporation, N.A. d/b/a The Commerce Bank of Washington, as a Lender, WAFD
Bank, as a Lender, First Hawaiian Bank, as a Lender, and Bank of Hawaii, as a Lender. |
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(d)(1) |
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Agreement and Plan of Merger, dated as of February 10, 2026, by and among Great Lakes Dredge
& Dock Corporation, Saltchuk Resources, Inc. and Huron MergeCo., Inc. (incorporated by reference to Exhibit 2.1 to Great Lakes Dredge
& Dock Corporation’s Current Report on Form 8-K filed with the SEC on February 11, 2026). |
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(d)(2) |
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Letter Agreement, dated as of February 10, 2026, by and among Great Lakes Dredge
& Dock Corporation, Saltchuk Resources, Inc. and Lasse Petterson (incorporated by reference to Exhibit 10.3 to Great Lakes Dredge
& Dock Corporation’s Current Report on Form 8-K filed with the SEC on February 11, 2026). |
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(d)(3) |
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Letter Agreement, dated as of February 10, 2026, by and among Great Lakes Dredge
& Dock Corporation, Saltchuk Resources, Inc. and Scott Kornbleau (incorporated by reference to Exhibit 10.4 to Great Lakes Dredge
& Dock Corporation’s Current Report on Form 8-K filed with the SEC on February 11, 2026). |
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(d)(4) |
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Letter Agreement, dated as of February 10, 2026, by and among Great Lakes Dredge
& Dock Corporation, Saltchuk Resources, Inc. and Vivienne R. Schiffer (incorporated by reference to Exhibit 10.5 to Great Lakes Dredge
& Dock Corporation’s Current Report on Form 8-K filed with the SEC on February 11, 2026). |
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(d)(5)* |
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Non-Disclosure Agreement, dated as of October 1, 2025, by and between Great Lakes Dredge & Dock Corporation and Saltchuk Resources, Inc. |
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(d)(6)* |
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Confidentiality Agreement, dated as of January 7, 2026, by and between Great Lakes Dredge & Dock Corporation and Saltchuk Resources, Inc. |
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Index No.
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(g) |
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Not applicable. |
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(h) |
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Not applicable. |
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107* |
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Filing fee table. |
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Filed herewith.
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ITEM 13. |
INFORMATION REQUIRED BY SCHEDULE 13E-3.
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Not applicable.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and
correct.
Dated: March 4, 2026
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HURON MERGECO., INC. |
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By: |
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/s/ Jerald W. Richards
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Name: |
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Jerald W. Richards |
Title: |
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Treasurer |
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SALTCHUK RESOURCES, INC. |
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By: |
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/s/ Jerald W. Richards
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Name: |
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Jerald W. Richards |
Title: |
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Senior V.P. and CFO |
### EX-99.(A)(1)(A) - EX-99.(A)(1)(A)
EX-99.(A)(1)(A)
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d94032dex99a1a.htm
EX-99.(A)(1)(A)
EX-99.(a)(1)(A)
Exhibit (a)(1)(A)
Offer to Purchase
All
Outstanding Shares of Common Stock
of
GREAT LAKES DREDGE & DOCK CORPORATION
at
An Offer Price of
$17.00 per Share in Cash
by
HURON MERGECO., INC.,
a wholly owned subsidiary
of
SALTCHUK RESOURCES,
INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE ONE MINUTE AFTER 11:59 P.M. NEW YORK CITY TIME ON MARCH 31, 2026, UNLESS THE
OFFER IS EXTENDED OR EARLIER TERMINATED.
Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a wholly
owned subsidiary of Saltchuk Resources, Inc., a Washington corporation (“ Parent ”), is offering to purchase (the “ Offer ”) all of the issued and outstanding shares of common stock, par value $0.0001 per share
(“ Shares ”), of Great Lakes Dredge & Dock Corporation, a Delaware corporation (“ GLDD ”), for $17.00 per Share in cash (the “ Offer Price ”), upon the terms and subject to the conditions
described in this Offer to Purchase (together with any amendments or supplements hereto, this “ Offer to Purchase ”) and the related Letter of Transmittal (together with any amendments or supplements thereto, the “ Letter of
Transmittal ”). Subject to the terms of the Agreement and Plan of Merger, dated as of February 10, 2026, by and among GLDD, Parent and Purchaser (together with any amendments or supplements thereto, the “ Merger
Agreement ”), the Offer Price will be paid subject to any required tax withholdings and without interest.
The Offer is being
made pursuant to the Merger Agreement, pursuant to which, after the completion of the Offer and the satisfaction or, to the extent permitted by the Merger Agreement, waiver of certain conditions, Purchaser will be merged with and into GLDD, without
a meeting, vote or any further action of GLDD’s stockholders (“ GLDD Stockholders ”) in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the “ DGCL ”), whereupon the
separate existence of Purchaser will cease and GLDD will survive the merger as a wholly owned subsidiary of Parent (such corporation, the “ Surviving Corporation ”, such merger, the “ Merger ” and the Merger,
together with the Offer and the other transactions contemplated by the Merger Agreement, the “ Transactions ”). The date and time at which the Merger becomes effective is referred to in this Offer to Purchase as the
“ Effective Time ”. Upon the terms and subject to the conditions of the Offer and the Merger Agreement, including the satisfaction or, to the extent permitted by the Merger Agreement, waiver of the conditions of the Offer, Purchaser
will, and Parent will cause Purchaser to, (i) immediately, and in no event later than 8:30 a.m. New York City time one (1) business day (determined as set forth in Rule 14d-1(g)(3) under the Exchange
Act) after the Expiration Date (as defined below), irrevocably accept for purchase and payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer (such acceptance, the “ Offer Closing ”, and the date and
time at which the Offer Closing occurs, the “ Acceptance Time ”) and (ii) pay (subject to any
i
required tax withholdings) for all such Shares as promptly as practicable (and in any event within two (2) business days) after the Acceptance Time.
The Offer and withdrawal rights are scheduled to expire at one minute past 11:59 p.m. New York City time on March 31, 2026 (the
“ Expiration Date ”), unless extended in accordance with the terms of the Merger Agreement and the applicable rules and regulations of the Securities and Exchange Commission, in which event the term “Expiration Date”
will mean the date to which the Expiration Date is so extended.
Pursuant to the Merger Agreement, at the Effective Time, by virtue of the
Merger and without any action required by any party to the Merger Agreement or any GLDD Stockholder, each Share issued and outstanding immediately prior to the Effective Time other than Shares (i) held by GLDD in treasury or owned of record by
GLDD or any subsidiary of GLDD and Shares owned of record by Parent, Purchaser (including Shares irrevocably accepted for payment by Purchaser in the Offer) or any of their respective wholly-owned subsidiaries (in each case, other than those held on
behalf of any third party) shall be canceled and cease to exist, with no payment being made with respect thereto, and (ii) held by any GLDD Stockholders who have properly demanded appraisal rights of such Shares under, and who comply in all
respects with, Section 262 of the DGCL and have not validly revoked such demand, will automatically be converted into the right to receive an amount in cash equal to the Offer Price, without interest thereon and subject to any applicable
withholding taxes (the “ Merger Consideration ”).
After careful consideration, the board of directors of GLDD (the
“ GLDD Board ”) has unanimously: (i) determined that it is in the best interests of GLDD and GLDD Stockholders for GLDD to enter into the Merger Agreement and declared the Merger Agreement and the Transactions, including the
Offer and the Merger, advisable, (ii) approved the execution, delivery and performance of, and adopted, the Merger Agreement and the consummation of the Transactions, including the Merger and the Offer, in accordance with the DGCL,
(iii) resolved that the Merger shall be effected under and governed by Section 251(h) of the DGCL, and (iv) recommended that GLDD Stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
The Offer is subject to various conditions including, among others, the Minimum Tender Condition. See “ The Tender
Offer—Section 15. Conditions of the Offer .” A summary of the principal terms of the Offer appears on pages 1 through 8 of this Offer to Purchase. You should read this entire document carefully before deciding
whether to tender your Shares.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of the Transactions, passed upon the merits or fairness of the Transactions or passed upon the adequacy or accuracy of the information contained in this document. Any representation to the contrary is a criminal offense.
March 4, 2026
ii
IMPORTANT
If you desire to tender all or any portion of your Shares to Purchaser pursuant to the Offer, you should either: (i) if you hold your
Shares directly as the registered owner, complete and sign the Letter of Transmittal for the Offer, which is enclosed with this Offer to Purchase, in accordance with the instructions contained in the Letter of Transmittal, mail or deliver the Letter
of Transmittal and any other required documents to Broadridge Corporate Issuer Solutions, LLC, the depositary and paying agent for the Offer (the “ Depositary and Paying Agent ”), and either deliver the certificates for your Shares
to the Depositary and Paying Agent along with the Letter of Transmittal or tender your Shares by book-entry transfer by following the procedures described in “ The Tender Offer—Section 3. Procedures for Tendering
Shares ” of this Offer to Purchase prior to the expiration of the Offer; or (ii) if you hold your Shares in “street name,” request that your broker, dealer, commercial bank, trust company or other nominee effect the
transaction for you. If you hold Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee you must contact that institution in order to tender your Shares to Purchaser pursuant to the Offer.
* * *
Questions and requests
for assistance may be directed to MacKenzie Partners, Inc. (the “ Information Agent ”) at its address and telephone number set forth on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to
Purchase, the Letter of Transmittal and other tender offer materials may be directed to the Information Agent. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance.
This Offer to Purchase and the Letter of Transmittal contain important information, and you should read both carefully and in their entirety
before making any decision with respect to the Offer.
iii
TABLE OF CONTENTS
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Page |
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IMPORTANT
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iii |
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SUMMARY TERM SHEET
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1 |
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INTRODUCTION
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9 |
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THE TENDER OFFER
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11 |
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1.
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TERMS OF THE OFFER. |
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11 |
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2.
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ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. |
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13 |
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3.
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PROCEDURES FOR TENDERING SHARES. |
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14 |
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4.
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WITHDRAWAL RIGHTS. |
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5.
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CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER. |
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6.
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PRICE RANGE OF SHARES. |
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21 |
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7.
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CERTAIN INFORMATION CONCERNING GLDD. |
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8.
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CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER. |
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9.
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SOURCE AND AMOUNT OF FUNDS. |
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23 |
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10.
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BACKGROUND OF THE OFFER; CONTACTS WITH GLDD. |
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25 |
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11.
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SUMMARY OF THE MERGER AGREEMENT AND CERTAIN OTHER AGREEMENTS. |
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29 |
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12.
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PURPOSE OF THE OFFER AND PLANS FOR GLDD. |
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13.
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CERTAIN EFFECTS OF THE OFFER. |
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55 |
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14.
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DIVIDENDS AND DISTRIBUTIONS. |
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56 |
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15.
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CONDITIONS OF THE OFFER. |
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56 |
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16.
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CERTAIN LEGAL MATTERS; REGULATORY APPROVALS; APPRAISAL RIGHTS. |
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57 |
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17.
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FEES AND EXPENSES. |
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62 |
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18.
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MISCELLANEOUS. |
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62 |
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SUMMARY TERM SHEET
This Summary Term Sheet highlights selected information from this Offer to Purchase (together with any amendments or supplements hereto, this
“ Offer to Purchase ”) and may not contain all of the information that is important to you and is qualified in its entirety by the more detailed descriptions and explanations contained in the Agreement and Plan of Merger, dated as
of February 10, 2026, by and among Great Lakes Dredge & Dock Corporation, a Delaware corporation (“ GLDD ”), Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a wholly owned subsidiary
of Saltchuk Resources, Inc., a Washington corporation (“ Parent ”) (together with any amendments or supplements thereto, the “ Merger Agreement ”), this Offer to Purchase, the related Letter of Transmittal (together
with any amendments or supplements thereto, the “ Letter of Transmittal ”) and other materials related to Purchaser’s offer to purchase (the “ Offer ”) all of the issued and outstanding shares of common stock,
par value $0.0001 per share (“ Shares ”), of GLDD for $17.00 per Share in cash (the “ Offer Price ”), upon the terms and subject to the conditions described in this Offer to Purchase and the related Letter of
Transmittal. You are urged to read this Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer carefully and in their entirety. Additionally, below are some questions that you, as a stockholder of GLDD
(“ GLDD Stockholder ”), may have, and answers to those questions. Questions or requests for assistance may be directed to MacKenzie Partners, Inc. (the “ Information Agent ”) at its address and telephone number, as
set forth on the back cover of this Offer to Purchase.
Unless otherwise indicated in this Offer to Purchase or the context otherwise
requires, all references in this Offer to Purchase to “we,” “our,” or “us” refer to Purchaser or Parent as the context requires.
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Securities Sought |
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All issued and outstanding Shares. |
Price Offered Per Share |
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The Offer Price, upon the terms and subject to the conditions described in this Offer to Purchase and the related Letter of Transmittal, subject to any required tax withholdings and without interest. |
Scheduled Expiration Date |
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The Offer and withdrawal rights are scheduled to expire at one minute past 11:59 p.m. New York City time on March 31, 2026, unless extended in accordance with the terms of the Merger Agreement and the applicable rules
and regulations of the Securities and Exchange Commission, in which event the term “ Expiration Date ” will mean the date to which the Expiration Date is so extended. |
Purchaser |
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Huron MergeCo., Inc., a Delaware corporation and a wholly owned subsidiary of Saltchuk Resources, Inc., a Washington corporation. |
GLDD Board Recommendation |
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The board of directors of GLDD (the “ GLDD Board ”) unanimously recommended that GLDD Stockholders accept the Offer and tender their Shares pursuant to the Offer. |
WHO IS OFFERING TO BUY MY SHARES?
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Purchaser is Huron MergeCo., Inc. Purchaser is offering to buy your Shares. Purchaser has been organized in
connection with this Offer and has not carried on any activities other than entering into the Merger Agreement and activities in connection with the Offer. See “ The Tender Offer—Section 8. Certain Information
Concerning Parent and Purchaser .”
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Parent is Saltchuk Resources, Inc. See “ The Tender Offer—Section 8. Certain
Information Concerning Parent and Purchaser .”
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Parent has agreed pursuant to the Merger Agreement to cause Purchaser to, upon the terms and subject to the
conditions in this Offer to Purchase and the related Letter of Transmittal, accept and pay for Shares tendered and not validly withdrawn in the Offer.
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1
WHO CAN PARTICIPATE IN THE OFFER?
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The Offer is open to all holders and beneficial owners of the Shares.
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DOES PARENT, PURCHASER OR ANY OF THEIR RESPECTIVE AFFILIATES ALREADY BENEFICIALLY OWN SHARES?
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Parent, Purchaser and their respective affiliates do not own any Shares. See “ The Tender
Offer—Section 8. Certain Information Concerning Parent and Purchaser .”
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HOW MUCH IS PURCHASER
OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT?
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Purchaser is offering to pay you $17.00 per Share in cash, without interest and subject to any required tax
withholdings, upon the terms and subject to the conditions contained in this Offer to Purchase and the related Letter of Transmittal. See the “ Introduction ” and “ The Tender Offer—Section 1. Terms
of the Offer .”
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WILL I HAVE TO PAY ANY FEES OR COMMISSIONS?
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If your Shares are registered in your name and you tender your Shares, you will not be obligated to pay brokerage
fees or commissions or similar expenses. If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee and your broker, dealer, commercial bank, trust company or other nominee tenders your Shares on your behalf,
your broker, dealer, commercial bank, trust company or other nominee may charge a fee for doing so. You should consult your broker, dealer, commercial bank, trust company or other nominee to determine whether any charges will apply. See the
“ Introduction ” and “ The Tender Offer—Section 3. Procedures for Tendering Shares .”
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WHY IS PURCHASER MAKING THE OFFER?
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Purchaser is making the Offer because it wants to acquire control of, and ultimately own, all of the issued and
outstanding Shares. Following the consummation of the Offer, we intend to complete the Merger as soon as practicable. Upon completion of the Merger, GLDD will become a wholly owned subsidiary of Parent. In addition, we intend to cause the Shares to
be delisted from the Nasdaq Global Select Market (“ Nasdaq ”) and deregistered under the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”), after the consummation of the Merger. See
“ The Tender Offer—Section 12. Purpose of the Offer and Plans for GLDD ,” “ The Tender Offer—Section 13. Certain Effects of the Offer ” and “ The Tender
Offer—Section 1. Terms of the Offer .”
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IS THERE A MINIMUM NUMBER OF SHARES THAT MUST BE TENDERED
IN ORDER FOR YOU TO PURCHASE ANY SHARES?
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Yes. The obligation of Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer is
subject to the various conditions set forth in “ The Tender Offer—Section 15. Conditions of the Offer, ” including the “Minimum Tender Condition” (as defined herein). The “ Minimum Tender
Condition ” means that the number of Shares validly tendered and not properly withdrawn prior to the expiration of the Offer, together with the number of Shares owned, directly or indirectly, by Parent, Purchaser and any of their respective
wholly-owned subsidiaries, shall equal at least one (1) Share more than a majority of the issued and outstanding Shares as of the expiration of the Offer, which, for this calculation, will exclude tendered Shares not yet “received”
(within the meaning of Section 251(h) of the DGCL).
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A more detailed discussion of the Minimum Tender Condition is contained in the “ Introduction ,”
“ The Tender Offer—Section 1. Terms of the Offer ” and “ The Tender Offer—Section 15. Conditions of the Offer .”
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WHAT ARE THE MOST SIGNIFICANT CONDITIONS OF THE OFFER?
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Consummation of the Offer is subject to the satisfaction (or, to the extent permitted, waiver) of certain
conditions set forth in the Merger Agreement, including, but not limited to:
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1. |
the Minimum Tender Condition;
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2. |
the waiting period (or any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the “ HSR Act ”) relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger shall have expired or been terminated as of the expiration of the Offer;
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3. |
no governmental entity shall have issued or entered any judgment, order, stipulation, settlement, injunction or
decree that is in effect and that enjoins or prohibits the making of the Offer or the consummation of the Offer or the Merger;
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4. |
the accuracy of the representations and warranties of GLDD set forth in the Merger Agreement (subject to
certain exceptions and qualifications described in the Merger Agreement);
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5. |
GLDD’s performance and compliance in all material respects with its agreements and covenants contained in
the Merger Agreement that are required to be performed or complied with by it at or prior to the Acceptance Time (as defined herein);
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6. |
Parent and Purchaser receiving a certificate on behalf of GLDD, signed by an executive officer of GLDD and
dated as of the Acceptance Time, to the effect that the conditions referenced in clauses (4) and (5) above and clause (7) below have been satisfied;
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7. |
no GLDD Material Adverse Effect (as defined herein) shall have occurred since the date of the Merger Agreement;
and
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8. |
the Merger Agreement not being terminated in accordance with its terms (collectively, (1) through (8), the
“ Offer Conditions ”).
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The Offer is not subject to any financing conditions.
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A more detailed discussion of the Offer Conditions is contained in the “ Introduction ,”
“ The Tender Offer—Section 1. Terms of the Offer ” and “ The Tender Offer—Section 15. Conditions of the Offer .”
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IS THERE AN AGREEMENT GOVERNING THE OFFER?
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Yes. GLDD, Parent and Purchaser have entered into the Merger Agreement. The Merger Agreement provides for, among
other things, the terms and conditions of the Offer and, following consummation of the Offer, the Merger. See “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Summary
of the Merger Agreement .”
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DOES PARENT HAVE FINANCIAL RESOURCES TO MAKE PAYMENTS IN THE OFFER?
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Yes. Parent and Purchaser estimate that the total amount of funds required from Parent and Purchaser to purchase
all Shares pursuant to the Offer, consummate the Merger and otherwise satisfy their respective obligations under the Merger Agreement (including payments for the settlement and cancellation of GLDD RSU Awards (as defined below), repayment of GLDD
indebtedness and payment of associated breakage costs, payment of retention and other bonus payments to GLDD employees) and pay associated estimated fees and expenses is approximately $1,621.1 million. Parent and Purchaser expect to fund such
payments from a combination of Parent’s available cash, borrowings under either Parent’s existing credit facilities and a committed unsecured bridge credit facility or from a refinancing and upsize of Parent’s existing credit
facilities. To the extent required, Parent will provide Purchaser with sufficient funds to satisfy Purchaser’s obligations. No alternative arrangements or alternative financing plans have been made. See “ The Tender
Offer—Section 9. Source and Amount
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of Funds ,” “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Financing ” and “ The
Tender Offer—Section 12. Purpose of the Offer and Plans for GLDD .”
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SHOULD PURCHASER’S
FINANCIAL CONDITION BE RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
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No, we do not believe it is relevant because:
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the consummation of the Offer is not subject to any financing condition;
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the Offer is being made for all issued and outstanding Shares solely for cash;
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if the Offer is consummated, we will acquire all remaining Shares in the Merger for the same cash price as was
paid in the Offer (i.e., the Offer Price), subject to any required tax withholdings; and
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we have all of the financial resources, including committed corporate loan facilities and cash on hand, to
purchase all Shares validly tendered and not properly withdrawn pursuant to the Offer and to provide funding for the Merger and related fees and expenses.
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See “ The Tender Offer—Section 9. Source and Amount of Funds ” and
“ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Financing .”
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HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
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Pursuant to the Merger Agreement, the Offer and withdrawal rights will expire at one minute past 11:59 p.m. New
York City time on March 31, 2026. You will have until one minute after 11:59 p.m. New York City time on March 31, 2026, to tender your Shares in the Offer, unless Purchaser extends the Offer, in which event you will have until the
Expiration Date as so extended. See “ The Tender Offer—Section 4. Withdrawal Rights ” and “ The Tender Offer—Section 1. Terms of the Offer .”
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CAN THE OFFER BE EXTENDED, AND UNDER WHAT CIRCUMSTANCES?
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Yes, the Offer can be extended. The Merger Agreement provides that, subject to the parties’ termination
rights under the Merger Agreement, (i) Purchaser may, in its sole discretion, and without the consent of GLDD or any other person, extend the Offer on one (1) or more occasions, for additional periods of up to ten (10) business days
per extension (or such longer period as the parties thereto may agree), if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or waived by Purchaser or Parent, in order to permit such Offer Condition to be satisfied, except
that, in the event that at any then-scheduled Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than the Offer Conditions that by their nature are only satisfied as of the Acceptance Time so long as such
conditions would be satisfied if the Acceptance Time were to then occur) then Purchaser shall not be permitted to extend the Offer more than four (4) times in the aggregate, (ii) Purchaser shall, and Parent shall cause Purchaser to, extend
the Offer for the minimum period required by applicable law, or by any rule, regulation, interpretation or position of the SEC, the staff thereof or Nasdaq applicable to the Offer, and (iii) if, at any then-scheduled Expiration Date, any Offer
Condition is not satisfied or, if permitted by the Merger Agreement, waived by Parent or Purchaser at such time, then if requested by GLDD, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for additional periods of ten
(10) business days per extension (or such other period as the parties may agree), except that, in the event that at any then-scheduled Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than
conditions that by their nature are only to be satisfied at the Acceptance Time, so long as such conditions would be satisfied if the Offer were to then expire), Purchaser is not required to, and Parent is not required to cause Purchaser to, further
extend the Offer more than four (4) times in the aggregate; provided that Purchaser is not required to,
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4
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and Parent is not required to cause Purchaser to, extend the Offer beyond the Outside Date (as defined in the Merger Agreement) or the date the Merger Agreement is validly terminated in
accordance with the terms thereof.
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See “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain
Other Agreements—Extensions of the Offer ” and “ The Tender Offer—Section 15. Conditions of the Offer .”
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HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
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If Purchaser extends the Offer, we will inform Broadridge Corporate Issuer Solutions, LLC, the depositary and
paying agent for the Offer (the “ Depositary and Paying Agent ”), of that fact and will issue a press release giving the new Expiration Date no later than 9:00 a.m. New York City time on the next business day after the day on which
the Offer was previously scheduled to expire. See “ The Tender Offer—Section 1. Terms of the Offer .”
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WILL THERE BE A SUBSEQUENT OFFERING PERIOD?
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No. Pursuant to Section 251(h) of the DGCL, we expect to complete the Merger as soon as practicable on the
same business day as the Acceptance Time without a subsequent offering period.
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HOW DO I TENDER MY SHARES?
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If you hold your Shares directly as the registered owner, you can tender your Shares in the Offer by
(i) delivering the certificates representing your Shares, together with a completed Letter of Transmittal and any other documents required by the Letter of Transmittal, to the Depositary and Paying Agent, or (ii) for Shares held in
book-entry form, delivering a Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, in each case, not later than the Expiration Date as further described in “ The Tender
Offer—Section 3. Procedures for Tendering Shares ”. The Letter of Transmittal is enclosed with this Offer to Purchase.
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If you hold your Shares in “street name” (i.e., through a broker, dealer, commercial bank, trust
company or other nominee), in order to tender your Shares in the Offer you must contact the institution that holds your Shares and give instructions that your Shares be tendered no later than the Expiration Date. You should contact the institution
that holds your Shares for more details.
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In all cases, payment for tendered Shares will be made only after timely receipt by the Depositary and Paying
Agent of (i) certificates for such Shares and a properly completed and duly executed Letter of Transmittal and any other required documents for such Shares, or (ii) a Letter of Transmittal, properly completed and duly executed, together
with any required signature guarantees (or an Agent’s Message (as defined herein) in lieu of a Letter of Transmittal) for Shares held in book-entry form, in each case, as described in “ The Tender
Offer—Section 3. Procedures for Tendering Shares. ” See also “ The Tender Offer—Section 2. Acceptance for Payment and Payment for Shares .”
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UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
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You may withdraw previously tendered Shares any time prior to one minute after 11:59 p.m. New York City time on
March 31, 2026 or the date to which Purchaser further extends the Offer. See “ The Tender Offer—Section 4. Withdrawal Rights .”
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In addition, pursuant to Section 14(d)(5) of the Exchange Act, Shares may be withdrawn at any time after
May 3, 2026, which is the 60th day after the date of the commencement of the Offer, unless such Shares have already been accepted for payment by Purchaser pursuant to the Offer.
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5
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
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To withdraw previously tendered Shares, you must deliver a written or facsimile notice of withdrawal with the
required information to the Depositary and Paying Agent while you still have the right to withdraw. If you tendered Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker,
dealer, commercial bank, trust company or other nominee to arrange for the withdrawal of your Shares. See “ The Tender Offer—Section 4. Withdrawal Rights .”
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WHAT DOES THE GLDD BOARD THINK OF THE OFFER?
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After careful consideration, the GLDD Board has unanimously recommended that you accept the Offer and tender your
Shares pursuant to the Offer.
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GLDD’s full statement on the Offer is set forth in its Solicitation/Recommendation Statement on Schedule 14D-9 (the “ Schedule 14D-9 ”), which it has filed with the Securities and Exchange Commission on March 4, 2026. See also the
“ Introduction ” below.
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WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT TENDERED?
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If we accept Shares for payment pursuant to the Offer, then the Minimum Tender Condition will have been satisfied
and we will hold a sufficient number of Shares to effect the Merger without a vote or meeting by GLDD Stockholders under the DGCL.
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If the Merger occurs, GLDD will become a wholly owned subsidiary of Parent and each issued and then outstanding
Share (other than Shares (i) held by GLDD in treasury or owned of record by GLDD or any subsidiary of GLDD, and Shares owned of record by Parent, Purchaser (including Shares irrevocably accepted for payment by Purchaser in the Offer) or any of
their respective wholly-owned subsidiaries (in each case, other than those held on behalf of any third party), which shall be canceled and cease to exist, with no payment being made with respect thereto and (ii) held by GLDD Stockholders who
have properly demanded appraisal rights of such Shares under, and who comply in all respects with, Section 262 of the DGCL and have not validly revoked such demand) will automatically be converted into the right to receive an amount in cash
equal to the Offer Price, without interest thereon and subject to any required tax withholding (the “ Merger Consideration ”). For more information, see the “ Introduction ” below.
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Because the Merger will be governed by Section 251(h) of the DGCL, no stockholder vote will be required to
consummate the Merger. As required by Section 251(h) of the DGCL, the Merger Agreement provides that the Merger shall be effected as soon as practicable on the same business day as the Acceptance Time. See the “ Introduction ”
below and “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—The Merger Closing and Effective Time ,” “ The Tender
Offer—Section 12. Purpose of the Offer and Plans for GLDD—Merger Without a Stockholder Vote ” and “ The Tender Offer—Section 16. Certain Legal Matters; Regulatory Approvals;
Appraisal Rights .”
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IF THE OFFER IS COMPLETED, WILL GLDD CONTINUE AS A PUBLIC COMPANY?
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No. Immediately following consummation of the Offer and satisfaction or waiver (to the extent permitted by
applicable law) of the conditions to the Merger, we expect to complete the Merger pursuant to applicable provisions of the DGCL, after which GLDD will be a wholly owned subsidiary of Parent, the Shares will be delisted from Nasdaq, GLDD’s
obligations to file periodic reports under the Exchange Act will be terminated, and GLDD will be privately held. See “ The Tender Offer—Section 13. Certain Effects of the Offer .”
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6
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
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If you decide not to tender your Shares in the Offer and the Merger occurs as described above, you will receive
in the Merger the right to receive the Merger Consideration, which is the same amount as if you had tendered your Shares in the Offer (i.e., the Offer Price).
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Subject to the satisfaction or waiver of the Offer Conditions, if we purchase Shares in the Offer, we are
obligated under the Merger Agreement to cause the Merger to occur. See “ The Tender Offer—Section 13. Certain Effects of the Offer .”
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Following the Offer, Shares may no longer constitute “margin securities” for purposes of the margin
regulations of the Federal Reserve Board, in which case your Shares may no longer be used as collateral for loans made by brokers. See “ The Tender Offer—Section 13. Certain Effects of the Offer .”
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WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
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On March 3, 2026, the last full trading day prior to the date of this Offer to Purchase, the last reported
closing price per Share reported on Nasdaq was $16.98, which represents a 0.1% discount to the Offer Price of $17.00 per Share. See “ The Tender Offer—Section 6. Price Range of Shares .”
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The Offer Price of $17.00 per Share represents a premium of twenty-five percent (25%) to the volume-weighted
average price for the 90-day period prior to February 10, 2026, the last full trading day before Parent, Purchaser and GLDD publicly announced their entry into the Merger Agreement.
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IF I ACCEPT THE OFFER, WHEN AND HOW WILL I GET PAID?
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If the Offer Conditions as set forth in the “ Introduction ” and “ The Tender
Offer—Section 15. Conditions of the Offer ” are satisfied or waived and Purchaser consummates the Offer and accepts your Shares for payment, we will pay you a dollar amount in cash equal to the number of Shares you
tendered multiplied by the Offer Price, without interest and subject to any required tax withholdings, as promptly as practicable following the time at which Purchaser accepts for payment Shares tendered in the Offer (and in any event within two
(2) business days). See “ The Tender Offer—Section 1. Terms of the Offer ” and “ The Tender Offer—Section 2. Acceptance for Payment and Payment for Shares .”
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WILL I BE TAXED ON CASH RECEIVED IN EXCHANGE FOR SHARES PURSUANT TO THE OFFER OR THE MERGER?
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In general, the exchange of Shares for cash pursuant to the Offer or the Merger will be a taxable transaction for
U.S. federal income tax purposes. A U.S. Holder (as defined below in “ The Tender Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the Offer and the Merger ”) who sells Shares pursuant to the
Offer or receives cash in exchange for Shares pursuant to the Merger generally will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between (i) the amount of cash received
(determined before deduction of any applicable withholding taxes) and (ii) the U.S. Holder’s adjusted tax basis in the Shares sold pursuant to the Offer or converted pursuant to the Merger. See “ The Tender
Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the Offer and the Merger ” for a more detailed discussion of certain U.S. federal income tax considerations generally applicable to the Offer and the
Merger.
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If you are a Non-U.S. Holder (as defined below in “ The Tender
Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the Offer and the Merger ”), you generally will not be subject to U.S. federal income tax with respect to the sale of Shares pursuant to the Offer or
receipt of cash in exchange for Shares pursuant to the Merger unless you have certain connections to the United States described in detail below, but you may be subject to backup withholding tax unless you comply with certain certification
procedures or otherwise establish a valid exemption from backup withholding tax.
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7
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See “ The Tender Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the Offer and the Merger ” for a more detailed discussion of certain
U.S. federal income tax considerations generally applicable to the Offer and the Merger.
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The U.S. federal, state,
local and non-U.S. income and other tax consequences of the Offer and Merger to holders or beneficial owners of GLDD RSU Awards with respect to such GLDD RSU Awards is not discussed herein, and such holders
and beneficial owners of GLDD RSU Awards are encouraged to consult their own tax advisors regarding such tax consequences.
WILL I HAVE THE RIGHT
TO HAVE MY SHARES APPRAISED?
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No appraisal rights are available to GLDD Stockholders in connection with the Offer. However, if the Offer is
successful and the Merger is consummated, GLDD Stockholders and beneficial owners of Shares who: (i) did not tender their Shares in the Offer (or, if tendered, validly and subsequently withdrew such Shares prior to the time Purchaser accepts
properly tendered Shares for purchase and did not otherwise waive their appraisal rights), (ii) comply with the applicable requirements and procedures of Section 262 of the DGCL, and (iii) do not thereafter withdraw their demand for
appraisal of such Shares or otherwise lose their appraisal rights, in each case, in accordance with the DGCL, will be entitled to demand appraisal of their Shares and receive in lieu of the consideration payable in the Merger a cash payment equal to
the “fair value” of their Shares, as determined by the Delaware Court of Chancery, in accordance with Section 262 of the DGCL plus interest, if any, on the amount determined to be the fair value.
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The “fair value” of the Shares as determined by the Delaware Court of Chancery could be based upon
considerations other than, or in addition to, the price paid in the Offer and the Merger and the market value of such Shares. GLDD Stockholders and beneficial owners of Shares should recognize that the value determined in an appraisal proceeding of
the Delaware Court of Chancery could be higher or lower than, or the same as, the Offer Price (which is the same value as the Merger Consideration) and that an investment banking opinion as to the fairness, from a financial point of view, of the
consideration payable in a sale transaction, such as the Offer and the Merger, is not an opinion as to, and does not otherwise address, fair value under the DGCL. Moreover, Parent, Purchaser and GLDD may argue in an appraisal proceeding that, for
purposes of such proceeding, the “fair value” of such Shares is less than the Offer Price.
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Any GLDD Stockholder or beneficial owner of Shares who desires to exercise appraisal rights should review
carefully Section 262 of the DGCL and is urged to consult his, her or its legal advisor before electing or attempting to exercise such rights.
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The foregoing summary of appraisal rights under the DGCL does not purport to be a statement of the procedures to
be followed by GLDD Stockholders or beneficial owners of Shares desiring to demand any appraisal rights under Delaware law. The preservation and demand of appraisal rights require strict and timely adherence to the applicable provisions of Delaware
law, which are contained in Section 262 of the DGCL and will be further summarized in a notice of the availability of appraisal rights to be sent by GLDD. The foregoing discussion is not a complete statement of law pertaining to appraisal
rights under Delaware law and is qualified in its entirety by reference to Delaware law, including without limitation, Section 262 of the DGCL, a copy of which may be accessed without subscription or cost at the following publicly available
website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. For more information regarding appraisal rights, see “ The Tender Offer—Section 16. Certain Legal Matters; Regulatory Approvals; Appraisal
Rights .”
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If you tender your Shares in the Offer, you will not be entitled to demand appraisal rights with respect to your
Shares but, instead, subject to the conditions to the Offer, you will receive the Offer Price for your Shares.
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WITH WHOM MAY I SPEAK
IF I HAVE QUESTIONS ABOUT THE OFFER?
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You can call the Information Agent, toll-free at (800) 322-2885. See the back cover of this Offer to Purchase.
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8
To All Holders of Shares of
Great Lakes Dredge & Dock Corporation
INTRODUCTION
Purchaser, a wholly owned subsidiary of Parent, is making the Offer to acquire all issued and outstanding Shares for the Offer Price, upon the
terms and subject to the conditions described in this Offer to Purchase and the related Letter of Transmittal. Subject to the terms of the Merger Agreement, the Offer Price will be paid subject to any required tax withholdings and without interest.
The Offer is being made pursuant to the Merger Agreement, pursuant to which, after the completion of the Offer and the satisfaction or, to the extent permitted by the Merger Agreement, waiver of certain conditions, Purchaser will be merged with and
into GLDD, without a meeting, vote or any further action of GLDD Stockholders in accordance with Section 251(h) of the DGCL, whereupon the separate existence of Purchaser will cease and GLDD will survive the merger as a wholly owned subsidiary
of Parent (such corporation, the “ Surviving Corporation ”, such merger, the “ Merger ” and the Merger, together with the Offer and the other transactions contemplated by the Merger Agreement, the
“ Transactions ”). The date and time at which the Merger becomes effective is referred to in this Offer to Purchase as the “ Effective Time ”. Upon the terms and subject to the conditions of the Offer and the Merger
Agreement, including the satisfaction or, to the extent permitted by the Merger Agreement, waiver of the Offer Conditions, Purchaser will, and Parent will cause Purchaser to, (i) immediately, and in no event later than 8:30 a.m. New York City
time one (1) business day (determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Expiration Date, irrevocably accept for purchase and payment all Shares validly tendered (and not
validly withdrawn) pursuant to the Offer (such acceptance, the “ Offer Closing ”, and the date and time at which the Offer Closing occurs, the “ Acceptance Time ”) and (ii) pay (subject to any required tax
withholdings) for all such Shares as promptly as practicable (and in any event within two (2) business days) after the Acceptance Time.
If your Shares are registered in your name and you tender your Shares directly to the Depositary and Paying Agent, you will not be obligated
to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. If you hold your Shares through a broker, dealer,
commercial bank, trust company or other nominee you should consult with such institution as to whether they charge any service fees or commissions.
We will pay all charges and expenses of the Depositary and Paying Agent and the Information Agent.
Purchaser will not be required to accept for payment or, prior to the Acceptance Time and subject to any applicable rules and regulations of
the SEC, including Rule 14e-1(c) under the Exchange Act, to pay for any Shares tendered pursuant to the Offer, if:
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(i) |
prior to the Expiration Date, the Minimum Tender Condition shall have not been satisfied or waived in writing
by Parent as of the Expiration Date; or
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(ii) |
any of the conditions set forth in “ The Tender Offer—Section 15. Conditions
of the Offer ” shall exist or shall have occurred and be continuing at the Expiration Date.
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If the Merger
Agreement has been validly terminated in accordance with the termination provisions therein, Purchaser will, and Parent will cause Purchaser to, promptly (and in no event more than one (1) business day (determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) irrevocably and unconditionally terminate the Offer (prior to the Acceptance Time and subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) and not acquire any Shares pursuant to the Offer. If the Offer is terminated or withdrawn by Purchaser in accordance with the terms of the Merger Agreement, Purchaser will promptly
return, and shall cause the Depositary and Paying Agent to return, in accordance with applicable laws, all tendered Shares to the registered holders thereof.
9
Purchaser and Parent reserve the right to waive certain of the conditions to the Offer in
their sole discretion to the extent permitted by applicable law (other than the Minimum Tender Condition, which may be waived by Purchaser only with the prior written consent of GLDD, or the Competition Laws Condition (as defined herein), the
Injunction Condition (as defined herein) or the Termination Condition (as defined herein)). See “ The Tender Offer—Section 15. Conditions of the Offer .”
Pursuant to the Merger Agreement, the Offer and withdrawal rights will expire at one minute past 11:59 p.m. New York City time on March 31,
2026. See “ The Tender Offer—Section 1. Terms of the Offer ,” “ The Tender Offer—Section 15. Conditions of the Offer ” and “ The Tender
Offer—Section 16. Certain Legal Matters; Regulatory Approvals; Appraisal Rights .”
After careful
consideration, the GLDD Board has unanimously: (i) determined that it is in the best interests of GLDD and GLDD Stockholders for GLDD to enter into the Merger Agreement, and declared the Merger Agreement and the Transactions, including the
Offer and the Merger, advisable, (ii) approved the execution, delivery and performance of, and adopted the Merger Agreement and the consummation of the Transactions, including the Merger and the Offer, in accordance with the DGCL,
(iii) resolved that the Merger shall be effected under and governed by Section 251(h) of the DGCL, and (iv) recommended that GLDD Stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
For reasons considered by the GLDD Board, see the Schedule 14D-9 filed with the Securities and
Exchange Commission on March 4, 2026 in connection with the Offer, a copy of which (without certain exhibits) is being furnished to GLDD Stockholders concurrently herewith.
The Offer is being made in connection with the Merger Agreement, pursuant to which, after the completion of the Offer and the satisfaction or
waiver of certain conditions, the Merger will be effected. The Merger will become effective at the time when the certificate of merger has been duly filed with the Secretary of State of the State of Delaware or at such other date and time as may be
agreed by Parent, GLDD and Purchaser and specified in the certificate of merger.
Pursuant to the Merger Agreement, at the Effective Time,
by virtue of the Merger and without any action required by any party to the Merger Agreement or any GLDD Stockholder, each Share issued and outstanding immediately prior to the Effective Time other than Shares (i) held by GLDD in treasury or
owned of record by GLDD or any subsidiary of GLDD and Shares owned of record by Parent, Purchaser (including Shares irrevocably accepted for payment by Purchaser in the Offer) or any of their respective wholly-owned subsidiaries (in each case, other
than those held on behalf of any third party), which shall be canceled and cease to exist, with no payment being made with respect thereto and (ii) held by any GLDD Stockholders who have properly demanded appraisal rights of such Shares under,
and who comply in all respects with, Section 262 of the DGCL and have not validly revoked such demand, will automatically be converted into the right to receive the Merger Consideration.
The Merger Agreement is more fully described in “ The Tender Offer—Section 11. Summary of the Merger
Agreement and Certain Other Agreements ,” which also contains a discussion of the treatment of GLDD RSU Awards in the Merger. “ The Tender Offer—Section 5. Certain U.S. Federal Income Tax Consequences of the
Offer and the Merger ” below describes certain U.S. federal income tax consequences generally applicable to Holders (as defined below in “ The Tender Offer—Section 5. Certain U.S. Federal Income Tax
Consequences of the Offer and the Merger ”) whose Shares are tendered and accepted for purchase pursuant to the Offer or whose Shares are converted into the right to receive cash in the Merger.
Because the Merger will be consummated in accordance with Section 251(h) of the DGCL, approval of the Merger will not require a vote of
GLDD Stockholders. Section 251(h) of the DGCL provides that stockholder approval of a merger is not required if certain requirements are met, including that: (i) the acquiring company consummates a tender offer for any and all of the
outstanding stock of GLDD that, absent Section 251(h) of the
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DGCL, would be entitled to vote on the merger, (ii) following the consummation of such tender offer, the stock irrevocably accepted for purchase pursuant to such offer and received by the
Depositary and Paying Agent prior to expiration of such offer, together with the stock otherwise owned by the consummating corporation or its affiliates and any “rollover stock” (as defined in Section 251(h) of the DGCL), equals at
least such percentage of the stock of GLDD to be acquired that, absent Section 251(h) of the DGCL, would be required to adopt the Merger Agreement, and (iii) each outstanding share (other than “excluded stock” (as defined in
Section 251(h) of the DGCL)) of GLDD that is subject of and not irrevocably accepted for purchase in such offer is converted in such merger into the right to receive the same amount and kind of cash, property, rights or securities paid for such
shares pursuant to such offer. If the Minimum Tender Condition is satisfied and we accept Shares for payment pursuant to the Offer, we will hold a sufficient number of Shares to ensure that GLDD will not be required to submit the adoption of the
Merger Agreement to a vote of GLDD Stockholders. As a result of the Merger, GLDD will cease to be a publicly traded company and will become a wholly owned subsidiary of Parent. See “ The Tender Offer—Section 11.
Summary of the Merger Agreement and Certain Other Agreements ,” “ The Tender Offer—Section 12. Purpose of the Offer and Plans for GLDD—Merger Without a Stockholder Vote ” and “ The
Tender Offer—Section 16. Certain Legal Matters; Regulatory Approvals; Appraisal Rights .”
The Merger
Agreement, this Offer to Purchase and the related Letter of Transmittal contain important information and each document should be read carefully and in their entirety before any decision is made with respect to the Offer.
THE TENDER OFFER
1. TERMS OF THE OFFER.
The Offer is being made pursuant to the Merger Agreement, pursuant to which, after the completion of the Offer and the satisfaction or, to the
extent permitted under the Merger Agreement, waiver of certain conditions, Purchaser will be merged with and into GLDD, without a meeting, vote or any further action of GLDD’s Stockholders in accordance with Section 251(h) of DGCL,
whereupon the separate existence of Purchaser will cease and GLDD will survive the merger as a wholly owned subsidiary of Parent. Upon the terms and subject to the conditions of the Offer and the Merger Agreement, including the satisfaction or, to
the extent permitted, waiver of the conditions of the Offer, Purchaser will (and Parent will cause Purchaser to), (i) immediately following, and in no event later than 8:30 a.m. New York City time one (1) business day (determined as set forth
in Rule 14d-1(g)(3) under the Exchange Act) after the Expiration Date, irrevocably accept for purchase and payment all Shares validly tendered (and not validly withdrawn in accordance with the procedures set
forth in “ The Tender Offer — Section 4. Withdrawal Rights ”) pursuant to the Offer and (ii) as promptly as practicable after the Acceptance Time (and in any event within two
(2) business days (determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter), pay for such Shares.
The Offer will expire at one minute after 11:59 p.m. New York City time on March 31, 2026, the date that is twenty (20) business days
(determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) from commencement of the Offer, unless extended in accordance with the terms of the Merger Agreement and the applicable rules and
regulations of the SEC, in which event the term “Expiration Date” will mean the date to which the Expiration Date is so extended.
Purchaser is offering to pay an Offer Price of $17.00 per Share in cash to you, without interest and subject to any required tax withholdings,
upon the terms and subject to the conditions contained in this Offer to Purchase and the related Letter of Transmittal.
The Offer is
conditioned upon the satisfaction of the Minimum Tender Condition and the other conditions described in “ The Tender Offer—Section 15. Conditions of the Offer .” We may, subject to the terms and conditions
of the Merger Agreement, terminate the Offer without purchasing any Shares if
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certain events described in “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Summary of the Merger
Agreement—Termination ” occur.
Pursuant to the Merger Agreement, Purchaser has expressly reserved the right to:
(i) increase the amount of cash constituting the Offer Price and/or (ii) waive, in whole or in part, any Offer Condition or modify the terms of the Offer not inconsistent with the terms of the Merger Agreement, except that, without the
prior written consent of GLDD, Purchaser may not (and Parent will not permit Purchaser to) (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price (other than as permitted by the Merger Agreement), (c) amend,
modify or waive the Minimum Tender Condition, the Competition Laws Condition (as defined herein), the Injunction Condition (as defined herein) and the Termination Condition (as defined herein), (d) add to the Offer Conditions or other conditions of
the Offer or amend, modify or supplement any Offer Condition, (e) except as provided in the Merger Agreement with respect to the extension of the Offer, terminate, extend, or otherwise modify the Expiration Date, (f) change the form of
consideration payable in the Offer, (g) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse to GLDD Stockholders or that would reasonably be expected to cause any delay of Parent or Purchaser to consummate
the Offer, or (h) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
If, on or before the Expiration Date, Purchaser increases the consideration being paid for Shares accepted for payment in the Offer, such
increased consideration will be paid to all stockholders whose Shares are purchased in the Offer, whether or not such Shares were tendered before the announcement of the increase in consideration.
The Merger Agreement provides that (i) Purchaser may, in its sole discretion, and without the consent of GLDD or any other person, extend
the Offer on one or more occasions, for additional periods of up to ten (10) business days (as determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) per extension (or such longer period as
the parties may agree), if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or waived by Purchaser or Parent, in order to permit such Offer Condition to be satisfied, except that, in the event that at any then-scheduled
Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than the Offer Conditions that by their nature are only satisfied as of the Acceptance Time so long as such conditions would be satisfied if the
Acceptance Time were to then occur) then Purchaser shall not be permitted to extend the Offer more than four (4) times in the aggregate and (ii) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for the minimum period
required by applicable law, or by any rule, regulation, interpretation or position of the SEC, the staff thereof or Nasdaq applicable to the Offer, and (iii) if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or, if
permitted by the Merger Agreement, waived by Parent or Purchaser at such time, then if requested by GLDD, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for additional periods of ten (10) business days (determined as set
forth in Rule 14d-1(g)(3) under the Exchange Act) per extension (or such other period as the parties may agree), except that, in the event that at any then-scheduled Expiration Date, the Minimum Tender
Condition is the only Offer Condition not satisfied (other than conditions that by their nature are only to be satisfied at the Acceptance Time, so long as such conditions would be satisfied if the Offer were to then expire), Purchaser is not
required to, and Parent is not required to cause Purchaser to, further extend the Offer more than four (4) times in the aggregate; provided that Purchaser is not required to, and Parent is not required to cause Purchaser to, extend the Offer
beyond the Outside Date or the date the Merger Agreement is validly terminated in accordance with the terms thereof. See “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other
Agreements—Extensions of the Offer ” and “ The Tender Offer—Section 15. Conditions of the Offer .”
Except as set forth above, there can be no assurance that we will be required under the Merger Agreement to extend the Offer. During any
extension of the initial offering period pursuant to the paragraphs above, all Shares previously tendered and not validly withdrawn will remain subject to the Offer and subject to withdrawal rights. See “ The Tender
Offer—Section 4. Withdrawal Rights .”
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If, subject to the terms of the Merger Agreement, we make a material change in the terms of
the Offer or the information concerning the Offer, or if we waive a material condition of the Offer, we will disseminate additional tender offer materials and extend the Offer if and to the extent required by Rules
14d-3(b)(1), 14d-4(d), 14d-6(c) and l4e-1 under the Exchange Act or otherwise. The
minimum period during which a tender offer must remain open following material changes in the terms of the tender offer or the information concerning the tender offer, other than a change in the consideration offered or a change in the percentage of
securities sought, will depend upon the facts and circumstances, including the relative materiality of the terms or information changes. With respect to a change in the consideration offered or a change in the percentage of securities sought, a
tender offer generally must remain open for a minimum of ten (10) business days following such change to allow for adequate disclosure to stockholders.
We expressly reserve the right, in our sole discretion, subject to the terms and upon the conditions of the Merger Agreement and the
applicable rules and regulations of the SEC, to not accept for payment any Shares if, at the expiration of the Offer, any of the conditions to the Offer set forth in “ The Tender Offer—Section 15. Conditions of the
Offer ” have not been satisfied. Under certain circumstances, Parent and Purchaser may terminate the Merger Agreement and the Offer.
Any extension, waiver or amendment of the Offer or termination of the Offer will be followed, as promptly as practicable, by public
announcement thereof, such announcement in the case of an extension to be issued not later than 9:00 a.m. New York City time on the next business day after the Expiration Date in accordance with the public announcement requirements of Rules 14d-3(b)(1), 14d-4(d), 14d-6(c), and 14e-1(d) under the Exchange Act. Without limiting our
obligation under such rule or the manner in which we may choose to make any public announcement, we currently intend to make announcements by issuing a press release to the PR Newswire (or such other national media outlet or outlets we deem prudent)
and making any appropriate filing with the SEC.
Promptly following the purchase of Shares in the Offer, we expect to complete the Merger
without a vote of GLDD Stockholders pursuant to Section 251(h) of the DGCL.
GLDD has agreed to provide us with its list of
stockholders and security position listings for the purpose of disseminating the Offer to GLDD Stockholders. This Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of Shares whose names appear on GLDD’s
stockholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a
clearing agency’s security position listing, for subsequent transmittal to beneficial owners of Shares.
2.
ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Subject to the satisfaction or, to the extent permitted, waiver of all the conditions
to the Offer set forth in “ The Tender Offer—Section 15. Conditions of the Offer ,” we will, immediately following, and in no event later than 8:30 a.m. New York City time one (1) business day after the
Expiration Date, irrevocably accept for purchase and payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer and, as promptly as practicable after the Acceptance Time (and in any event within two (2) business
days), pay for such Shares.
In all cases, payment for Shares tendered and accepted for purchase and payment pursuant to the Offer will be
made only after timely receipt by the Depositary and Paying Agent of (i) certificates representing such Shares or confirmation of the book-entry transfer of such Shares into the Depositary and Paying Agent’s account at The Depository
Trust Company (“ DTC ”) pursuant to the procedures set forth in “ The Tender Offer—Section 3. Procedures for Tendering Shares ,” (ii) a Letter of Transmittal, properly completed and duly
executed, with any required signature guarantees in customary form (or, an Agent’s Message in lieu of the Letter of Transmittal),
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and (iii) any other documents required by the Letter of Transmittal or any other customary documents required by Depositary and Paying Agent. See “ The Tender
Offer—Section 3. Procedures for Tendering Shares .”
For purposes of the Offer, if and when Purchaser
gives oral or written notice to the Depositary and Paying Agent of its acceptance for payment of such Shares pursuant to the Offer, then Purchaser has accepted for payment and thereby purchased Shares validly tendered and not validly withdrawn
pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Exchange Fund (as defined herein) (subject to any required tax
withholdings) therefor with the Depositary and Paying Agent, which will act as agent for the tendering stockholders for purposes of receiving payments from us and transmitting such payments to the tendering stockholders. Under no circumstances
will interest be paid on the Offer Price for Shares, regardless of any extension of the Offer or any delay in payment for Shares .
If
any tendered Shares are not accepted for payment pursuant to the terms and conditions of the Offer for any reason, or if certificates are submitted for more Shares than are tendered, certificates for such unpurchased Shares will be returned (or new
Shares in book-entry form for the Shares not tendered will be issued), without expense to the tendering stockholder (or, in the case of Shares tendered by book-entry transfer into the Depositary and Paying Agent’s account at DTC pursuant to
the procedures set forth in “ The Tender Offer—Section 3. Procedures for Tendering Shares ,” such Shares will be credited to an account maintained with DTC) promptly following expiration or termination of
the Offer.
3. PROCEDURES FOR TENDERING SHARES.
Valid Tender of Shares . Except as set forth below, to validly tender Shares pursuant to the Offer, a properly completed and duly
executed Letter of Transmittal in accordance with the instructions of the Letter of Transmittal, with any required signature guarantees, or an Agent’s Message (in lieu of the Letter of Transmittal), and any other documents required by the
Letter of Transmittal and any other customary documents required by the Depositary and Paying Agent, must be received by the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase prior to the
expiration of the Offer and either (i) certificates representing Shares tendered must be properly delivered to the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase prior to the expiration
of the Offer or (ii) such Shares must be properly delivered pursuant to the procedures for book-entry transfer described below and a confirmation of such delivery received by the Depositary and Paying Agent (which confirmation must include an
Agent’s Message if the tendering GLDD Stockholder has not delivered a Letter of Transmittal), in each case, prior to the Expiration Date. The term “ Agent’s Message ” means a message, transmitted by DTC to, and received
by, the Depositary and Paying Agent and forming a part of a Book-Entry Confirmation (as defined herein), which states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares which are the subject of such
Book-Entry Confirmation (as defined herein) that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that Purchaser may enforce such agreement against the participant.
Book-Entry Transfer . The Depositary and Paying Agent will take steps to establish and maintain an account with respect to the Shares at
DTC for purposes of the Offer. Any financial institution that is a participant in DTC’s systems may make a book-entry transfer of Shares by causing DTC to transfer such Shares into the Depositary and Paying Agent’s account in accordance
with DTC’s procedures for such transfer. However, although delivery of Shares may be effected through book-entry transfer, either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees,
and any other required documents, or an Agent’s Message in lieu of the Letter of Transmittal must be transmitted to and received by the Depositary and Paying Agent in accordance with DTC’s procedures prior to the Expiration Date. The
confirmation of a book-entry transfer of Shares into the Depositary and Paying Agent’s account at DTC as described above is referred to herein as a “ Book-Entry Confirmation .”
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Delivery of documents to DTC in accordance with DTC’s procedures does not
constitute delivery to the Depositary and Paying Agent.
No Guaranteed Delivery. We are not providing for guaranteed delivery
procedures. Therefore, GLDD Stockholders must allow sufficient time for the necessary tender procedures to be completed during normal business hours of DTC, which end earlier than the Expiration Date. Normal business hours of DTC are between 8:00
a.m. and 5:00 p.m., New York City time, Monday through Friday. GLDD Stockholders must tender their Shares in accordance with the procedures set forth in this Offer to Purchase and the related Letter of Transmittal prior to the Expiration Date.
Tenders received by the Depositary and Paying Agent after the Expiration Date will be disregarded and of no effect.
Signature
Guarantees . Except as otherwise provided below, all signatures on a Letter of Transmittal must be guaranteed by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in
good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges
Medallion Program (each, an “ Eligible Institution ”). Signatures on a Letter of Transmittal need not be guaranteed: (i) if the Letter of Transmittal is signed by the registered owner(s) of Shares tendered therewith and such
registered owner has not completed the box entitled “ Special Payment Instructions ” or the box entitled “ Special Delivery Instructions ” on the Letter of Transmittal, or (ii) if such Shares are tendered for
the account of an Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal. If the certificates for Shares are registered in the name of a person other than the signer of the Letter of Transmittal, or if payment is to be made or
certificates for Shares not tendered or not accepted for payment are to be returned to a person other than the registered owner of the certificates surrendered, then the signature on the Letter of Transmittal, in either case, must be guaranteed as
described above. See Instructions 1 and 5 of the Letter of Transmittal.
Certificates representing Shares should not be forwarded
separately to the Depositary and Paying Agent, and a properly completed and duly executed Letter of Transmittal must accompany each delivery of certificates.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE
ELECTION AND RISK OF THE TENDERING STOCKHOLDER. DELIVERY OF ALL SUCH DOCUMENTS WILL BE DEEMED MADE, AND RISK OF LOSS THEREOF SHALL PASS, ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY AND PAYING AGENT (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER,
BY BOOK-ENTRY CONFIRMATION). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY
PRIOR TO THE EXPIRATION DATE.
Other Requirements . Notwithstanding any provision of the Merger Agreement, Purchaser will pay
for Shares tendered (and not validly withdrawn) pursuant to the Offer only after timely receipt by the Depositary and Paying Agent of: (i) certificates for, or a timely Book-Entry Confirmation with respect to, such Shares, (ii) a Letter of
Transmittal, properly completed and duly executed, with any required signature guarantees (or an Agent’s Message in lieu of the Letter of Transmittal), and (iii) any other documents required by the Letter of Transmittal or any other
customary documents required by the Depositary and Paying Agent. Accordingly, tendering stockholders may be paid at different times depending upon when certificates for Shares or Book-Entry Confirmations with respect to Shares, as the case may be,
and other documents described above are actually received by the Depositary and Paying Agent. Under no circumstances will Purchaser pay interest on the Offer Price of Shares, regardless of any extension of the Offer or any delay in making such
payment . If your Shares are held in “street name” (i.e., through a broker, dealer, commercial bank, trust company or other
15
nominee), your Shares can be tendered by your nominee by book-entry transfer through the Depositary and Paying Agent following the receipt of an Agent’s Message in lieu of the Letter of
Transmittal.
Binding Agreement . Our acceptance for payment of Shares tendered pursuant to one of the procedures described above
will constitute a binding agreement between the tendering stockholder and us upon the terms and subject to the conditions of the Offer.
Appointment as Proxy . By executing and delivering a Letter of Transmittal as set forth above (or, by delivery of an Agent’s
Message in lieu of a Letter of Transmittal), the tendering stockholder irrevocably appoints Purchaser’s designees as such stockholder’s proxies, each with full power of substitution, to the full extent of such stockholder’s rights
with respect to the Shares tendered by such stockholder and accepted for payment by us and with respect to any and all other Shares or other securities issued or issuable in respect of such Shares on or after the date of the Merger Agreement. All
such proxies and powers of attorney will be considered coupled with an interest in the tendered Shares. Such appointment is effective when, and only to the extent that, we accept for payment Shares tendered by such stockholder as provided herein.
Upon the effectiveness of such appointment, all prior powers of attorney, proxies and consents given by such stockholder will be revoked, and no subsequent powers of attorney, proxies and consents may be given (and, if given, will not be deemed
effective). Our designees will, with respect to the Shares or other securities and rights for which the appointment is effective, be empowered to exercise all voting and other rights of such stockholder as they, in their sole discretion, may deem
proper at any annual, special, adjourned or postponed meeting of GLDD Stockholders, by written consent in lieu of any such meeting or otherwise. We reserve the right to require that, in order for Shares to be deemed validly tendered, immediately
upon our payment for such Shares we must be able to exercise full voting, consent and other rights to the extent permitted under applicable law with respect to such Shares and other securities, including voting at any meeting of stockholders or
executing a written consent concerning any matter.
Determination of Validity . All questions as to the validity, form, eligibility
(including time of receipt) and acceptance of any tender of Shares will be determined by us in our sole and absolute discretion (which may be delegated in whole or in part to the Depositary and Paying Agent), which determination will be final and
binding, subject to the rights of the tendering GLDD Stockholders to challenge our determination in a court of competent jurisdiction. Purchaser reserves the absolute right to reject any and all tenders determined by us not to be in proper form or
the acceptance for payment of or payment for which may, in our opinion, be unlawful. Purchaser also reserves the absolute right to waive any defect or irregularity in the tender of any Shares of any particular stockholder whether or not similar
defects or irregularities are waived in the case of any other stockholder. No tender of Shares will be deemed to have been validly made until all defects and irregularities relating thereto have been cured or waived. None of Parent, Purchaser or any
of their respective affiliates or assigns, the Depositary and Paying Agent, the Information Agent, or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give
any such notification. Purchaser’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto and any other documents related to the Offer) will be final and binding, subject to
the rights of the tendering GLDD Stockholders to challenge our determination in a court of competent jurisdiction.
Information
Reporting and Backup Withholding . Payments made to GLDD Stockholders in the Offer or the Merger generally will be subject to information reporting and may be subject to backup withholding of U.S. federal income tax (currently at a rate of 24%).
To avoid backup withholding, any stockholder that is a U.S. person that does not otherwise establish an exemption from U.S. federal backup withholding should complete and return the IRS Form W-9 included in
the Letter of Transmittal, certifying that such stockholder is a U.S. person, that the taxpayer identification number provided is correct, and that such stockholder is not subject to backup withholding. Any stockholder that is not a U.S. person
should submit an IRS Form W-8BEN or IRS Form W-8BEN-E (or other applicable IRS Form W-8)
attesting to such stockholder’s foreign status, or otherwise establish an exemption from information reporting and backup withholding in a manner satisfactory to Purchaser. Backup withholding is not an additional tax. Any amounts withheld
under the backup withholding rules will
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generally be allowed as a refund from the IRS or a credit against a stockholder’s U.S. federal income tax liability, if any, provided the required information is timely furnished to the
IRS.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4 , tenders of Shares pursuant to the Offer are irrevocable. However, a
stockholder has withdrawal rights that are exercisable until the Expiration Date (i.e., at any time prior to one minute after 11:59 p.m. New York City time on March 31, 2026), or in the event the Offer is extended, on such date and time to which the
Offer is extended. In addition, pursuant to Section 14(d)(5) of the Exchange Act, Shares may be withdrawn at any time after May 3, 2026, which is the 60 th day after the date of the
commencement of the Offer, unless prior to that date Purchaser has accepted for payment the Shares validly tendered in the Offer.
For a
withdrawal of Shares to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase. Any notice of
withdrawal must specify the name of the person having tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the record holder of the Shares to be withdrawn, if different from that of the person who tendered such
Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless such Shares have been tendered for the account of any Eligible Institution. If Shares have been tendered pursuant to the procedures for
book-entry transfer as set forth in “ The Tender Offer—Section 3. Procedures for Tendering Shares ,” any withdrawal must be arranged through DTC’s procedures. If certificates representing the Shares to
be withdrawn have been delivered or otherwise identified to the Depositary and Paying Agent, the name of the registered holder and the serial numbers shown on such certificates must also be furnished to the Depositary and Paying Agent prior to the
physical release of such certificates.
All questions as to the form and validity (including time of receipt) of any notice of withdrawal
will be determined by us, in our sole discretion, which determination will be final and binding, subject to the rights of the tendering GLDD Stockholders to challenge our determination in a court of competent jurisdiction. No withdrawal of tendered
Shares will be deemed to have been properly made until all defects and irregularities have been cured or waived. None of Parent, Purchaser or any of their respective affiliates or assigns, the Depositary and Paying Agent, the Information Agent, or
any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give such notification. Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by following one of the procedures for tendering Shares
described in “ The Tender Offer—Section 3. Procedures for Tendering Shares ” at any time prior to the expiration of the Offer.
If Purchaser extends the Offer, delays its acceptance for payment of Shares, or is unable to accept for payment Shares pursuant to the Offer,
for any reason, then, without prejudice to Purchaser’s rights pursuant to the Offer, the Depositary and Paying Agent may nevertheless, on Purchaser’s behalf, retain tendered Shares, and such Shares may not be withdrawn except to the
extent that tendering stockholder’s exercise of withdrawal rights as described in this Section 4 .
We
will determine, in our sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal and our determination will be final and binding to the fullest extent permitted by law, subject to the rights
of GLDD Stockholders to challenge such decision in a court of competent jurisdiction. None of Purchaser, Parent, the Depositary and Paying Agent, the Information Agent or any other person will be under any duty to give notice of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
17
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER.
The following is a discussion of U.S. federal income tax considerations generally applicable to U.S. Holders and Non-U.S. Holders (each as defined herein) whose Shares are tendered and accepted for payment pursuant to the Offer or whose Shares are converted into the right to receive cash in the Merger. This summary is based on
provisions of the Code, Treasury regulations promulgated thereunder and administrative and judicial interpretations thereof, each in effect as of the date of this Offer, and all of which are subject to change, possibly with retroactive effect. We
have not sought, and do not intend to seek, any ruling from the IRS or any opinion of counsel with respect to the statements made and the conclusions reached in the following summary, and no assurance can be given that the IRS will agree with the
views expressed herein, or that a court will not sustain any challenge by the IRS in the event of litigation.
This summary applies only
to GLDD Stockholders who hold their Shares as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This summary does not address all aspects of U.S. federal income taxation that
may be relevant to a GLDD Stockholder in light of its particular circumstances, or that may apply to GLDD Stockholders subject to special treatment under U.S. federal income tax laws (e.g., regulated investment companies, real estate investment
trusts, mutual funds, controlled foreign corporations, passive foreign investment companies, cooperatives, banks and certain other financial institutions, insurance companies, government organizations,
tax-exempt organizations, retirement plans or other tax-deferred accounts, a corporation that accumulates earnings to avoid U.S. federal income tax, stockholders that
are, or hold Shares through, partnerships or other pass-through entities for U.S. federal income tax purposes, U.S. Holders (as defined herein) whose functional currency is not the United States dollar, dealers or brokers in stocks, securities,
commodities or foreign currency, dealers or traders that mark-to-market their securities, expatriates and former long-term residents of the United States, persons that
own or have owned (or are deemed to own or have owned under certain constructive ownership rules) 5% or more of the outstanding Shares (by vote or value), stockholders holding Shares as part of a straddle, hedging, constructive sale or conversion
transaction or other risk reduction transaction or integrated instrument, stockholders that purchase or sell Shares as part of a wash sale for tax purposes, stockholders required to recognize income or gain with respect to the Offer or the Merger no
later than such income or gain is required to be reported on an applicable financial statement (as defined in the Code), stockholders holding Shares as qualified small business stock for purposes of Sections 1045 and/or 1202 of the Code or as
“Section 1244 stock”, stockholders who exercise their appraisal rights in the Merger, and stockholders who received their Shares in compensatory transactions). In addition, this discussion does not address any tax consequences
related to (i) any aspect of the alternative minimum tax, (ii) the U.S. federal gift or estate tax, or any tax considerations under state, local or non-U.S. laws or U.S. federal laws other than those
pertaining to the U.S. federal income tax, or (iii) holders of options or warrants to purchase Shares, similar rights to purchase Shares or restricted stock units.
For purposes of this summary, the term “U.S. Holder” means a beneficial owner of Shares that, for U.S. federal income tax
purposes, is: (i) an individual who is a citizen or resident of the United States, (ii) a corporation, or an entity classified as a corporation, created or organized under the laws of the United States, any state thereof or the District of
Columbia, (iii) an estate, the income of which is subject to U.S. federal income tax regardless of its source; or (iv) a trust, if (A) a United States court is able to exercise primary supervision over the trust’s administration
and one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code) have authority to control all of the trust’s substantial decisions or (B) the trust has validly elected to be treated as a U.S. person for U.S.
federal income tax purposes.
For purposes of this summary, the term “ Non-U.S.
Holder ” means a beneficial owner of Shares that is neither a U.S. Holder nor a partnership (or any other entity or arrangement classified as a partnership for U.S. federal income tax purposes).
The term “ Holder ” or “ Holders ” means a U.S. Holder or a Non-U.S.
Holder.
18
If a partnership, or another entity or arrangement classified as a partnership for U.S.
federal income tax purposes, is the beneficial owner of Shares, the tax treatment of its partners or members generally will depend upon the status of the partner or member and the partnership’s activities. Accordingly, partnerships or other
entities or arrangements classified as partnerships for U.S. federal income tax purposes that beneficially own Shares, and partners or members in those partnerships or other entities or arrangements, are urged to consult their own tax advisors
regarding the specific U.S. federal income tax consequences to them of the Offer and the Merger.
This summary is for general
informational purposes only and is not tax advice. Because individual circumstances may differ, each Holder should consult its own tax advisor as to the applicability and effect of the rules summarized below and the particular tax consequences of
the Offer and the Merger to it, including the application and effect of the alternative minimum tax and any U.S. federal, state, local, and non-U.S. tax laws.
Tax Considerations for U.S. Holders
The exchange of Shares for cash pursuant to the Offer or the Merger will generally be a taxable transaction for U.S. federal income tax
purposes.
A U.S. Holder who sells Shares pursuant to the Offer or receives cash in exchange for Shares pursuant to the Merger generally
will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between (i) the amount of cash received (determined before deduction of any applicable withholding taxes) and (ii) the
U.S. Holder’s adjusted tax basis in the Shares sold pursuant to the Offer or converted pursuant to the Merger. A U.S. Holder’s adjusted tax basis will generally equal the price the U.S. Holder paid for such Shares. Any capital gain or
loss recognized will be long-term capital gain or loss if the U.S. Holder’s holding period for such Shares exceeds one year as of the closing of the Offer or the Effective Time, as the case may be. Long-term capital gains recognized by certain
non-corporate U.S. Holders, including individuals, are currently taxed at preferential U.S. federal income tax rates. The deductibility of capital losses is subject to limitations. Gain or loss generally will
be determined separately for each block of Shares (that is, Shares acquired at the same cost in a single transaction) tendered pursuant to the Offer or exchanged pursuant to the Merger.
A U.S. Holder that is an individual, an estate or a trust that does not fall into a special class of trusts that is exempt from such tax, is
subject to a 3.8% tax (the “ Medicare tax ”) on the lesser of: (i) such U.S. Holder’s “net investment income” (or “undistributed net investment income” in the case of an estate or trust) for the
relevant taxable year; and (ii) the excess of such U.S. Holder’s modified adjusted gross income for the taxable year over a certain threshold (which in the case of individuals is between $125,000 and $250,000, depending on the
individual’s circumstances). A U.S. Holder’s net investment income generally includes its net gains recognized upon a sale of Shares pursuant to the Offer or the Merger, unless such net gains are derived in the ordinary course of the
conduct of a trade or business (other than a trade or business that consists of certain passive or trading activities). A U.S. Holder that is an individual, estate or trust should consult its own tax advisor regarding the applicability of the
Medicare tax to any gains in respect of the sale of the Shares pursuant to the Offer or the Merger.
Tax Considerations for Non-U.S. Holders
Subject to the discussion under “ Information Reporting and Backup
Withholding ” below, any gain realized by a Non-U.S. Holder upon exchange of Shares pursuant to the Offer or the Merger generally will not be subject to U.S. federal income tax unless (i) such
gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business in the United States (and, if required by an applicable tax treaty, is attributable to a permanent establishment
maintained by such Non-U.S. Holder in the United States), in which case the Non-U.S. Holder generally will be taxed on a net income basis generally in the same manner as
a U.S. Holder, except that if the
19
Non-U.S. Holder is a foreign corporation, an additional branch profits tax may apply at a rate of 30% (or a lower applicable treaty rate) or (ii) such
Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the closing of the Offer or the Effective Time, as the case may be, and certain other
conditions are met, in which case such Non-U.S. Holder generally will be subject to a 30% U.S. federal income tax (or a lower rate under an applicable income tax treaty) on such gain.
Information Reporting and Backup Withholding
Information reporting generally will apply to payments to a Holder pursuant to the Offer or the Merger, unless such Holder is an entity that is
exempt from information reporting and, when required, properly demonstrates its eligibility for exemption. Payments to a Holder pursuant to the Offer or the Merger generally will also be subject to backup withholding (currently, at a rate of
twenty-four percent (24%)), unless (i) in the case of a U.S. Holder, such U.S. Holder provides the appropriate documentation (generally, IRS Form W-9) to the applicable withholding agent certifying that,
among other things, its taxpayer identification number is correct, or otherwise establishes an exemption and (ii) in the case of a Non-U.S. Holder, such Non-U.S.
Holder certifies under penalties of perjury that it is not a U.S. person (generally by providing an IRS Form W-8BEN, IRS Form
W-8BEN-E or other applicable IRS Form W-8) or otherwise establishes an exemption.
Non-U.S. Holders are urged to consult their own tax advisors to determine which IRS Form W-8 is appropriate.
Certain Holders (including corporations) generally are not subject to backup withholding. Backup withholding is not an additional tax. Any
amounts withheld under the backup withholding rules generally will be allowed as a refund or a credit against a Holder’s U.S. federal income tax liability if the required information is properly and timely furnished by such Holder to the IRS.
FATCA Withholding
Under
Sections 1471 through 1474 of the Code (such sections commonly referred to as “ FATCA ”), a 30% U.S. federal withholding tax may apply to certain payments made to (i) a “foreign financial institution” (as
specifically defined in the Code, whether such foreign financial institution is the beneficial owner or an intermediary) which does not provide sufficient documentation, typically on IRS Form W-8BEN-E, evidencing either (x) an exemption from FATCA or (y) its compliance (or deemed compliance) with FATCA (which may alternatively be in the form of compliance with an intergovernmental
agreement with the United States) in a manner which avoids withholding, or (ii) a “non-financial foreign entity” (as specifically defined in the Code, whether such non-financial foreign entity is the beneficial owner or an intermediary) which does not provide sufficient documentation, typically on IRS Form
W-8BEN-E, evidencing either (x) an exemption from FATCA or (y) adequate information regarding certain substantial U.S. beneficial owners of such entity (if
any). If a payment is subject to withholding under FATCA, an applicable withholding agent may credit the withholding under FATCA against, and therefore reduce, any other withholding tax to which such payment may be subject. Proposed U.S. Treasury
regulations (upon which taxpayers may rely until final regulations are issued) eliminate FATCA withholding on payments of gross proceeds entirely. Holders should consult their own tax advisors regarding these requirements and whether they may be
relevant to such Holder who sells Shares pursuant to the Offer or receives cash in exchange for Shares pursuant to the Merger.
THE
FOREGOING DOES NOT SUMMARIZE ALL ASPECTS OF U.S. FEDERAL INCOME TAXATION THAT MAY BE RELEVANT TO PARTICULAR HOLDERS. HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISOR REGARDING THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE OFFER OR THE MERGER IN
LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, INCLUDING THE APPLICATION AND EFFECT OF ANY FEDERAL, STATE, LOCAL, NON-UNITED STATES, OR OTHER LAWS.
20
6. PRICE RANGE OF SHARES.
The Shares are traded on Nasdaq under the symbol “GLDD.” GLDD has advised Parent that, it is expected that as of the close of
business on March 30, 2026, there will be 67,433,542 Shares issued and outstanding. The following table sets forth, for the fiscal quarters indicated, the high and low closing sales prices per Share on Nasdaq with respect to the fiscal years
ended December 31, 2025 and December 31, 2024 and the current fiscal year.
|
|
|
|
|
|
|
|
|
Current Fiscal Year
|
|
High |
|
|
Low |
|
First Quarter (through March 3, 2026)
|
|
$ |
16.98 |
|
|
$ |
13.10 |
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended December 31, 2025
|
|
High |
|
|
Low |
|
First Quarter
|
|
$ |
12.44 |
|
|
$ |
7.67 |
|
Second Quarter
|
|
|
12.35 |
|
|
|
8.04 |
|
Third Quarter
|
|
|
12.27 |
|
|
|
10.53 |
|
Fourth Quarter
|
|
|
13.89 |
|
|
|
10.78 |
|
|
|
|
|
|
|
|
|
|
Fiscal Year Ended December 31, 2024
|
|
High |
|
|
Low |
|
First Quarter
|
|
$ |
9.55 |
|
|
$ |
7.12 |
|
Second Quarter
|
|
|
9.65 |
|
|
|
6.60 |
|
Third Quarter
|
|
|
10.79 |
|
|
|
8.10 |
|
Fourth Quarter
|
|
|
12.73 |
|
|
|
10.72 |
|
On March 3, 2026, the last full trading day prior to the date of this Offer to Purchase, the last reported closing price per
Share reported on Nasdaq was $16.98, which represents a 0.1% discount to the Offer Price of $17.00 per Share.
The Offer Price of $17.00 per Share
represents a premium of twenty-five percent (25%) to the volume-weighted average price for the 90-day period prior to February 10, 2026, the last full trading day before Parent, Purchaser and GLDD
publicly announced their entry into the Merger Agreement.
7. CERTAIN INFORMATION CONCERNING GLDD.
The following description of GLDD and its business was provided by GLDD; for further information on GLDD’s business, see GLDD’s
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2025, filed with the Securities and Exchange Commission on November 4, 2025, and GLDD’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed with the Securities and Exchange Commission on February 23, 2026.
GLDD, together with its wholly owned subsidiaries, is a leading provider of dredging services in the United States. The address of
GLDD’s principal executive office is 9811 Katy Freeway, Suite 1200, Houston, Texas 77024. The business telephone number of GLDD’s principal executive office is (346) 359-1010.
In connection with our due diligence review of GLDD, GLDD made available to us certain financial information described in Item 4 under the
heading “ The Solicitation or Recommendation — Certain Financial Projections ” of the Schedule 14D-9.
Available Information . The Shares are registered under the Exchange Act. Accordingly, GLDD is subject to the information and reporting
requirements of the Exchange Act and in accordance therewith is obligated to file reports and other information with the Securities and Exchange Commission relating to its business, financial condition and other matters. Certain information, as of
particular dates, concerning GLDD’s business, principal
21
physical properties, capital structure, material pending litigation, operating results, financial condition, directors and officers (and their compensation, including GLDD RSU Awards), the
principal holders of GLDD’s securities, any material interests of such persons in transactions with GLDD, and other matters is required to be disclosed in proxy statements and periodic reports distributed to GLDD Stockholders and filed with
the SEC. The Securities and Exchange Commission maintains an Internet website that contains reports, proxy statements and other information about issuers, such as GLDD, who file electronically with the SEC. The address of that site is
https://www.sec.gov. GLDD also maintains an Internet website at https://www.gldd.com (see Investors page). The information contained in, accessible from or connected to GLDD’s website is not incorporated into, or otherwise a part of, this
Offer to Purchase or any of GLDD’s filings with the SEC. The website addresses referred to in this paragraph are inactive text references and are not intended to be actual links to the websites.
Sources of Information . Except as otherwise set forth herein, the information concerning GLDD contained in this Offer to Purchase has
been based upon publicly available documents and records on file with the SEC, other public sources and information provided by GLDD. Although we have no knowledge that any such information contains any misstatements or omissions, none of Parent,
Purchaser or any of their respective affiliates or assigns, the Information Agent or the Depositary and Paying Agent assumes responsibility for the accuracy or completeness of the information concerning GLDD contained in such documents and records
or for any failure by GLDD to disclose events which may have occurred or may affect the significance or accuracy of any such information.
8. CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER.
General . Purchaser is a Delaware corporation with its business
address at Huron MergeCo., Inc., c/o Saltchuk Resources, Inc., 450 Alaskan Way South, Suite 708, Seattle, Washington 98104. The business telephone number of Purchaser is (206) 652-1111. Purchaser is a
wholly owned subsidiary of Parent. Purchaser was formed for the purpose of making a tender offer for any and all of the issued and outstanding Shares and has not engaged in, and does not expect to engage in, any business other than in connection
with the Offer and the Merger.
Parent is a Washington corporation with its business address at Saltchuk Resources, Inc., 450 Alaskan Way
South, Suite 708, Seattle, Washington 98104. The business telephone number of Parent is (206) 652-1111. Parent, through its subsidiary business units and operating companies, provides air cargo, marine
services, energy distribution, energy shipping, domestic shipping, international shipping and logistics services.
The name, citizenship,
business address, business phone number, present principal occupation or employment and past material occupation, positions, offices or employment for at least the last five (5) years for each director and each of the executive officers of
Parent and Purchaser, as applicable, and certain other information are set forth in Schedule A hereto. We refer to the individuals and entities listed in Schedule A (excluding the Parent and Purchaser) as the “ Item 3 Persons .”
During the last five (5) years, none of Parent and Purchaser or, to the knowledge of Parent and Purchaser, any of the Item 3
Persons: (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) was a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of such laws.
None of Parent, Purchaser, any majority-owned subsidiary of Parent or Purchaser, or, to the knowledge of Parent and Purchaser, any of the Item
3 Persons or any associates of any of the foregoing (i) beneficially owns or has any right to acquire, directly or indirectly, any Shares or (ii) has effected any transaction in the Shares during the past sixty (60) days. As discussed
in “ The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Conversion of Shares ,” any Shares owned directly or indirectly by Parent or Purchaser as of immediately
prior to the Effective Time will be canceled in the Merger for no consideration.
22
Except as set forth in this Offer to Purchase, none of Parent or Purchaser or, to the
knowledge of Parent and Purchaser, any of the Item 3 Persons, has had any present or proposed material agreement, arrangement, understanding or relationship with GLDD or any of its executive officers, directors, controlling persons or subsidiaries
that is required to be reported under the rules and regulations of the Securities and Exchange Commission applicable to the Offer. Except as set forth in this Offer to Purchase, there have been no contacts, negotiations or transactions between
Parent, Purchaser or any of their subsidiaries or, to the knowledge of Parent and Purchaser, any of the Item 3 Persons, on the one hand, and GLDD or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer
or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets during the past two (2) years.
Available Information . Pursuant to Rule 14d-3 under the Exchange Act, Parent and Purchaser
filed with the Securities and Exchange Commission a Tender Offer Statement on Schedule TO (as amended through the date hereof, the “ Schedule TO ”), of which this Offer to Purchase forms a part, and exhibits to the Schedule TO. The
Schedule TO and the exhibits thereto, as well as other information filed by Parent and Purchaser with the SEC, are available at the SEC’s website on the Internet at www.sec.gov . Requests for additional copies of this Offer to Purchase,
the Letter of Transmittal and other tender offer materials may be directed to the Information Agent at its address and telephone number set forth on the back cover of this Offer to Purchase.
9. SOURCE AND AMOUNT OF FUNDS.
The Offer is not conditioned upon Parent’s or Purchaser’s ability to finance the purchase of Shares pursuant to the Offer. Parent
and Purchaser estimate that the total amount of funds required from Parent and Purchaser to purchase all issued and outstanding Shares pursuant to the Offer, consummate the Merger and otherwise satisfy their respective obligations under the Merger
Agreement (including payments for the settlement and cancellation of GLDD RSU Awards, repayment of GLDD indebtedness and payment of associated breakage costs, payment of retention and other bonus payments to GLDD employees) and pay associated
estimated fees and expenses is approximately $1,621.1 million. Parent and Purchaser expect to fund such payments from either a combination of Parent’s and GLDD’s available cash, borrowings under Parent’s existing credit
facilities and a committed unsecured bridge credit facility or from a refinancing and upsize of Parent’s existing credit facilities. To the extent required, Parent will provide Purchaser with sufficient funds to satisfy Purchaser’s
obligations. No alternative arrangements or alternative financing plans have been made.
The summaries below do not purport to be
complete. The summary of the Parent Credit Agreement (as defined herein) is qualified in its entirety by reference to the full text of the Parent Credit Agreement, a copy of which is filed as Exhibit (b)(2) to the Schedule TO, which is
incorporated in this document by reference. Stockholders of GLDD and other interested parties should read the full agreement for a more complete description of the provisions summarized below.
Parent and certain of its subsidiaries are parties to Credit Agreement, dated May 21, 2024 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “ Parent Credit Agreement ”), with Bank of America, N.A., as Administrative Agent, L/C Issuer and a Lender, Wells Fargo Bank, N.A., as Swing Line Lender and a Lender, U.S.
Bank National Association, as a Lender, JPMorgan Chase Bank, N.A., as a Lender, PNC Bank, National Association, as a Lender, Zions Bancorporation, N.A. d/b/a The Commerce Bank of Washington, as a Lender, WAFD Bank, as a Lender, First Hawaiian Bank,
as a Lender, and Bank of Hawaii, as a Lender (each, a “ Lender ”).
The Parent Credit Agreement presently provides for
(i) an $800,000,000 revolving credit facility, and (ii) a $375,000,000 term loan facility. The maturity date for the credit facilities outstanding under the Parent Credit Agreement is currently May 21, 2029. Parent’s obligations
under the Parent Credit Agreement are unsecured, but are guaranteed by certain subsidiaries of Parent.
23
Borrowings under the Parent Credit Agreement may take the form of Base Rate Loans, Term SOFR
Loans, or SOFR Daily Floating Rate Loans (as each such term is defined in the Parent Credit Agreement). Base Rate Loans bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the
Base Rate (as defined in the Parent Credit Agreement and discussed below) plus the Applicable Rate (as defined in the Parent Credit Agreement and discussed below). Term SOFR Loans bear interest on the outstanding principal amount thereof for each
Interest Period (as defined in the Parent Credit Agreement) at a rate per annum equal to Term SOFR (as defined in the Parent Credit Agreement) for such Interest Period plus the Applicable Rate. SOFR Daily Floating Rate Loans bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the SOFR Daily Floating Rate plus the Applicable Rate.
The Applicable Rate is based upon Parent’s Consolidated Net Leverage Ratio (as defined in the Parent Credit Agreement) for the
applicable period. For Base Rate Loans, the Applicable Rate ranges from 0.375% to 1.375%. For Term SOFR Loans and SOFR Daily Floating Rate Loans, the Applicable Rate ranges from 1.375% to 2.375%.
The Base Rate is, for any day, a fluctuating rate of interest per annum equal to the highest of (i) the Federal Funds Rate plus 0.50%,
(ii) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (iii) Term SOFR plus 1.00%, subject to the interest rate floors set forth therein (provided, that
if the Base Rate calculation results in an amount less than zero, the Base Rate is deemed to be zero).
All borrowings under the Parent
Credit Agreement may be prepaid at any time or from time to time without premium or penalty.
Purchaser has made a “Limited
Condition Transaction” election under the Parent Credit Agreement with respect to the Transactions. Additionally, a portion of the revolving commitments under the Parent Credit Agreement necessary to fund $300 million of the purchase
price for the Transactions (plus additional amount necessary to pay the Purchaser’s related transactions costs) have been designated as being subject to limited conditions to availability which are, substantially similar to those applicable to
the Bridge Facility (as defined below), as well as the absence of a payment or bankruptcy event of default under the Parent Credit Agreement.
Additionally, on February 10, 2026, the Purchaser entered into a commitment letter with U.S. Bank National Association, Bank of America,
N.A., PNC Bank, National Association, and Wells Fargo Bank, National Association (collectively, the “ Initial Lenders ”), pursuant to which the Initial Lenders committed an aggregate of $1,300,000,000 under a fully committed, senior
unsecured bridge term loan facility (the “ Bridge Facility ”). The Bridge Facility will, if required, be a single-draw senior unsecured term loan that may be drawn in whole or in part to fund part of the cash consideration and
expenses payable in connection with the Transactions. Any undrawn commitments terminate immediately thereafter. The Bridge Facility would have a maturity date of 364 days, with a one-time automatic 180-day extension available if certain
conditions are met, and would have definitive documentation substantially similar to the Parent Credit Agreement (subject to customary modifications). The obligations of the Initial Lenders to make the Bridge Facility available are subject only to a
limited number of conditions that are customary for acquisition financing, including the accuracy of specified representations by Parent and specified merger agreement representations. The commitments under the Bridge Loan Facility will be reduced
on a dollar-for-dollar basis by, among other things, any financing commitments or loans obtained to finance the Transactions.
In addition to the Bridge Facility described above, Parent and Purchaser are concurrently finalizing a new senior unsecured credit agreement
(the “ New Credit Agreement ”), which, if executed and available on or before the Effective Time, would refinance the Parent Credit Agreement and provide an alternative source of financing for the Transactions. Parent is engaged
with the Lenders in connection with the negotiation of definitive documentation for the New Credit Agreement, which is expected to consist of up to (i) a $1,250 million
24
revolving credit facility, and (ii) a $1,250 million term loan facility, with proceeds to be used in lieu of, or to reduce borrowings under, the Bridge Facility. The New Credit
Agreement is expected to have a five-year maturity and to be substantially similar to the Parent Credit Agreement, subject to certain modifications agreed between Parent and the Lenders. The New Credit Agreement has not yet been executed, and the
final terms remain subject to negotiation, but the availability of amounts thereunder to be used to fund the Transactions are expected to have the same limited conditionality as the Bridge Facility. If the New Credit Agreement is executed and
becomes available prior to the consummation of the Offer, Parent may elect to use the New Credit Agreement in full or in part to fund consideration, fees and expenses in connection with the Transactions. Any commitments under the Bridge Facility
would be reduced or terminated to the extent Parent elects to obtain financing under the New Credit Agreement. Parent’s ability to finance the purchase of the Shares pursuant to the Offer and to consummate the Merger is not affected by or
dependent on the consummation of, or the specific terms and conditions of, the New Credit Agreement.
10. BACKGROUND OF
THE OFFER; CONTACTS WITH GLDD.
The following is a description of material contacts between representatives of Parent and Purchaser
with representatives of GLDD that resulted in the execution of the Merger Agreement and the agreements related to the Offer. For a review of GLDD’s activities relating to the process, including additional information regarding the GLDD
Board’s process and the strategic alternatives that GLDD considered, please refer to the Schedule 14D-9 that will be filed by GLDD with the SEC and mailed to GLDD Stockholders.
Background of the Offer and the Merger.
The board of directors of Parent (the “Parent Board”) as well as Parent’s executive management regularly evaluate various
strategies to improve its competitive position and enhance its value, including opportunities for acquisitions of other companies or their assets. Parent had identified the dredging industry as a possible area for Parent investment and regularly
monitored the public filings of GLDD and its publicly traded peers. Parent regularly meets with infrastructure funds and family offices to explore potential joint investment opportunities. In early 2025, an infrastructure investor with whom Mark N.
Tabbutt, the President and Chairman of Parent, had a pre-existing relationship reached out to Mr. Tabbutt to discuss a potential partnership with respect to investing in or acquiring GLDD.
On April 16, 2025, Mr. Tabbutt contacted Lasse J. Petterson, the Chief Executive Officer and President of GLDD, to request a
meeting. This was the first communication between any member of the senior management of Parent and any member of GLDD’s senior management.
On May 7, 2025, Mr. Tabbutt, Jerald W. Richards, the Senior Vice President, Chief Financial Officer and Assistant Secretary of
Parent, and a representative of the infrastructure investor met with Mr. Petterson and Scott Kornblau, the Senior Vice President and Chief Financial Officer of GLDD. At the meeting, the parties discussed GLDD’s business and operations. No
proposal with respect to a strategic transaction was made at the meeting.
On August 11, 2025, representatives of Guggenheim
Securities, LLC (“Guggenheim Securities”), GLDD’s financial advisor, reached out to Mr. Tabbutt, Mr. Richards and Mike Dannenberg, Vice President, Corporate Development and Strategy of Parent, to inquire whether Parent
would be interested in exploring a potential strategic transaction with GLDD. Later on August 11, 2025, after discussion with members of GLDD’s senior management, a representative of Guggenheim Securities conveyed to Parent GLDD’s
willingness to hold an exploratory meeting with representatives of Parent and, if authorized by the GLDD Board, to enter into a customary confidentiality agreement with Parent.
On September 4, 2025, Mr. Tabbutt and Mr. Dannenberg met in person with Mr. Petterson, Mr. Kornblau and
representatives of Guggenheim Securities, during which Mr. Petterson and Mr. Kornblau discussed the business of GLDD. Following this meeting, representatives of Guggenheim Securities called Mr. Tabbutt to discuss the potential
submission by Parent of a written, non-binding indication of interest in acquiring GLDD.
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On September 6, 2025, Mr. Tabbutt contacted Mr. Petterson to inform him that
Mr. Tabbutt would make a recommendation to the executive officers and the Parent Board that Parent management begin exploring and evaluating Parent potentially submitting an indication of interest for an acquisition of GLDD.
On September 9, 2025, Mr. Tabbutt contacted Mr. Petterson to inform him that the Parent Board supported Parent management
exploring and evaluating Parent potentially submitting an indication of interest for a potential acquisition of GLDD.
On October 1,
2025, Parent and GLDD entered into a confidentiality agreement (the “GLDD Confidentiality Agreement”), which form included standstill provisions that would terminate upon the earlier of one year following such execution and GLDD’s
entry into a change of control transaction, and the taking of certain actions relating thereto, or the recommendation by the GLDD Board of another tender or exchange offer. The GLDD Confidentiality Agreement also prohibited Parent from engaging in
discussions with management of GLDD regarding potential post-closing employment with Parent. Thereafter, representatives of Parent and Evercore Group L.L.C. (“Evercore”), financial advisor to Parent, were given access to a virtual data
room for the purpose of engaging in a business due diligence review of GLDD and representatives of Evercore delivered initial due diligence requests on behalf of Parent to representatives of Guggenheim Securities.
Between October 1, 2025 and October 27, 2025, representatives of Parent and its advisors conducted their preliminary business due
diligence review of GLDD.
On October 28, 2025, members of management of Parent and representatives of Evercore met in person with
members of management of GLDD and representatives of Guggenheim Securities to review GLDD’s business and performance. Representatives of Guggenheim Securities provided a general overview of a process and timing for GLDD to explore a potential
transaction and indicated that a process letter would be provided following the meeting.
On October 30, 2025, representatives of
Guggenheim Securities, on behalf of GLDD, provided a process letter to representatives of Evercore. The process letter requested that Parent submit, no later than November 10, 2025, a written, non-binding indication of interest for a potential
acquisition of GLDD.
On November 6, 2025, members of management of Parent and representatives of Evercore held a virtual meeting
with members of management of GLDD and representatives of Guggenheim Securities, during which commercial diligence matters were discussed.
On November 7, 2025, representatives of Evercore, on behalf of Parent, submitted to the GLDD Board a written, non-binding indication of
interest to acquire GLDD for a price within a range of $13.25 to $15.00 per share in cash (the “Initial Proposal”), representing a premium of 14.0% to 29.0% to GLDD’s volume weighted average price per Share for the
30-trading day period ending on November 7, 2025.
On November 10, 2025, representatives of Guggenheim Securities provided
representatives of Evercore with informal feedback on the Initial Proposal, indicating that the GLDD Board would be meeting to consider the Initial Proposal, but would not be likely to proceed with a potential strategic transaction at the price
range reflected in the Initial Proposal.
On November 12, 2025, following a meeting of the GLDD Board, representatives of Guggenheim
Securities contacted representatives of Evercore to confirm that the GLDD Board was not prepared to pursue a potential strategic transaction within the price range proposed in the Initial Proposal.
On November 17, 2025, Evercore contacted Guggenheim Securities and inquired whether, in their opinion, a price per share between $14.00
and $16.00 in cash would be sufficient to advance discussions. Guggenheim Securities reiterated that the GLDD Board viewed the price per share offered in the Initial Proposal as materially below any value the GLDD Board would be willing to
entertain, and that Parent would need to materially increase its price for the GLDD Board to reconsider.
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On November 19, 2025, Mr. Tabbutt had a telephonic meeting with Mr. Petterson
to discuss Parent’s continued interest in pursuing the acquisition of GLDD. On the call, Mr. Tabbutt summarized certain matters that were taken into account by Parent in connection with the price per share in the Initial Proposal.
Mr. Petterson indicated that if Parent wished to submit a revised proposal, it should do so in writing and provide a single price rather than a range.
On November 20, 2025, Parent submitted to the GLDD Board a written, non-binding indication of interest to acquire GLDD for
$17.00 per share in cash, representing a premium of 45.8% to GLDD’s closing price of $11.66 as of November 20, 2025.
On
November 26, 2025, representatives of Guggenheim Securities and Evercore held a virtual meeting during which representatives of Guggenheim Securities informed Evercore that the GLDD Board had authorized due diligence and other steps with
respect to a potential transaction with Parent.
Between November 26, 2025 and February 9, 2026, members of management of GLDD
and representatives of Guggenheim Securities and Sidley Austin LLP (“Sidley”), counsel to GLDD, participated in multiple virtual meetings and telephone conferences with members of management of Parent and representatives of Evercore and
Fried, Frank, Harris, Shriver & Jacobson LLP (“Fried Frank”), counsel to Parent, to respond to inquiries in connection with Parent’s due diligence review of GLDD. These meetings and telephonic diligence sessions covered a
review of GLDD’s performance, business and services, accounting and tax matters, legal and compliance matters, employee benefits and other topics. During these times, GLDD and its advisors also responded to various business, legal and
accounting due diligence inquiries from Parent and its advisors in connection with its review of the potential transaction by providing certain nonpublic information regarding GLDD to Parent through the virtual data room.
On December 14, 2025, representatives of Sidley shared a draft of the Merger Agreement with representatives of Fried Frank. The draft of
the Merger Agreement contemplated a tender offer structure and provided for, among other things, (i) a “go shop” provision permitting GLDD to solicit proposals from potential counterparties during the 40 days following the
execution of the Merger Agreement and, if any of such proposals resulted in a superior proposal that Parent did not “match,” to terminate the Merger Agreement, take such superior proposal and pay Parent a termination fee equal to 1.0% of
the equity value of the transaction with Parent, (ii) a termination fee of 2.5% of the equity value of the transaction that would be payable by GLDD if GLDD terminated the Merger Agreement to accept a superior proposal that was provided after
the “go shop” period described above, and (iii) recourse provisions such that if Parent did not close the transaction when it was required to do so under the Merger Agreement, GLDD would have the right to specific performance to
cause Parent to close and GLDD would have the right to terminate the Merger Agreement, in which case (a) Parent would be required to pay GLDD a termination fee of 10% of the equity value of the transaction and (b) GLDD could pursue
additional damages beyond the termination fee.
On January 2, 2026, representatives of Fried Frank delivered a markup of the draft
Merger Agreement to representatives of Sidley. The markup of the draft Merger Agreement, among other things, (i) eliminated the “go shop” provision replacing it with a “no shop” provision prohibiting GLDD from soliciting
other proposals but permitting GLDD to negotiate with a counterparty that made an unsolicited proposal, (ii) contemplated that GLDD would be required to pay Parent a termination fee of 4.25% of the equity value of the transaction with Parent if
GLDD terminated the Merger Agreement to accept a superior proposal, and (iii) deleted the termination fee payable by Parent in the event it did not close when it was required to do so and the Merger Agreement was terminated.
On January 5, 2026, Mr. Tabbutt indicated to Mr. Petterson that Parent would need to be comfortable that Mr. Petterson and
other members of senior management would remain with GLDD for a period after closing in order for Parent to be willing to proceed with a transaction.
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On January 6, 2026, members of management of Parent and representatives of Evercore met
in person with members of management of GLDD and representatives of Guggenheim Securities to review GLDD’s business, performance, commercial arrangements and assets. On the same day, representatives of Fried Frank and representatives of Sidley
discussed GLDD’s key issues with the terms of the Fried Frank marked of the draft Merger Agreement.
On January 7, 2025, GLDD
and Parent entered into a second non-disclosure agreement establishing the terms under which Parent would share certain financial information and other confidential information of Parent with GLDD (the “Parent Confidentiality
Agreement”). On the same day, representatives of Evercore, on behalf of Parent, delivered financial information regarding Parent to representatives of Guggenheim Securities in connection with GLDD’s evaluation of Parent’s debt
financing plans.
On January 9, 2026, representatives of Sidley delivered a revised draft of the Merger Agreement to representatives
of Fried Frank. The revised draft accepted the deletion of the “go shop” provision but contemplated that if GLDD accepted an unsolicited superior proposal that was initially received during the first 30 days following the execution
of the Merger Agreement, the termination fee would be 1.5% of the equity value of the transaction with Parent, but would be 2.65% of the equity value if the Merger Agreement were terminated to accept a superior proposal received after that
30 day period. The revised draft also contemplated that if Parent did not close when required to do so, in addition to the remedy of specific performance, GLDD would have the right to terminate and elect either (i) to pursue damages
against Parent or (ii) to require Parent to pay a termination fee equal to 8% of the equity value of the transaction.
On
January 16, 2026, Mr. Tabbutt called Mr. Petterson to discuss the status of negotiations, and Mr. Tabbutt reiterated to Mr. Petterson that Parent was requesting individual meetings with the management team.
On January 20, 2026, representatives of Fried Frank delivered a markup of the revised draft of the Merger Agreement to representatives of
Sidley. The markup of the Merger Agreement (i) contemplated a termination fee payable by GLDD if it accepted a superior proposal of 3.75% of the equity value of the potential transaction with Parent and (ii) removed the concept that if
Parent did not close when it was required to do so GLDD would have the ability to terminate and elect to receive a termination fee but retained the right of GLDD to specific performance and to terminate the Merger Agreement and pursue damages.
On January 22, 2026, a member of management of Parent met in person with members of management of GLDD.
On January 27, 2026, representatives of Fried Frank delivered to representatives Sidley a draft of the debt commitment letters to finance
a portion of the transaction. On January 29, 2026, Fried Frank delivered to Sidley a draft of an amendment to the credit facility of Parent, which credit facility was to be used to finance an additional portion of the transaction. From
January 27, 2026 through February 10, 2026, representatives of Sidley, Parent’s finance counsel, Fried Frank and Parent’s lenders discussed the status and terms of Parent’s debt financing.
On January 30, 2026, Mr. Tabbutt called Mr. Petterson to discuss that, to be comfortable with proceeding with the transaction,
Parent would require Mr. Petterson, Mr. Kornblau and Vivienne R. Schiffer, Senior Vice President, Chief Legal Officer and Chief Compliance Officer of GLDD, to enter into letter agreements, pursuant to which each such executive would agree,
for a period of time following the Closing, to waive any right to claim “good reason” under their respective employment agreements with GLDD solely in respect of (i) the consummation of the Offer and/or the Merger and (ii) any
change to their authorities, duties, responsibilities or reporting lines that reasonably result from GLDD becoming, by reason of the Offer and Merger, a subsidiary of Parent following the Effective Time and ceasing to be publicly traded
(collectively, the “Waiver Agreements”). The Waiver Agreements are summarized in more detail below (see “The Tender Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Summary of the
Waiver Agreements”).
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On January 31, 2026, Mr. Tabbutt sent Mr. Petterson a draft of Parent’s
proposed terms for inclusion in the Waiver Agreements. On the following day, Mr. Tabbutt sent Mr. Petterson a draft form of Waiver Agreement reflecting Parent’s proposed terms.
Between February 1, 2026 and February 9, 2026, representatives of Fried Frank and Holland & Knight LLP, employment counsel to
Mr. Petterson, Mr. Kornblau and Ms. Schiffer, exchanged drafts of the form of Waiver Agreement and participated in multiple discussions regarding the Waiver Agreements. In addition, during this time Mr. Tabbutt and
Mr. Petterson engaged in conversations regarding the terms of the Waiver Agreements.
Over the course of the following days, the
parties finalized the transaction documents and exchanged drafts of the Merger Agreement, related disclosure schedules and financing documentation, and negotiated open issues, including on equity award treatment, restrictions on GLDD’s
operations between signing and closing, financing covenants and the size of GLDD’s termination fee. In addition, Parent negotiated with each of Messrs. Petterson and Kornblau and Ms. Schiffer the Waiver Agreements and consideration
for the waiver of certain of their rights under the employment agreements. On February 10, 2026, the parties agreed to a GLDD termination fee of 3.15% of equity value.
Late in the evening on February 10, 2026, GLDD, Parent and Purchaser executed the Merger Agreement.
Early in the morning on February 11, 2026, prior to the opening of the public markets, GLDD and Parent issued a joint press release
announcing the execution of the Merger Agreement.
11. SUMMARY OF THE MERGER AGREEMENT AND CERTAIN OTHER AGREEMENTS.
Summary of the Merger Agreement.
The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are
qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. The Merger Agreement was filed as Exhibit 2.1 to the Current Report on Form 8-K that GLDD filed with the
Securities and Exchange Commission on February 11, 2026. The Merger Agreement may be examined and copies may be obtained at the places and in the manner set forth in “ The Tender Offer—Section 8. Certain
Information Concerning Parent and Purchaser .” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions summarized below. Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Merger Agreement.
The Merger Agreement has been included to provide investors and
security holders with information regarding the terms of the Transactions. It is not intended to provide any other factual information about GLDD, Parent, Purchaser, or their respective subsidiaries and affiliates. The Merger Agreement contains
representations and warranties by GLDD, on the one hand, and Parent and Purchaser, on the other hand, made solely for the benefit of the other. The assertions embodied in those representations and warranties are subject to qualifications and
limitations agreed to by the respective parties in negotiating the terms of the Merger Agreement, including information in confidential disclosure letters of GLDD (the “ GLDD Disclosure Letter ”) and Parent (the “ Parent
Disclosure Letter ”), respectively, in each case, delivered in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to
a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between GLDD, on the one hand, and Parent and Purchaser, on the other hand, rather than
establishing matters as facts. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by any persons as characterizations of the actual state of facts about GLDD, Parent, Purchaser or their respective
subsidiaries or affiliates at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or
may not be fully reflected in GLDD’s public disclosures.
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The Offer . The Merger Agreement provides that Purchaser will (or Parent will cause
Purchaser to) commence the Offer as promptly as reasonably practicable, but in no event later than fifteen (15) business days after the date of the Merger Agreement. Subject to the satisfaction of the Minimum Tender Condition and the other
Offer Conditions that are described in “ The Tender Offer—Section 15. Conditions of the Offer ,” Purchaser will (and Parent will cause Purchaser to) (i) immediately following, and in no event later than
8:30 a.m. New York City time, one (1) business day after the Expiration Date, irrevocably accept for purchase and payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer and, (ii) pay (subject to any required
tax withholdings), as promptly as practicable after the Acceptance Time (and in any event within two (2) business days thereafter), for all such Shares. If the Offer is consummated, each GLDD Stockholder will receive the Offer Price for each
Share validly tendered and not properly withdrawn by such stockholder prior to the Expiration Date, in cash, without interest thereon and subject to any required tax withholdings. The Offer is scheduled to expire at one minute after 11:59 p.m. New
York City time on March 31, 2026, unless extended or re-extended as described below.
Pursuant to
the Merger Agreement, Purchaser has expressly reserved the right to (i) increase the amount of cash constituting the Offer Price and/or (ii) waive, in whole or in part, any Offer Condition, or modify the terms of the Offer not inconsistent
with the terms of the Merger Agreement, except that, without the prior written consent of GLDD, Purchaser may not (and Parent will not permit Purchaser to) (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price
(other than as permitted by the Merger Agreement), (c) amend, modify or waive the Minimum Tender Condition, the Competition Laws Condition, the Injunction Condition and the Termination Condition, (d) add to the Offer Conditions or other
conditions of the Offer or amend, modify or supplement any Offer Condition or other conditions of the Offer, (e) except as provided in the Merger Agreement with respect to the extension of the Offer, terminate, extend or otherwise amend or
modify the Expiration Date, (f) change the form of consideration payable in the Offer, (g) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse to GLDD Stockholders or that would reasonably be expected to
cause any delay of Parent or Purchaser to consummate the Offer, or (h) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
Extensions of the Offer . The Merger Agreement provides that (i) Purchaser may, in its sole discretion, and without the consent of
GLDD or any other person, extend the Offer on one or more occasions, for additional periods of up to ten (10) business days (as determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) per
extension (or such longer period as the parties may agree), if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or waived by Purchaser or Parent, in order to permit such Offer Condition to be satisfied, except that, in
the event that at any then-scheduled Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than the Offer Conditions that by their nature are only satisfied as of the Acceptance Time so long as such
conditions would be satisfied if the Acceptance Time were to then occur) then Purchaser shall not be permitted to extend the Offer more than four (4) times in the aggregate, (ii) Purchaser shall, and Parent shall cause Purchaser to, extend
the Offer for the minimum period required by applicable law, or by any rule, regulation, interpretation or position of the SEC, the staff thereof or Nasdaq applicable to the Offer, and (iii) if, at any then-scheduled Expiration Date, any Offer
Condition is not satisfied or, if permitted by the Merger Agreement, waived by Parent or Purchaser at such time, then if requested by GLDD, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for additional periods of ten
(10) business days (determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) per extension (or such other period as the parties may agree), except that, in the event that at any then-scheduled
Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than conditions that by their nature are only to be satisfied at the Acceptance Time, so long as such conditions would be satisfied if the Offer were to
then expire), Purchaser is not required to, and Parent is not required to cause Purchaser to, further extend the Offer more than four (4) times in the aggregate; provided that Purchaser is not required to, and Parent is not required to cause
Purchaser to, extend the Offer beyond the Outside Date or the date the Merger Agreement is validly terminated in accordance with the terms thereof.
Offer Termination . The Merger Agreement provides that the Offer may not be terminated or withdrawn prior to any scheduled Expiration
Date, unless the Merger Agreement is validly terminated in accordance with its
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terms. If (i) at any then-scheduled Expiration Date, (a) the Minimum Tender Condition is not satisfied and (b) no additional extensions or
re-extensions of the Offer are required and Purchaser does not elect to extend the Offer (the “ Offer Termination ”), in each case, as described in “ The Tender
Offer—Section 11. Summary of the Merger Agreement and Certain Other Agreements—Extensions of the Offer ,” or (ii) the Merger Agreement is terminated pursuant to its terms, then, in each case, Purchaser
will promptly (and in any event no later than one (1) business day (determined as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) irrevocably and unconditionally terminate the Offer. If
the Offer is terminated or withdrawn by Purchaser, or the Merger Agreement is terminated in accordance with the terms thereof, Purchaser will return and cause the Depositary and Paying Agent to return, in accordance with applicable law, all tendered
Shares to the registered holders thereof.
The Merger Closing and Effective Time . The Merger Agreement provides that, upon the
terms and subject to the conditions of the Merger Agreement, and in accordance with Section 251(h) of the DGCL, without a vote on the adoption of the Merger Agreement by GLDD Stockholders, at the Effective Time (as defined herein), Purchaser
will be merged with and into GLDD, whereupon the separate existence of Purchaser will cease, and GLDD will survive the Merger as a wholly owned subsidiary of Parent, and will succeed to and assume all the rights and obligations of Purchaser and GLDD
in accordance with Section 259 of the DGCL.
The closing of the Merger (the “ Closing ”) will take place (i) as
soon as practicable on the same business day as the Acceptance Time or at another date and time agreed to in writing by Parent, Purchaser and GLDD prior to the Acceptance Time; provided that if the conditions to the Closing shall not be satisfied or
waived in accordance with the terms of the Merger Agreement by such date, the Closing shall occur on the first business day on which such conditions shall be satisfied or waived in accordance with the terms of the Merger Agreement. The date on which
the Closing actually occurs is referred to herein as the “ Closing Date .” For purposes of the Merger Agreement, “ business day ” refers to any day except a Saturday or Sunday or any other day on which commercial
banks are required or authorized by law to close in New York, New York.
Concurrently with the Closing, GLDD will file a certificate of
merger with the Secretary of State of the State of Delaware. The Merger will become effective on the date and time when the certificate of merger has been duly filed with the Secretary of State of the State of Delaware or at such other date and time
as may be agreed by Parent, Purchaser and GLDD and specified in the certificate of merger (the “ Effective Time ”).
Organizational Documents; Directors and Officers of the Surviving Corporation . At the Effective Time, (i) the Second Amended and
Restated Certificate of Incorporation of GLDD, as in effect immediately prior to the Effective Time, will be amended and restated to read in its entirety to be in the form of the certificate of incorporation of Purchaser and to include the
provisions required by the terms of the Merger Agreement (except with respect to the name of the Surviving Corporation and provisions naming the initial board of directors or the incorporator) and, as so amended and restated, shall be the
certificate of incorporation of the Surviving Corporation and (ii) the Second Amended and Restated Bylaws of GLDD, as in effect immediately prior to the Effective Time, shall be amended and restated in their entirety to read as the bylaws of
Purchaser and to include the provisions required by the terms of the Merger Agreement (except with respect to the name of the Surviving Corporation), and as so amended and restated, shall be the bylaws of the Surviving Corporation, in each case
until thereafter amended in accordance with applicable law and the applicable provisions of the certificate of incorporation and bylaws of the Surviving Corporation.
As of, and immediately following the Effective Time, (i) the board of directors of the Surviving Corporation will consist of the members
of the board of directors of Purchaser immediately prior to the Effective Time, and (ii) the officers of GLDD at the Effective Time will be the officers of the Surviving Corporation, each to hold office in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation, in each case. GLDD has agreed to use its reasonable best efforts to cause each director of GLDD immediately prior to the Effective Time to execute and deliver a letter effectuating his or her
resignation as a director of GLDD, conditioned upon and effective as of the Effective Time.
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Conversion of Shares . At the Effective Time, by virtue of the Merger and without any
action required by any party to the Merger Agreement or any GLDD Stockholder, each Share issued and outstanding immediately prior to the Effective Time other than Shares (i) held by GLDD in treasury or owned of record by GLDD or any subsidiary
of GLDD, and Shares owned of record by Parent, Purchaser (including Shares irrevocably accepted for payment by Purchaser in the Offer) or any of their respective wholly-owned subsidiaries (in each case, other than those held on behalf of any third
party) shall be canceled and cease to exist, with no payment being made with respect thereto (“ Canceled Shares ”), and (ii) held by any GLDD Stockholders who have properly demanded appraisal rights of such Shares under, and
who comply in all respects with, Section 262 of the DGCL and have not validly revoked such demand (“ Dissenting Shares ”), will automatically be converted into the right to receive the Merger Consideration, without interest,
subject to any required tax withholdings. All of the aforementioned Shares will cease to be outstanding, will be canceled and will cease to exist, and each certificate representing a Share (a “ Certificate ”) or non-certificated Share represented by book-entry (“ Book-Entry Shares ”) that formerly represented any of the Shares (other than Canceled Shares and Dissenting Shares) will thereafter be canceled
and cease to have any rights with respect thereto, except the right to receive the Merger Consideration without interest thereon, subject to any required tax withholdings, upon surrender of such Certificate or Book-Entry Share, in each case, as
described in “ The Tender Offer—Section 11. Summary of the Merger Agreement and other Agreements—Exchange and Payment Procedures ” and “The Tender Offer—Section 3. Procedures for
Tendering Shares.”
Treatment of RSUs, GLDD DSUs, GLDD Stock Plans, and GLDD ESPP.
Prior to the Effective Time, the GLDD Board (or, if appropriate, any committee thereof) will validly adopt resolutions that provide that,
immediately prior to the Effective Time, (i) each award of restricted stock units in respect of Shares (“ RSUs ”), including any deferred stock units under the Great Lakes Dredge & Dock Corporation Director Deferral
Plan (“ GLDD DSU ”), that is subject only to time-based vesting conditions (each, a “ Time-Based RSU Award ”) and each award of RSUs that is subject to performance-based vesting conditions (each, a
“ Performance-Based RSU Award ”), in each case that was granted pursuant to a GLDD Stock Plan (as defined below) (each Time-Based RSU Award and each Performance-Based RSU Award is sometimes referred to as a “ GLDD RSU
Award ”) that is outstanding immediately prior to the Effective Time (other than GLDD RSU Awards granted after the date of the Merger Agreement and prior to the Effective Time (the “ 2026 GLDD RSU Awards ”), which shall be
treated as described below) shall be fully vested as of the Effective Time, (ii) the performance-based vesting conditions applicable to any such Performance-Based RSU Award granted prior to the date of the Merger Agreement shall be deemed to be
achieved at: (A) the actual level of performance achieved for any annual performance period that has ended prior to the date of the Merger Agreement (as determined by the compensation committee of the GLDD Board prior to the date of the Merger
Agreement), (B) the projected actual level of performance in respect of metrics established as of the date of the Merger Agreement and applicable to the 2026 annual performance period (with such projection made by the compensation committee of the
GLDD Board prior to the date of the Merger Agreement); and (C) the target level of performance in respect of metrics applicable to the (1) 2027 annual performance period and (2) metrics not established as of the date of the Merger
Agreement and applicable to the 2026 annual performance period; provided, however, for such Performance-Based RSU Awards subject to performance-based vesting conditions that do not provide for a target level of performance (“ Special
PSUs ”), such Special PSUs will be deemed to have achieved all conditions applicable to such Special PSUs, (iii) the performance-based vesting conditions applicable to any Performance-Based RSU Award granted after the date of the
Merger Agreement shall be deemed to be achieved at the target level of performance, and (iv) each such GLDD RSU Award shall be canceled by virtue of the Merger and without any action on the part of the holder thereof and, in exchange therefor,
each holder of any such canceled GLDD RSU Award shall be entitled to receive, in consideration of the cancellation of such GLDD RSU Award and in settlement therefor, a payment in cash of an amount equal to the product of (A) the Merger
Consideration multiplied by (B) in the case of a Time-Based RSU Award, the number of Shares subject to such GLDD RSU Award and, in the case of a Performance-Based RSU Award, the number of Shares earned or deemed earned with respect to such GLDD
RSU Award as provided herein, without interest (such amounts payable, together with such amounts payable in connection with the Closing in respect of the 2026
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GLDD RSU Awards granted after the date of the Merger Agreement and prior to the Effective Time (as described below), the “ RSU Payments ”) (less any required tax withholdings).
However, in the case of any such amounts that constitute non-qualified deferred compensation under Section 409A of the Code, the Surviving Corporation shall pay such amounts at the earliest time permitted
under the terms of the applicable agreement, plan or arrangement that will not trigger a tax or penalty under Section 409A of the Code.
Each 2026 GLDD RSU Award will vest on a pro-rated basis based on the period of time that the recipient
of such 2026 GLDD RSU Award was employed during the full vesting period ( i.e. , three years) between the date that such 2026 GLDD RSU Award was made and the Effective Time and will be canceled and the holder of such 2026 GLDD RSU Award will be
entitled to receive (A) with respect to the portion of such 2026 GLDD RSU Award that becomes vested, an amount in cash, without any interest thereon and subject to applicable tax withholding, equal to the product of (x) the Offer Price and
(y) the total number of Shares subject to such vested portion, and (B) with respect to the portion of such 2026 GLDD RSU Award that does not become vested, a cash-based replacement award of equivalent value (calculated based on product of
(x) the Offer Price and (y) the total number of Shares subject to such unvested portion) that is subject to the same time-based vesting conditions as applied to such unvested portion prior to the Effective Time (each, a
“ Replacement Award ”), in each case, subject to such recipient’s continued employment up to and including the Effective Time; provided, that, upon a recipient’s (1) termination without “cause” (as such
term is defined in the recipient’s employment agreement, or if not applicable, in GLDD’s severance plan) or (2) in the case of a recipient with an employment agreement, resignation for “good reason” (as defined in the
applicable employment agreement), 100% of the Replacement Award will immediately vest and become payable in a manner that complies with Section 409A of Code.
Termination of GLDD Stock Plans and Director Deferral Plan . The GLDD Board validly adopted resolutions to provide that, as of the
Closing, GLDD’s 2017 Long-Term Incentive Plan and GLDD’s 2021 Long-Term Incentive Plan (the “ GLDD Stock Plans ”) and the Director Deferral Plan shall terminate, and no further GLDD RSU Awards or other rights with
respect to Shares will be granted thereunder.
Parent Funding . With respect to the RSU Payments, (i) at the Effective Time,
Parent will deposit with the Surviving Corporation cash in the amount necessary to make any such RSU Payments that are payable to employees or former employees of GLDD and its subsidiaries and shall cause the Surviving Corporation to make any such
RSU Payments as promptly as practicable after the Effective Time and (ii) as promptly as practicable after the Effective Time, Parent will pay or cause to be paid (through the Depositary and Paying Agent or otherwise) any such RSU Payments
payable to members of the GLDD Board that are not also employees of the GLDD or its subsidiaries.
GLDD ESPP . The GLDD Board (or,
if appropriate, any committee thereof) shall validly adopt resolutions providing that, and GLDD shall take all action necessary so that (i) no Offering Period (as defined in the GLDD 2025 Employee Stock Purchase Plan (the “ GLDD
ESPP ”)) under the GLDD ESPP shall commence or be extended on or after the date of the Merger Agreement, (ii) no new participants will be permitted to participate in the GLDD ESPP from and after the date of the Merger Agreement,
(iii) participants in the GLDD ESPP will not be permitted to increase their payroll deduction percentage under the GLDD ESPP, and (iv) the existing Offering Period shall terminate on the earlier of the date that is (A) five (5)
business days prior to the date on which the Acceptance Time occurs and (B) the final day of the existing Offering Period pursuant to the terms of the GLDD ESPP and all participant contributions under the GLDD ESPP shall be used to purchase
Shares on the earlier of the dates set forth of clauses (A) and (B) in accordance with the terms of the GLDD ESPP. Immediately prior to and effective as of the Effective Time, GLDD will terminate the GLDD ESPP.
Exchange and Payment Procedures . Substantially concurrently with the Acceptance Time, Parent or Purchaser will deposit (or cause to be
deposited) with the Depositary and Paying Agent, in immediately available funds, a cash amount equal to the sum of (i) the product of (a) the Offer Price multiplied by (b) the number of Shares that Purchaser becomes obligated
to purchase pursuant to the Offer (such amount described in this clause (i), the “ Aggregate Offer Consideration ”) plus (ii) the product of (a) the Merger Consideration multiplied by (b) the number
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of Shares issued and outstanding immediately prior to the Effective Time (other than Canceled Shares and Dissenting Shares) (such amount described in this clause (ii), the “ Aggregate
Common Stock Consideration ”, and the sum of the Aggregate Offer Consideration and the Aggregate Common Stock Consideration, the “ Exchange Fund ”).
As promptly as practicable after the Effective Time (and in any event not later than the second business day thereafter), Parent will cause
the Depositary and Paying Agent to mail to each holder of record of a Certificate whose Shares were converted into the right to receive the Merger Consideration pursuant to the terms of the Merger Agreement (i) a letter of transmittal, which
will specify that delivery will be effected, and risk of loss and title to the Certificates will pass, only upon delivery of the Certificate (or affidavit of loss in lieu thereof) to the Depositary and Paying Agent, and will otherwise be in such
form and have such other provisions as Parent may reasonably specify, subject to the reasonable consent of GLDD, and (ii) instructions for effecting the surrender of the Certificates in exchange for payment of the Merger Consideration (and such
other customary documents as may be required by the Depositary and Paying Agent).
Upon surrender of a Certificate (or affidavit of loss
in lieu thereof) for cancellation to the Depositary and Paying Agent, and upon delivery of a letter of transmittal, duly executed and in proper form, with respect to such Certificate, the holder of such Certificate shall be entitled to receive in
exchange therefor the portion of the Exchange Fund into which the Shares formerly represented by such Certificate were converted pursuant to the terms of the Merger Agreement (less any required tax withholdings), and the Certificate so surrendered
will be canceled. In the event of a transfer of ownership of Shares that is not registered in the transfer records GLDD, payment may be made and Merger Consideration may be issued to a person other than the person in whose name the Certificate so
surrendered is registered, if such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and the person requesting such payment shall pay to the Depositary and Paying Agent any transfer and other similar taxes
required by reason of the payment of the Merger Consideration to a person other than the registered holder of the Certificate so surrendered or shall establish to the reasonable satisfaction of the Surviving Corporation, that such taxes either have
been paid or are not required to be paid.
Each registered holder of a Book-Entry Share will, upon receipt by the Depositary and Paying
Agent of an Agent’s Message (or such other evidence, if any, as the Depositary and Paying Agent may reasonably request) in respect of such Book-Entry Shares, be entitled to receive the Merger Consideration, and Parent shall cause payment of
the Merger Consideration with respect to Book-Entry Shares (less any required tax withholdings) to be made by the Depositary and Paying Agent to the person in whose name such Book-Entry Shares are registered.
No interest shall be paid or accrue on any portion of the Merger Consideration payable upon surrender of any Certificate (or affidavit of loss
in lieu thereof) or in respect of any Book-Entry Share.
At any time following the first anniversary of the Effective Time, the Surviving
Corporation will be entitled to require the Depositary and Paying Agent to deliver to it any portion of the cash deposited with the Depositary and Paying Agent not disbursed to GLDD Stockholders, and thereafter such GLDD Stockholders (other than
holders of Dissenting Shares) shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar laws) as general creditors thereof with respect to the Merger Consideration payable upon due surrender
of their Shares and compliance with the procedures set forth in the Merger Agreement, without interest.
Representations and
Warranties . The Merger Agreement contains representations and warranties of GLDD, Parent and Purchaser.
The Merger Agreement contains
representations and warranties of GLDD, subject to certain exceptions in the Merger Agreement, in the GLDD Disclosure Letter delivered in connection with the Merger Agreement and in GLDD’s public filings, as to, among other things:
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organization and qualification to do business of GLDD and its subsidiaries;
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capitalization;
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subsidiaries;
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corporate power and authority relating to the execution, delivery and performance of the Merger Agreement;
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consents and approvals relating to the execution, delivery and performance of the Merger Agreement and
consummation of the Transactions and the absence of certain violations;
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compliance with applicable laws; possession of permits and certifications and eligibility for government
contracts;
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timely filing of Securities and Exchange Commission filings, accuracy and completeness of the Securities and
Exchange Commission filings including GLDD financial statements, absence of certain Securities and Exchange Commission investigations, and compliance with rules and regulations of Nasdaq;
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the accuracy of the information supplied by GLDD and its subsidiaries for the purposes of inclusion or
incorporation by reference in Parent’s and Purchaser’s Schedule TO or GLDD’s corresponding Schedule 14D-9;
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maintenance of internal controls and disclosure controls over financial reporting;
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the absence of certain changes affecting GLDD;
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the absence of certain undisclosed liabilities;
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the absence of certain litigation;
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employee benefit plans and other agreements, plans and policies with or concerning employees;
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labor and employment matters;
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tax matters;
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owned real property and leased real property matters;
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environmental matters;
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intellectual property;
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privacy and cybersecurity;
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material contracts;
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insurance policies;
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the opinion of GLDD’s financial advisor;
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takeover statutes and anti-takeover provisions;
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brokers’ fees;
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material customers and material suppliers;
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government contracts;
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vessels owned by GLDD or its subsidiaries and vessels owned by a third party and chartered in by GLDD or its
subsidiaries pursuant to a bareboat charter (“ GLDD Vessels ”);
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trade controls; and
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exclusivity of GLDD’s representations and warranties in the Merger Agreement.
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The Merger Agreement also contains representations and warranties
### EX-99.(A)(1)(B) - EX-99.(A)(1)(B)
EX-99.(A)(1)(B)
3
d94032dex99a1b.htm
EX-99.(A)(1)(B)
EX-99.(a)(1)(B)
Exhibit (a)(1)(B)
LETTER OF TRANSMITTAL
To
Tender Shares of Common Stock
of
GREAT LAKES DREDGE & DOCK CORPORATION
a Delaware corporation
at
$17.00 PER SHARE
Pursuant to the Offer to Purchase
dated March 4, 2026
by
HURON MERGECO., INC.
a wholly owned subsidiary of
SALTCHUK RESOURCES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE AFTER 11:59 P.M., NEW YORK CITY TIME, ON MARCH 31, 2026,
UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
The Depositary for the Offer is:
Broadridge Corporate Issuer Solutions, LLC
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If delivering by mail: |
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If delivering by express mail, courier, or other expedited service: |
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Broadridge, Inc.
Attn: BCIS Re-Organization Dept.
P.O. Box 1317
Brentwood,
NY 11717-0718
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Broadridge, Inc.
Attn: BCIS IWS
51 Mercedes Way
Edgewood,
NY 11717
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Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery to
the Depositary (as defined below). You must sign this Letter of Transmittal in the appropriate space provided therefor below, with signature guaranteed, if required, and complete and sign the Internal Revenue Service (“IRS”) Form W-9 included in this Letter of Transmittal, if you are a U.S. person. Stockholders who are not U.S. persons should submit a properly completed and signed IRS Form W-8BEN or
IRS Form W-8BEN-E, as applicable, or other appropriate IRS Form W-8. Failure to provide the information on IRS Form W-9 or an appropriate IRS Form W-8, as applicable, may subject you to U.S. backup withholding on any payments made to you pursuant to the Offer (as defined below). The
instructions set forth in this Letter of Transmittal should be read carefully before you tender any of your Shares (as defined below) into the Offer (as defined below).
DESCRIPTION OF SHARES TENDERED
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Shares Tendered |
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Name(s) and Address(es) of Registered Holder(s)
(Please fill in exactly as name(s) appear(s)
on
certificate(s)) (Attach additional signed list if
necessary)
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Certificate
Number(s) (*) |
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Total Number of
Shares Represented
by Certificate(s) |
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Total Number of
Shares Represented
by Book-Entry |
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Total Number of
Shares
Tendered(**) |
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Total Shares |
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(*) |
Certificate numbers are not required if tendered shares are held in book-entry form.
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(**) |
Unless a lower number of Shares to be tendered is otherwise indicated, it will be assumed that all Shares
described above are being tendered. See Instruction 4.
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The Offer (as defined below) is not being made to (and no
tenders will be accepted from or on behalf of) holders of Shares (as defined below) in any state in which the making of the Offer or acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such
state.
This Letter of Transmittal is to be used by stockholders of Great Lakes Dredge & Dock Corporation (“GLDD”),
if certificates for Shares (the “Share Certificates”) are to be forwarded herewith or if Shares are held in registered book-entry form. This Letter of Transmittal should not be delivered to the Depositary(as defined below) if Shares are
tendered through an Agent’s Message (as defined in Section 3 of the Offer to Purchase (as defined below)) in connection with a book-entry transfer to an account maintained by the Depositary at The Depository Trust Company
(“DTC”) (pursuant to the procedures set forth in Section 3 of the Offer to Purchase). Delivery of documents to DTC does not constitute delivery to the Depositary.
Additional Information if Shares Have Been Lost
If Share Certificates you are tendering with this Letter of Transmittal have been lost, stolen, destroyed or mutilated, you should contact
Broadridge Corporate Issuer Solutions, LLC, as GLDD’s transfer agent (the “Transfer Agent”) to arrange for the replacement of securities at 1-866-321-8022 or shareholder@broadridge.com. You may be required to post a bond to secure against the risk that the Share Certificates may be subsequently recirculated. You are urged to contact the
Depositary immediately in order to receive further instructions, for a determination of whether you will need to provide additional information or materials to permit timely processing of this documentation. See Instruction 11.
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CHECK HERE IF YOU HAVE LOST YOUR SHARE CERTIFICATE(S) AND REQUIRE ASSISTANCE IN OBTAINING REPLACEMENT
CERTIFICATE(S). BY CHECKING THIS BOX, YOU UNDERSTAND THAT YOU MUST CONTACT THE TRANSFER AGENT TO OBTAIN INSTRUCTIONS FOR REPLACING LOST CERTIFICATES. SEE INSTRUCTION 11.
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NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned
hereby tenders to Huron MergeCo., Inc., a Delaware corporation (“Purchaser”), the above described shares of common stock, par value $0.0001 per share (the “Shares”), of Great Lakes Dredge & Dock Corporation, a
Delaware corporation (“GLDD”), at a purchase price of $17.00 per Share, net to the seller in cash, without interest (the “Offer Price”) and less any required withholding taxes, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated March 4, 2026 (the “Offer to Purchase”), and in this Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase and other related materials, as
each may be amended and supplemented from time to time, constitutes the “Offer”), receipt of which is hereby acknowledged.
Upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of any such extension or
amendment), and effective upon acceptance for payment of the Shares validly tendered herewith and not properly withdrawn prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase) in accordance with the terms of the Offer,
the undersigned hereby sells, assigns and transfers to Purchaser, upon acceptance thereof, all right, title and interest in and to all of the Shares that are being tendered hereby (and any and all dividends, distributions, rights, other Shares or
other securities issued or issuable in respect thereof on or after the date hereof (collectively, “Distributions”)) and irrevocably constitutes and appoints Broadridge Corporate Issuer Solutions, LLC (the “Depositary”) the
true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and any and all Distributions), with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest in the Shares tendered by this Letter of Transmittal), to (i) deliver Share Certificates for such Shares (and any and all Distributions) or transfer ownership of such
Shares (and any and all Distributions) on the account books maintained by DTC, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the acceptance of Purchaser, (ii) present such Shares (and any
and all Distributions) for transfer on the books of GLDD and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any and all Distributions), all in accordance with the terms and subject to
the conditions of the Offer.
By executing this Letter of Transmittal, the undersigned hereby irrevocably appoints each of the designees
of Purchaser the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, (i) to vote at any annual or special meeting of
GLDD’s stockholders or any adjournment or postponement thereof or otherwise in such manner as each such attorney-in-fact and proxy or its, his or her substitute
shall in its, his or her sole discretion deem proper, (ii) to execute any written consent concerning any matter as each such attorney-in-fact and proxy or its, his
or her substitute shall in its, his or her sole discretion deem proper and (iii) to otherwise act as each such attorney-in-fact and proxy or its, his or her
substitute shall in its, his or her sole discretion deem proper, in each case, with respect to all of the Shares (and any and all Distributions) tendered hereby and accepted for payment by Purchaser. This appointment will be effective if and when,
and only to the extent that, Purchaser accepts such Shares for payment pursuant to the Offer. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Shares in accordance with the terms
of the Offer. Such acceptance for payment shall, without further action, revoke any prior powers of attorney and proxies granted by the undersigned at any time with respect to such Shares (and any and all Distributions), and no subsequent powers of
attorney, proxies, consents or revocations may be given by the undersigned with respect thereto (and, if given, will not be deemed effective). Purchaser reserves the right to require that, in order for the Shares to be deemed validly tendered,
immediately upon Purchaser’s acceptance for payment of such Shares, Purchaser or its designees must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions), including voting at any
meeting of GLDD’s stockholders.
The undersigned hereby represents and warrants that the undersigned has full power and authority to
tender, sell, assign and transfer any and all of the Shares tendered hereby (and any and all Distributions) and that, when the same are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered
title to such Shares (and such Distributions), free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claims. The undersigned will,
upon request, execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby (and any and all Distributions). In addition,
the undersigned shall remit and transfer promptly to the Depositary for the account of Purchaser all Distributions in respect of any and all of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and, pending such
remittance and transfer or appropriate assurance thereof, Purchaser shall be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such
purchase price the amount or value of such Distribution as determined by Purchaser in its sole discretion.
All authority herein conferred
or agreed to be conferred shall not be affected by, and shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives,
trustees in bankruptcy, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT DELIVERY OF ANY SHARE CERTIFICATE SHALL BE EFFECTED, AND RISK OF LOSS AND TITLE TO SUCH SHARE
CERTIFICATE SHALL PASS, ONLY UPON THE PROPER DELIVERY OF SUCH SHARE CERTIFICATE TO THE DEPOSITARY.
Unless otherwise indicated under
“Special Payment Instructions,” please issue the check for the purchase price of all of the Shares purchased and, if appropriate, return any Share Certificates evidencing Shares not tendered or not accepted for payment in the name(s) of
the registered holder(s) appearing at the top of the Letter of Transmittal. Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for the purchase price of all of the Shares purchased and, if
appropriate, return any Share Certificates evidencing Shares not tendered or not accepted for payment (and any accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing at the top of the Letter of Transmittal.
In the event that the boxes entitled “Special Payment Instructions” and “Special Delivery Instructions” are both completed, please issue the check for the purchase price of all Shares purchased to and, if appropriate, return
any Share Certificates evidencing Shares not tendered or not accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, the person(s) so indicated. Unless otherwise indicated herein in the box entitled “Special
Payment Instructions,” please credit any Shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at DTC designated above. The undersigned recognizes that Purchaser has no obligation, pursuant
to the “Special Payment Instructions,” to transfer any Shares from the name of the registered holder thereof if Purchaser does not accept for payment any of the Shares so tendered.
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7)
To be completed ONLY if
the check for the purchase price of Shares accepted for payment and/or certificates for Shares not tendered or not accepted are to be issued in the name of someone other than the undersigned.
Issue check and/or certificates to:
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Name: |
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(Please Print) |
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Address: |
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(Include Zip Code) |
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(Taxpayer Identification or Social Security No.) |
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(Also complete, as applicable, IRS Form W-9 (included
below) or the appropriate IRS Form W-8)
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SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) |
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To be completed ONLY if the check for the purchase price of Shares accepted for payment and/or Share Certificates evidencing Shares not tendered or not accepted are to be mailed to someone other than the undersigned or
to the undersigned at an address other than that shown above. |
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Mail check and/or Share Certificates to: |
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Name: |
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(Please Print) |
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Address: |
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(Include Zip Code) |
IMPORTANT
STOCKHOLDER: SIGN HERE
(U.S. Holders: Please complete and return the IRS Form W-9 included below)
(Non-U.S. Holders: Please obtain, complete and return the appropriate IRS Form W-8)
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(Signature(s) of Holder(s) of Shares) |
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Dated: _______________ |
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Name(s): |
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(Please Print) |
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Capacity (full title) (See Instruction 5): |
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Address: |
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(Include Zip Code) |
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Area Code and Telephone No.: |
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Email Address: |
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Tax Identification or Social Security No. (See IRS Form W-9 included below): |
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(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s) or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent,
officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.)
ELIGIBLE INSTITUTION GUARANTEE
(ONLY IF REQUIRED – PLEASE SEE INSTRUCTION 1)
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Apply Eligible Institution
Guarantee
Stamp Here:
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Dated: _______________ |
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Authorized Signature: |
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Name (Please Print): |
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Capacity (full title)(Please Print): |
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Name of Financial Institution: |
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Area Code & Telephone No.: |
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INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures . No signature guarantee is required on this Letter of Transmittal (a) if this Letter of Transmittal is
signed by the registered holder(s) of Shares tendered herewith, unless such registered holder has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on this
Letter of Transmittal or (b) if such Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Securities
Transfer Agents Medallion Program or any other “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an
“Eligible Institution”). In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5.
2. Requirements of Tender . No alternative, conditional or contingent tenders will be accepted. In order for Shares to be validly
tendered pursuant to the Offer, one of the following procedures must be followed:
For Shares held as physical certificates, the Share
Certificates representing tendered Shares, a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees, and any other documents required by this Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the front page of this Letter of Transmittal before the Expiration Date.
For Shares held
in book-entry form, a properly completed and duly executed Letter of Transmittal, together with any required signature guarantees and any other required documents, must be received by the Depositary at one of its addresses set forth on the front
page of this Letter of Transmittal before the Expiration Date.
For Shares held in book-entry form in “street name,” an
Agent’s Message in lieu of this Letter of Transmittal, and such Shares must be delivered according to the book-entry transfer procedures (as set forth in Section 3 of the Offer to Purchase) and a timely confirmation of a book-entry
transfer of Shares into the Depositary’s account at DTC (a “Book-Entry Confirmation”) must be received by the Depositary before the Expiration Date.
The term “Agent’s Message” means a message transmitted by DTC to, and received by, the Depositary and forming part of a
Book-Entry Confirmation that states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares that are the subject of such Book-Entry Confirmation that such participant has received and agrees to be bound by
the terms of this Letter of Transmittal and that Purchaser may enforce such agreement against the participant.
The method of delivery
of Shares (including Share Certificates), this Letter of Transmittal and all other required documents, including delivery through DTC, is at the election and risk of the tendering stockholder. Shares will be deemed delivered (and the risk of loss of
Share Certificates will pass) only when actually received by the Depositary (including, in the case of a book-entry transfer, by Book-Entry Confirmation). If delivery is by mail, then registered mail with return receipt requested, properly insured,
is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
No fractional Shares will be purchased. By
executing this Letter of Transmittal, the tendering stockholder waives any right to receive any notice of the acceptance for payment of Shares.
3. Inadequate Space . If the space provided herein is inadequate, the Share Certificate numbers and/or the number of Shares tendered
should be listed on a separate signed schedule attached hereto.
4. Partial Tenders (Not Applicable to Stockholders who Tender by
Book-Entry Transfer) . If fewer than all the Shares represented by any Share Certificate delivered to the Depositary are to be tendered, fill in the number of Shares which are to be tendered in the box entitled “Total Number of Shares
Tendered”. In such case, a new certificate for the remainder of the Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as
promptly as practicable following the expiration or termination of the Offer. All Shares represented by Share Certificates delivered to the Depositary will be deemed to have been tendered unless
otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements .
a) Exact Signatures . If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the
signature(s) must correspond with the name(s) as written on the face of the Share Certificates or on a statement of shares held in registered book-entry form without alteration, enlargement or any change whatsoever.
b) Joint Holders . If any of the Shares tendered hereby are held of record by two or more persons, all such persons must sign this
Letter of Transmittal.
c) Different Names on Certificates . If any of the Shares tendered hereby are registered in different names
on different Share Certificates (if any), it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Shares or Share Certificates.
d) Endorsements . If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no endorsements of
Share Certificates or separate stock powers are required unless payment of the purchase price is to be made, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s). Signatures on any
such Share Certificates must be guaranteed by an Eligible Institution.
e) Stock Powers . If the Share Certificates are registered
in the name of a person other than the signer of this Letter of Transmittal, or if payment is to be made or Share Certificates not tendered or not accepted for payment are to be returned to a person other than the registered owner of the Share
Certificates surrendered, then the signature on this Letter of Transmittal, in either case, must be guaranteed as described above. See Instruction 1.
f) Evidence of Fiduciary or Representative Capacity . If this Letter of Transmittal or any Share Certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other legal entity or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence satisfactory to the Depositary of the authority of such person so to act must be submitted.
6. Stock Transfer Taxes . Except as otherwise provided in this Instruction 6, Purchaser or any successor entity thereto will pay all
stock transfer taxes with respect to the transfer and sale of any Shares pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include U.S. federal income taxes or withholding taxes). If, however, the Offer Price is to be paid to
any person(s) other than the registered holder(s), Purchaser or any successor entity thereto will not be responsible for any stock transfer or similar taxes (whether imposed on the registered holder(s) or such other person(s)) payable on account of
the transfer to such other person(s) and no consideration shall be paid in respect of such Share(s) unless evidence satisfactory to Purchaser of the payment of such taxes, or the inapplicability of such taxes, is submitted.
7. Special Payment and Delivery Instructions . If a check is to be issued for the purchase price of any Shares tendered by this Letter
of Transmittal in the name of, and, if appropriate, Share Certificates (if any) for Shares not tendered or not accepted for payment are to be issued or returned to, any person(s) other than the signer of this Letter of Transmittal or to an address
other than that shown in this Letter of Transmittal, the appropriate boxes on this Letter of Transmittal must be completed.
8. Tax
Withholding . Under U.S. federal income tax laws, the Depositary may be required to backup withhold a portion of any payment made to certain stockholders (or other payees) pursuant to the Offer. To avoid such backup withholding, each tendering
stockholder (or other payee) that is or is treated as a U.S. person (for U.S. federal income tax purposes) and that does not otherwise establish an exemption from U.S. federal backup
withholding should complete and return the attached IRS Form W-9, certifying that such stockholder (or other payee) is a U.S. person, that the taxpayer
identification number (“TIN”) provided is correct, and that such stockholder (or other payee) is not subject to backup withholding.
Certain stockholders and other payees (including, among others, corporations, non-resident foreign
individuals and foreign entities) generally are not subject to these backup withholding and reporting requirements if they properly demonstrate eligibility for exemption. Exempt U.S. persons should indicate their exempt status on IRS Form W-9. Exempt non-U.S. persons should complete, sign, and submit to the Depositary the appropriate IRS Form W-8. The appropriate IRS Form
W-8 may be downloaded from the IRS website at the following address: www.irs.gov. Failure to complete IRS Form W-9 or the appropriate IRS Form W-8 will not, by itself, cause Shares to be deemed invalidly tendered, but may require the Depositary to withhold a portion of any payment of the Offer Price made pursuant to the Offer.
Tendering stockholders (or other payees) should consult their tax advisors as to any qualification for exemption from backup withholding, and
the procedure for obtaining the exemption.
NOTE: FAILURE TO COMPLETE AND RETURN IRS FORM W-9
(OR APPROPRIATE IRS FORM W-8, AS APPLICABLE) MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENT MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE “IMPORTANT TAX INFORMATION” SECTION
BELOW.
See the instructions enclosed with the IRS Form W-9 included in this Letter of
Transmittal for more instructions.
9. Irregularities . All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares will be determined by Purchaser, in its sole discretion (which may be delegated in whole or in part to the Depositary), which determination shall be final and binding on all parties.
Purchaser reserves the absolute right to reject any and all tenders determined by us not to be in proper form or the acceptance for payment of which may, in the opinion of our counsel, be unlawful. Purchaser also reserves the absolute right to waive
any defect or irregularity in the tender of any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. No tender of Shares will be deemed to have been validly made until
all defects and irregularities have been waived or cured within such time as Purchaser shall determine. None of Purchaser, the Depositary, MacKenzie Partners, Inc. (the “Information Agent”) or any other person will be under any duty to
give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notice. Purchaser’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding.
10. Requests for Additional Copies . The Information Agent may be contacted at the address and
telephone number set forth on the last page of this Letter of Transmittal for questions and/or requests for additional copies of the Offer to Purchase, this Letter of Transmittal and other tender offer materials. You may also contact your broker,
dealer, commercial bank, trust company or other nominee for assistance. Such copies will be furnished promptly at Purchaser’s expense.
11. Lost, Stolen Destroyed or Mutilated Certificates . If any Share Certificate has been lost, stolen, destroyed or mutilated, the
stockholder should promptly notify the Transfer Agent, Broadridge Corporate Issuer Solutions, LLC, toll-free at 1-866-321-8022 or
shareholder@broadridge.com. The stockholder will then be instructed as to the steps that must be taken in order to replace such Share Certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for
replacing lost, stolen, destroyed or mutilated Share Certificates have been followed.
Share Certificates evidencing tendered Shares,
or a Book-Entry Confirmation into the Depositary’s account at DTC, as well as this Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or an Agent’s Message (if utilized in lieu of this
Letter of Transmittal in connection with a book-entry transfer), and any other documents required by this Letter of Transmittal, must be received before the Expiration Date.
IMPORTANT TAX INFORMATION
Under U.S. federal income tax law, a stockholder who is a U.S. person (as defined for U.S. federal income tax purposes) surrendering Shares
must, unless an exemption applies, provide the Depositary (as payer) with the stockholder’s correct TIN on IRS Form W-9, a copy of which is included in this Letter of Transmittal. If the stockholder is
an individual, the stockholder’s TIN is generally such stockholder’s Social Security number. If the correct TIN is not provided, the stockholder may be subject to a penalty imposed by the IRS and payments of cash to the stockholder (or
other payee) pursuant to the Offer may be subject to U.S. federal backup withholding (currently imposed at a rate of 24%).
Certain
stockholders (including, among others, certain corporations and certain foreign individuals and entities) generally are not subject to backup withholding and reporting requirements if they properly demonstrate eligibility for exemption. Exempt U.S.
persons should furnish their TIN, provide the applicable information on IRS Form W-9 and sign, date and return IRS Form W-9 to the Depositary in order to avoid erroneous
backup withholding. See the instructions enclosed with IRS Form W-9 included in this Letter of Transmittal for additional instructions. In order for an exempt stockholder that is not a U.S. person to avoid
backup withholding, such stockholder should complete and submit an appropriate IRS Form W-8 signed under penalties of perjury, attesting to his, her or its exempt status. IRS Forms W-8 can be obtained from the Depositary or from the IRS website (at http://www.irs.gov ). Such stockholders should consult a tax advisor to determine which version of IRS Form
W-8 is appropriate.
If backup withholding applies, the Depositary is required to withhold and pay
over to the IRS a portion of any payment made to a stockholder. Backup withholding is not an additional tax. If backup withholding results in an overpayment of taxes, a refund may be obtained from the IRS provided the required information is timely
provided to the IRS.
NOTE: FAILURE BY A U.S. PERSON TO COMPLETE AND RETURN THE IRS FORM W-9 INCLUDED IN THIS
LETTER OF TRANSMITTAL MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE INSTRUCTIONS ENCLOSED WITH THE IRS FORM W-9 INCLUDED IN THIS LETTER OF
TRANSMITTAL FOR ADDITIONAL DETAILS.
The Information Agent may be contacted at the address and telephone number listed below for questions and/or
requests for additional copies of the Offer to Purchase, this Letter of Transmittal and other tender offer materials. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance. Such copies will be
furnished promptly at Purchaser’s expense.
The Information Agent for the Offer is:
7 Penn Plaza
New York, New York 10001
(212) 929-5500
or
Call Toll-Free (800) 322-2885
Email: tenderoffer@mackenziepartners.com
### EX-99.(A)(1)(C) - EX-99.(A)(1)(C)
EX-99.(A)(1)(C)
4
d94032dex99a1c.htm
EX-99.(A)(1)(C)
EX-99.(a)(1)(C)
Exhibit (a)(1)(C)
Offer to Purchase
All
Outstanding Shares of Common Stock
of
GREAT LAKES DREDGE & DOCK CORPORATION
at
AN OFFER PRICE OF
$17.00 PER SHARE IN CASH
Pursuant to the Offer to Purchase
Dated March 4, 2026
by
HURON MERGECO., INC.,
a wholly owned subsidiary
of
SALTCHUK RESOURCES,
INC.
|
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE ONE MINUTE AFTER
11:59 P.M., NEW YORK CITY TIME, ON MARCH 31, 2026, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
|
March 4, 2026
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been engaged by Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a wholly owned subsidiary of Saltchuk Resources,
Inc., a Washington corporation (“ Parent ”), to act as information agent (“ Information Agent ”) in connection with Purchaser’s offer to purchase all of the issued and outstanding shares of common stock, par
value $0.0001 per share (the “ Shares ”), of Great Lakes Dredge & Dock Corporation, a Delaware corporation (“ GLDD ”), for $17.00 per Share in cash ( the “ Offer Price ”) upon the terms and
subject to the conditions described in the Offer to Purchase (together with any amendments or supplements thereto, the “ Offer to Purchase ”) and in the related Letter of Transmittal (together with any amendments or supplements
thereto, the “ Letter of Transmittal ” and, together with the Offer to Purchase, the “ Offer ”) enclosed herewith. Please furnish copies of the enclosed materials to those of your clients for whom you hold Shares
registered in your name or in the name of your nominee.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of
February 10, 2026, by and among GLDD, Parent and Purchaser (together with any amendments or supplements thereto, the “ Merger Agreement ”), pursuant to which, after the completion of the Offer and the satisfaction or, to the
extent permitted by the Merger Agreement, waiver of certain conditions, Purchaser will be merged with and into GLDD, without a meeting, vote or any further action of the stockholders of GLDD (“ GLDD Stockholders ”) in accordance
with Section 251(h) of the General Corporation Law of the State of Delaware (the “ DGCL ”), whereupon the separate existence of Purchaser will cease and GLDD will survive the merger as a wholly owned subsidiary of Parent (such
merger, the “ Merger ” and the Merger, together with the Offer and the other transactions contemplated by the Merger Agreement, the “ Transactions ”).
After careful consideration, the board of directors of GLDD has unanimously: (i) determined that it is in the best interests of GLDD and GLDD
Stockholders for GLDD to enter into the Merger Agreement and declared the Merger Agreement and the Transactions, including the Offer and the Merger, advisable, (ii) approved the execution, delivery and performance of, and adopted, the Merger
Agreement and the consummation of the Transactions, including the Merger and the Offer, in accordance with the DGCL, (iii) resolved that the Merger shall be effected under and governed by Section 251(h) of the DGCL, and
(iv) recommended that GLDD Stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
The Offer is not subject to
any financing condition. The conditions to the Offer are described in “ The Tender Offer—Section 15. Conditions of the Offer ” of the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the
following documents:
|
1. |
The Offer to Purchase;
|
|
2. |
The Letter of Transmittal (including Form W-9) for your use in
accepting the Offer and tendering Shares and for the information of your clients, together with “Important Tax Information” providing information relating to backup U.S. federal income tax withholding;
|
|
3. |
A form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name
or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer; and
|
|
4. |
GLDD’s Solicitation/Recommendation Statement on Schedule 14D-9.
|
Your prompt action is requested. We urge you to contact your clients as promptly as possible. Please note that the Offer and
withdrawal rights will expire one minute after 11:59 p.m., New York City Time, on March 31, 2026, unless the Offer is extended or earlier terminated.
For Shares to be properly tendered pursuant to the Offer, Broadridge Corporate Issuer Solutions, Inc., the
depositary and paying agent for the Offer (the “ Depositary and Paying Agent ”), must be in timely receipt of (i) certificates representing such Shares or confirmation of the book-entry transfer of such Shares into an account
maintained by the Depositary and Paying Agent at The Depository Trust Company pursuant to the procedures set forth in “ The Tender Offer—Section 3. Procedures for Tendering Shares ,” of the Offer to
Purchase, (ii) a Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message (as defined in the Offer to Purchase) in lieu of the Letter
of Transmittal) and (iii) any other documents required by the Letter of Transmittal or any other customary documents required by Depositary and Paying Agent, in each case prior to the expiration of the Offer in accordance with the Offer to
Purchase and the Letter of Transmittal.
Except as set forth in the Offer to Purchase, neither Parent nor Purchaser will pay any fees or commissions to
any broker or dealer or other person (other than the Depositary and Paying Agent and the Information Agent as described in the Offer to Purchase) for soliciting tenders of Shares pursuant to the Offer. Purchaser will, however, upon request,
reimburse brokers, dealers, commercial banks and trust companies for customary mailing and handling expenses incurred by them in forwarding the offering materials to their customers.. Purchaser will pay all stock transfer taxes applicable to its
purchase of Shares pursuant to the Offer, subject to Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer
should be addressed to, and additional copies of the enclosed materials may be obtained from, the undersigned at the addresses and telephone numbers set forth on the back cover of the Offer to Purchase.
Very truly yours,
MacKenzie Partners, Inc.
Nothing contained herein or in the enclosed documents shall render you the agent of the Purchaser, the Information Agent or the Depositary and Paying Agent
or any affiliate of any of them or authorize you or any other person to use any document or make any statement on behalf of any of them in connection with the Offer other than the enclosed documents and the statements contained therein.
### EX-99.(A)(1)(D) - EXEX-99.(A)(1)(D)
EX-99.(A)(1)(D)
5
d94032dex99a1d.htm
EXEX-99.(A)(1)(D)
exEX-99.(a)(1)(D)
Exhibit (a)(1)(D)
Offer to Purchase
All
Outstanding Shares of Common Stock
of
GREAT LAKES DREDGE & DOCK CORPORATION
at
AN OFFER PRICE OF
$17.00 PER SHARE IN CASH
Pursuant to the Offer to Purchase
Dated March 4, 2026
by
HURON MERGECO.,
INC.,
a wholly owned subsidiary
of
SALTCHUK RESOURCES,
INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE ONE MINUTE AFTER 11:59 P.M., NEW YORK CITY
TIME, ON MARCH 31, 2026, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
March 4, 2026
To Our Clients:
Enclosed for your
consideration are the Offer to Purchase, dated March 4, 2026 (together with any amendments or supplements thereto, the “ Offer to Purchase”), and the related Letter of Transmittal (together with any amendments or supplements
thereto, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”) in connection with the Offer by Huron MergeCo., Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary
of Saltchuk Resources, Inc., a Washington corporation (“Parent”), to purchase all of the issued and outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Great Lakes Dredge & Dock
Corporation, a Delaware corporation (“GLDD”), for $17.00 per Share in cash (the “Offer Price”) upon the terms and subject to the conditions described in the Offer to Purchase and the related Letter of Transmittal.
Also enclosed is GLDD’s Solicitation/Recommendation Statement on Schedule 14D-9.
THE BOARD OF DIRECTORS OF GLDD HAS UNANIMOUSLY RECOMMENDED THAT YOU ACCEPT THE OFFER AND TENDER YOUR SHARES TO PURCHASER PURSUANT TO THE
OFFER.
We or our nominees are the holder of record of Shares held for your account. A tender of such Shares can be made only by us
as the holder of record and pursuant to your instructions. The Letter of Transmittal accompanying this letter is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account.
We request instructions as to whether you wish us to tender any or all of the Shares held by us for your account, upon the terms and subject
to the conditions set forth in the enclosed Offer to Purchase and the Letter of Transmittal.
Please note carefully the following:
1. The Offer Price for the Offer is $17.00 per Share in cash, to be paid to you subject to any required tax withholdings and without interest.
2. The Offer is being made for all issued and outstanding Shares.
3. The Offer and withdrawal rights will expire at one minute past 11:59 p.m. New York City time on March 31, 2026, unless the Offer is extended or
earlier terminated by Purchaser.
4. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of February 10, 2026, by and
among GLDD, Parent and Purchaser (together with any amendments or supplements thereto, the “ Merger Agreement ”), pursuant to which, after the completion of the Offer and the satisfaction or, to the extent permitted by the Merger
Agreement, waiver of certain conditions, Purchaser will be merged with and into GLDD, without a meeting, vote or any further action of GLDD’s stockholders (“ GLDD Stockholders ”) in accordance with Section 251(h) of the
General Corporation Law of the State of Delaware (the “ DGCL ”), whereupon the separate existence of Purchaser will cease and GLDD will survive the merger as a wholly owned subsidiary of Parent (such merger, the
“ Merger ” and the Merger, together with the Offer and the other transactions contemplated by the Merger Agreement, the “ Transactions ”).
5. After careful consideration, the board of directors of GLDD has unanimously: (i) determined that it is in the best interests of GLDD and GLDD
Stockholders for GLDD to enter into the Merger Agreement and declared the Merger Agreement and the Transactions, including the Offer and the Merger, advisable, (ii) approved the execution, delivery and performance of, and adopted, the Merger
Agreement and the consummation of the Transactions, including the Merger and the Offer, in accordance with the DGCL, (iii) resolved that the Merger
shall be effected under and governed by Section 251(h) of the DGCL, and (iv) recommended that GLDD Stockholders accept the Offer and tender their Shares to Purchaser pursuant to the
Offer.
6. The Offer is not subject to any financing condition. The Offer is subject to certain conditions described in “ The Tender
Offer—Section 15. Conditions of the Offer ” of the Offer to Purchase.
7. Any transfer taxes applicable to the sale of
Shares to Purchaser pursuant to the Offer will be paid by Purchaser, except as otherwise provided in Instruction 6 of the Letter of Transmittal.
If you wish to have us tender any or all of your Shares, then please so instruct us by completing, executing, detaching and returning to us
the Instruction Form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize tender of your Shares, then all such Shares will be tendered unless otherwise specified on the Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit the tender on your
behalf before the expiration of the Offer.
The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders
of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction, and Purchaser is not aware of any jurisdiction in which the making of the Offer or the tender of
Shares in connection therewith would not be in compliance with the laws of such jurisdiction. If Purchaser becomes aware of any jurisdiction in which the making of the Offer would not be in compliance with applicable law, Purchaser will make a good
faith effort to comply with any such law. If, after such good faith effort, Purchaser cannot comply with any such law, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares residing in such
jurisdiction. In those jurisdictions where applicable laws require that the Offer be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws
of such jurisdiction to be designated by Purchaser.
INSTRUCTION FORM
With Respect to the Offer to Purchase
All Outstanding Shares of Common Stock of
GREAT LAKES DREDGE & DOCK CORPORATION
at
AN OFFER PRICE OF
$17.00 PER SHARE IN CASH
Pursuant to the Offer to Purchase
Dated March 4, 2026
by
HURON MERGECO., INC.,
a wholly owned subsidiary
of
SALTCHUK RESOURCES,
INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated March 4, 2026 (together with any
amendments or supplements thereto, the “ Offer to Purchase ”), and the related Letter of Transmittal (together with any amendments or supplements thereto, the “ Letter of Transmittal ” and, together with the Offer
to Purchase, the “ Offer ”), in connection with the offer by Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a wholly owned subsidiary of Saltchuk Resources, Inc., a Washington corporation
(“ Parent ”), to purchase all of the issued and outstanding shares of common stock, par value $0.0001 per share (the “ Shares ”), of Great Lakes Dredge & Dock Corporation, a Delaware corporation
(“ GLDD ”), for $17.00 per Share in cash, upon the terms and subject to the conditions described in the Offer to Purchase and the related Letter of Transmittal. The Offer Price will be paid subject to any required tax withholdings
and without interest. The undersigned hereby instruct(s) you to tender to Purchaser the number of Shares indicated below (or, if no number is indicated, all Shares) that are held by you or your nominees for the account of the undersigned, upon the
terms and subject to the conditions set forth in the Offer.
The undersigned understand(s) and acknowledge(s) that all questions as to the
validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Shares and of the surrender of any certificate representing Shares submitted on my/our behalf, will be determined by Purchaser, in its sole
discretion, which determination will be final and binding on all parties, subject to the rights of tendering stockholders of GLDD to challenge such determination with respect to their Shares in a court of competent jurisdiction. In addition, the
undersigned understands and acknowledges that:
1. Purchaser reserves the absolute right to (i) reject any and all tenders determined
by it not to be in proper form or the acceptance for payment of or payment for which may, in Purchaser’s opinion, be unlawful and (ii) waive any defect or irregularity in the tender of any Shares of any particular stockholder, whether or
not similar defects or irregularities are waived in the case of any other stockholder.
2. No tender of Shares will be deemed to have been
validly made until all defects and irregularities relating thereto have been cured or waived to Purchaser’s satisfaction.
3. None
of Purchaser, Parent or any of their respective affiliates or assigns, Broadridge Corporate Issuer Solutions, LLC., in its capacity as depositary and paying agent, MacKenzie Partners, Inc., in its capacity as the information agent, or any other
person will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification.
The method of delivery of this document is at the election and risk of the tendering
stockholder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
|
|
|
Number of Shares to be Tendered: |
|
SIGN HERE |
|
|
Shares*
|
|
Signature(s) |
|
|
Account No.: |
|
|
|
|
Dated: |
|
|
|
|
Please Print Name(s) and Address(es) Here |
Area Code and Phone Number |
|
|
|
|
|
Tax Identification Number or Social Security Number |
|
|
* |
Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered.
|
### EX-99.(A)(1)(E) - EX-99.(A)(1)(E)
EX-99.(A)(1)(E)
6
d94032dex99a1e.htm
EX-99.(A)(1)(E)
EX-99.(a)(1)(E)
Exhibit (a)(1)(E)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made
solely by the Offer to Purchase (as defined below), dated March 4, 2026, and the related Letter of Transmittal (as defined below) and any amendments or supplements thereto. The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction. In those jurisdictions where applicable laws require that the Offer be made by a
licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
Notice of Offer to Purchase
All Outstanding Shares of Common Stock
of
GREAT LAKES
DREDGE & DOCK CORPORATION
at
AN OFFER PRICE OF $17.00 PER SHARE IN CASH
Pursuant to the Offer to Purchase
Dated March 4, 2026
by
HURON MERGECO., INC.,
a wholly-owned subsidiary
of
SALTCHUK RESOURCES,
INC.
Huron MergeCo., Inc., a Delaware corporation (“ Purchaser ”) and a
wholly-owned subsidiary of Saltchuk Resources, Inc., a Washington corporation (“ Parent ”), is offering to purchase (the “ Offer ”) all of the issued and outstanding shares of common stock, par value $0.0001 per
share (the “ Shares ”), of Great Lakes Dredge & Dock Corporation, a Delaware corporation (“ GLDD ”), for $17.00 per Share in cash (the “ Offer Price ”) upon the terms and subject to the
conditions described in the Offer to Purchase dated March 4, 2026 (together with any amendments or supplements thereto, the “ Offer to Purchase ”) and in the related Letter of Transmittal (together with any amendments or supplements
thereto, the “ Letter of Transmittal ”). Subject to the terms of the Agreement and Plan of Merger, dated as of February 10, 2026, by and among GLDD, Parent and Purchaser (together with any amendments or supplements thereto, the
“ Merger Agreement ”), the Offer Price will be paid subject to any required tax withholdings and without interest.
Stockholders who hold Shares that are registered in their name and are tendered directly to Broadridge Corporate Issuer Solutions, LLC, which
is the depositary and paying agent for the Offer (the “ Depositary and Paying Agent ”), will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal,
transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult with such institution as to whether they charge
any service fees or commissions.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE ONE MINUTE AFTER 11:59 P.M. NEW YORK CITY TIME ON MARCH
31, 2026 (THE “ EXPIRATION DATE ”), UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The Offer is being made
pursuant to the Merger Agreement, pursuant to which, after the completion of the Offer and the satisfaction or, to the extent permitted by the Merger Agreement, waiver of certain conditions, Purchaser will be merged with and into GLDD, without a
meeting, vote or any further action of GLDD’s stockholders (“ GLDD Stockholders ”) in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the “ DGCL ”), whereupon the
separate existence of Purchaser will cease and GLDD will survive the merger as a wholly-owned subsidiary of Parent (such corporation, the “ Surviving Corporation ”, such merger, the “ Merger ” and the Merger,
together with the Offer and the other transactions contemplated by the Merger Agreement, the “ Transactions ”). At the effective time of the Merger (the “ Effective Time ”), by virtue of the Merger and without any
action required by any party to the Merger Agreement or any GLDD Stockholder, each Share issued and outstanding immediately prior to the Effective Time other than Shares (i) held by GLDD in treasury or owned of record by GLDD or any subsidiary
of GLDD and Shares owned of record by Parent, Purchaser (including Shares irrevocably accepted for payment by Purchaser in the Offer) or any of their respective wholly-owned subsidiaries (in each case, other than those held on behalf of any third
party) shall be canceled and cease to exist, with no payment being made with respect thereto, and (ii) held by any GLDD Stockholders who have properly demanded appraisal rights of such Shares under, and who comply in all respects with,
Section 262 of the DGCL and have not validly revoked such demand, will automatically be converted into the right to receive an amount in cash equal to the Offer Price, without interest thereon and subject to any applicable withholding taxes
(the “ Merger Consideration ”). Upon the terms and subject to the conditions specified in the Merger Agreement, the Merger will become effective as soon as practicable on the same business day as the Acceptance Time (as defined
below), without a meeting, vote or any further action of GLDD Stockholders, in accordance with Section 251(h) of the DGCL. At the Effective Time, Purchaser will be merged with and into GLDD, whereupon the separate existence of Purchaser will
cease, and GLDD will continue as the Surviving Corporation in the Merger. The Merger Agreement is more fully described in the Offer to Purchase.
Purchaser’s obligation to accept for purchase and payment all Shares validly tendered (and not validly withdrawn) pursuant to the Offer
(such acceptance, the “ Offer Closing ”, and the date and time at which the Offer Closing occurs, the “ Acceptance Time ”) is subject to the satisfaction (or, to the extent permitted, waiver) of certain conditions
set forth in the Merger Agreement, including, but not limited to:
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the number of Shares validly tendered and not properly withdrawn prior to the expiration of the Offer, together
with the number of Shares owned, directly or indirectly, by Parent, Purchaser and any of their respective wholly-owned subsidiaries, shall equal at least one (1) Share more than a majority of the
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issued and outstanding Shares as of the expiration of the Offer, which, for this calculation, will exclude tendered Shares not yet “received” (within the meaning of
Section 251(h) of the DGCL) (the “ Minimum Tender Condition ”); |
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the waiting period (or any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger shall have expired or been terminated as of the expiration of the Offer (the “ Competition Laws Condition ”);
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no governmental entity of competent jurisdiction shall have issued or entered any judgment, order, award,
stipulation, settlement, injunction or decree that is in effect and that enjoins or prohibits the making of the Offer or the consummation of the Offer or the Merger (the “ Injunction Condition ”);
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the accuracy of the representations and warranties of GLDD set forth in the Merger Agreement (subject to
certain exceptions and qualifications described in the Merger Agreement and the Offer to Purchase);
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GLDD’s performance and compliance in all material respects with its agreements and covenants contained in
the Merger Agreement that are required to be performed or complied with by it at or prior to the Acceptance Time;
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Parent and Purchaser receiving a certificate signed on behalf of GLDD, dated as of the Acceptance Time, to the
effect that the conditions referenced in clauses (4) and (5) above and clause (7) below have been satisfied;
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no GLDD Material Adverse Effect (as defined in the Offer to Purchase) shall have occurred since the date of the
Merger Agreement; and
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the Merger Agreement not being terminated in accordance with its terms (the “ Termination
Condition ”, and collectively, (1) through (8), the “ Offer Conditions ”).
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obligations of Parent and Purchaser to consummate the Offer and the Merger under the Merger Agreement are not subject to a financing condition. Purchaser and Parent reserve the right to waive certain of the conditions to the Offer in their sole
discretion to the extent permitted by applicable law (other than the Minimum Tender Condition, which may be waived by Purchaser only with the prior written consent of GLDD, or the Competition Laws Condition, the Injunction Condition or the
Termination Condition).
The purpose of the Offer and the Merger is for Parent and its affiliates, through Purchaser, to acquire control
of all of the issued and outstanding Shares of GLDD. Following the consummation of the Offer, Purchaser intends to effect the Merger pursuant to Section 251(h) of the DGCL as promptly as practicable on the same business day as the Acceptance
Time, subject to the satisfaction or waiver (to the extent permitted by the Merger Agreement) of certain conditions. If the Merger is so effected pursuant to Section 251(h) of the DGCL, no vote of GLDD’s stockholders will be required to
adopt the Merger Agreement or consummate the Merger.
After careful consideration, the GLDD Board has unanimously: (i) determined
that it is in the best interests of GLDD and GLDD Stockholders for GLDD to enter into the Merger Agreement and declared the Merger Agreement and the Transactions, including the Offer and the Merger, advisable, (ii) approved the execution,
delivery and performance of, and adopted the Merger Agreement and the consummation of the Transactions, including the Merger and the Offer, in accordance with the DGCL, (iii) resolved that the Merger shall be effected under and governed by
Section 251(h) of the DGCL, and (iv) recommended that GLDD Stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
Descriptions of the reasons for the GLDD Board’s recommendation and approval of the Offer are set forth in GLDD’s
Solicitation/Recommendation Statement on Schedule 14D-9 (the “ Schedule 14D-9 ”), which is being mailed to GLDD Stockholders together with the Offer
materials (including the Offer to Purchase and the related Letter of Transmittal). GLDD Stockholders should carefully read the information set forth in the Schedule 14D-9 in its entirety, including the
information set forth in Item 4 thereof under the sub-headings “Recommendation of the Company Board”, “Background of the Offer and Merger” and “Reasons for the
Recommendation.”
The Merger Agreement provides that (i) Purchaser may, in its sole discretion, and
without the consent of GLDD or any other person, extend the Offer on one or more occasions, for additional periods of up to ten (10) business days (as determined as set forth in Rule 14d-1(g)(3) under the
Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) per extension (or such longer period as the parties may agree), if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or waived by
Purchaser or Parent, in order to permit such Offer Condition to be satisfied, except that, in the event that at any then-scheduled Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than the Offer
Conditions that by their nature are only satisfied as of the Acceptance Time so long as such conditions would be satisfied if the Acceptance Time were to then occur) then Purchaser shall not be permitted to extend the Offer more than four
(4) times in the aggregate, (ii) Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for the minimum period required by applicable law, or by any rule, regulation, interpretation or position of the Securities and
Exchange Commission or the staff thereof or Nasdaq applicable to the Offer, and (iii) if, at any then-scheduled Expiration Date, any Offer Condition is not satisfied or, if permitted by the Merger Agreement, waived by Parent or Purchaser at
such time, then if requested by GLDD, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for additional periods of ten (10) business days (determined as set forth in Rule 14d-1(g)(3)
under the Exchange Act) per extension (or such other period as the parties may agree), except that, in the event that at any then-scheduled Expiration Date, the Minimum Tender Condition is the only Offer Condition not satisfied (other than
conditions that by their nature are only to be satisfied at the Acceptance Time, so long as such conditions would be satisfied if the Offer were to then expire), Purchaser is not required to, and Parent is not required to cause Purchaser to, further
extend the Offer more than four (4) times in the aggregate; provided that Purchaser is not required to, and Parent is not required to cause Purchaser to, extend the Offer beyond the Outside Date (as defined in the Merger Agreement) or the date
the Merger Agreement is validly terminated in accordance with the terms thereof.
Pursuant to the Merger Agreement, Purchaser has
expressly reserved the right to (i) increase the amount of cash constituting the Offer Price and/or (ii) waive, in whole or in part, any Offer Condition, or modify the terms of the Offer not inconsistent with the terms of the Merger
Agreement, except that, without the prior written consent of GLDD, Purchaser may not (and Parent will not permit Purchaser to) (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price (other than as permitted by the
Merger Agreement), (c) amend, modify or waive the Minimum Tender Condition, the Competition Laws Condition, the Injunction Condition and the Termination Condition, (d) add to the Offer Conditions or other conditions of the Offer or amend,
modify or supplement any Offer Condition or other conditions of the Offer, (e) except as provided in the Merger Agreement with respect to the extension of the Offer, terminate, extend, or otherwise amend or modify the Expiration Date,
(f) change the form of consideration payable in the Offer, (g) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse to GLDD Stockholders or that would reasonably be expected to cause any delay of Parent
or Purchaser to consummate the Offer, or (h) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
Any extension, waiver or amendment of the Offer or termination of the Offer will be followed, as promptly as practicable, by public
announcement thereof, such announcement in the case of an extension to be issued not later than 9:00 a.m. New York City time on the next business day after the Expiration Date in accordance with the public announcement requirements of Rules 14d-3(b)(1), 14d-4(d), 14d-6(c), and 14e-1(d) under the Exchange Act.
For purposes of the Offer, if and when Purchaser gives oral or written notice to Depositary and Paying Agent of its acceptance for payment of
such Shares pursuant to the Offer, then Purchaser has accepted for payment and thereby purchased Shares validly tendered and not validly withdrawn pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the aggregate Offer Price (subject to any required tax withholdings) therefor with the Depositary and Paying Agent, which will act as agent for the tendering stockholders for
purposes of receiving payments from Purchaser and transmitting such payments to the tendering stockholders. Under no circumstances will interest be paid on the Offer Price for Shares, regardless of any extension of the Offer or any delay in
payment for Shares .
Payment for Shares tendered and accepted for purchase and payment pursuant to the Offer will
be made only after timely receipt by the Depositary and Paying Agent of (i) certificates representing such Shares or confirmation of the book-entry transfer of such Shares into the Depositary and Paying Agent’s account at The Depository
Trust Company (“ DTC ”) pursuant to the procedures set forth in the Offer to Purchase (ii) a Letter of Transmittal, properly completed and duly executed, with any required signature guarantees in customary form (or, an
Agent’s Message in lieu of the Letter of Transmittal), and (iii) any other documents required by the Letter of Transmittal or any other customary documents required by Depositary and Paying Agent, in each case, as further described in the
Offer to Purchase. Accordingly, tendering stockholders may be paid at different times depending upon when certificates for Shares or book-entry confirmations with respect to Shares, as the case may be, and other documents described above are
actually received by the Depositary and Paying Agent.
Except as otherwise provided in the Offer to Purchase, tenders of Shares pursuant
to the Offer are irrevocable. However, a stockholder has withdrawal rights that are exercisable until the Expiration Date ( i.e. , at any time prior to one minute after 11:59 p.m. New York City time on March 31, 2026), or in the event the Offer
is extended, on such date and time to which the Offer is extended. In addition, pursuant to Section 14(d)(5) of the Exchange Act, Shares may be withdrawn at any time after May 3, 2026, which is the 60 th day after the date of the commencement of the Offer, unless prior to that date Purchaser has accepted for payment the Shares validly tendered in the Offer. Withdrawals of tenders of Shares may not
be rescinded, and any Shares properly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by following one of the procedures for
tendering Shares described in the Offer to Purchase at any time prior to the expiration of the Offer.
The exchange of Shares for cash
pursuant to the Offer or the Merger will generally be a taxable transaction for U.S. federal income tax purposes. For a summary of certain U.S. federal income tax consequences of the Offer and the Merger, see the Offer to Purchase. Holders of
Shares should consult their own tax advisors regarding the particular tax consequences of the Offer and the Merger in light of their particular circumstances, including the application and effect of any U.S. federal, state, local and non-U.S. tax laws.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.
GLDD has agreed to provide Purchaser with its list of stockholders and security position listings for the purpose of disseminating the Offer
to GLDD Stockholders. The Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of Shares whose names appear on GLDD’s stockholder list and will be furnished to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing, for subsequent transmittal to
beneficial owners of Shares.
The Offer to Purchase, the related Letter of Transmittal and the other exhibits to the Schedule TO, and
GLDD’s Schedule 14D-9, contain important information and all documents should be read carefully and in their entirety before any decision is made with respect to the Offer.
Questions and requests for assistance may be directed to MacKenzie Partners, Inc. (the “ Information Agent ”) at the address
and telephone number set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal may be directed to the Information Agent or to brokers, dealers, commercial banks or trust companies. Such copies will be
furnished promptly at Purchaser’s expense.
The Information Agent for the Offer is:
7 Penn Plaza
New York, New York 10001
(212) 929-5500
Email: tenderoffer@mackenziepartners.com
Stockholders, banks and brokers may call MacKenzie Partners, Inc., the Information Agent for the Offer, toll-free at (800) 322-2885.
### EX-99.(A)(5)(II) - EX-99.(A)(5)(II)
EX-99.(A)(5)(II)
7
d94032dex99a5ii.htm
EX-99.(A)(5)(II)
EX-99.(a)(5)(ii)
Exhibit (a)(5)(ii)
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Saltchuk Resources, Inc. and Great Lakes Dredge & Dock Corporation Announce Commencement of Tender Offer for All
Issued and Outstanding Shares of Great Lakes Dredge & Dock Corporation (NASDAQ:GLDD)
SEATTLE, WA and HOUSTON, TX,
March 4, 2026 — Saltchuk Resources, Inc. (“Saltchuk”) and Great Lakes Dredge & Dock Corporation (NASDAQ:GLDD) (“GLDD”) announced that on March 4, 2026, Saltchuk’s wholly-owned
subsidiary, Huron MergeCo., Inc. (“Purchaser”), commenced its tender offer (the “Offer”) for all issued and outstanding shares of common stock of GLDD (“Shares”) at a price of $17.00 per Share in cash, subject to
any required tax withholdings and without interest (the “Offer Price”). The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of February 10, 2026, by and among Saltchuk, Purchaser, and GLDD (the
“Merger Agreement”), which Saltchuk and GLDD announced on February 11, 2026.
The GLDD Board of Directors has unanimously determined that
the Merger Agreement and the Offer are in the best interests of GLDD’s stockholders. The GLDD Board of Directors also recommends that the stockholders of GLDD tender their shares to Purchaser pursuant to the Offer.
The Offer will expire at one minute after 11:59 p.m. New York City time on March 31, 2026, unless extended or earlier terminated. Instructions to tender
Shares are being communicated to stockholders through MacKenzie Partners, Inc., the information agent for the Offer, or the institution or brokerage that holds Shares on the stockholder’s behalf.
Purchaser’s obligation to accept and pay for Shares tendered in the Offer is subject to conditions, including satisfaction of a minimum tender condition
and other customary conditions for transactions of this type. After the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will merge with and into GLDD, with GLDD continuing as the surviving entity (the
“Merger”). As a result of the Merger, outstanding Shares will generally be cancelled and converted into the right to receive an amount equal to the Offer Price, and GLDD will cease to be a publicly traded company and will become
wholly-owned by Saltchuk.
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Additional Information
This press release is for information purposes only and does not constitute an offer to buy or the solicitation of an offer to sell any securities. The
solicitation and the offer to buy shares of GLDD common stock will be made only pursuant to an offer to purchase and related materials that Saltchuk and Purchaser intend to file with the U.S. Securities and Exchange Commission (the
“SEC”). Saltchuk and Purchaser will file a Tender Offer Statement on Schedule TO with the SEC and thereafter GLDD will file a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to
the Offer. BEFORE MAKING ANY INVESTMENT DECISION, INVESTORS AND SECURITY HOLDERS OF GLDD ARE URGED TO READ THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS), THE
SOLICITATION/RECOMMENDATION STATEMENT AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE CONSIDERED BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE TENDER OFFER. These materials will be sent free of charge to GLDD stockholders. In addition, all of these materials (and all other tender offer documents filed with the SEC) will be available at no charge from the SEC through its
website at www.sec.gov and upon request to MacKenzie Partners, Inc., the information agent for the Offer, at 7 Penn Plaza, New York, New York 10001, by calling toll free (800) 322-2885. Broadridge Corporate
Issuer Solutions, LLC is acting as depositary and paying agent for the Offer.
Cautionary Note Regarding Forward-Looking Statements
Forward-looking statements made herein with respect to the tender offer and related transactions, including, for example, the timing of the completion of the
tender offer and the merger or the potential benefits of the tender offer and the merger, reflect the current analysis of existing information and are subject to various risks and uncertainties. As a result, caution must be exercised in relying on
forward-looking statements. Due to known and unknown risks, GLDD’s and Saltchuk’s actual results may differ materially from its expectations or projections. All statements other than statements of historical fact are statements that
could be deemed forward-looking statements. Forward-looking statements can be identified by, among other things, the use of forward-looking language, such as the words “plan,” “believe,” “expect,”
“anticipate,” “intend,” “estimate,” “target,” “project,” “contemplate,” “predict,” “potential,” “continue,” “may,”
“would,” “could,” “should,” “seeks,” “scheduled to,” or other similar words, or the negative of these terms or other variations of these terms or comparable language.
The following factors, among others, could cause actual plans and results to differ materially from those described in forward-looking statements. Such
factors include, but are not limited to, the effect of the announcement of the tender offer and related transactions on GLDD’s and Saltchuk’s relationships with employees, governmental entities and other business relationships, operating
results and business generally; the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement, and the risk that the merger agreement may be terminated in circumstances that require GLDD
to pay a termination fee; the possibility that competing offers will be made; the outcome of any legal proceedings that may be instituted against GLDD and Saltchuk related to the transactions contemplated by the merger agreement, including the
tender offer and the merger; uncertainties as to the timing of the tender offer; uncertainties as to the number of stockholders of GLDD who may tender their stock in the tender offer; the failure to satisfy other conditions to consummation of the
tender offer or the merger on the anticipated timeframe or at all, including the receipt of regulatory approvals related to the merger (and any conditions, limitations or restrictions placed on these approvals); risks that the tender offer and
related transactions disrupt current plans and operations and the potential difficulties in employee retention as a
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result of the proposed transactions; the effects of local and national economic, credit and capital market conditions on the economy in general, and other risks and uncertainties; and those risks
and uncertainties discussed from time to time in GLDD’s other reports and other public filings with the SEC.
Additional information concerning
these and other factors that may impact GLDD’s expectations and projections can be found in its periodic filings with the SEC, including its Annual Report on Form 10-K for the year ended
December 31, 2025. GLDD’s SEC filings are available publicly on the SEC’s website at www.sec.gov, on GLDD’s website at gldd.com under “Investors—Financials & Filings—SEC filings” or upon
request via email to EMBirge@gldd.com. All forward-looking statements contained in this communication are based on information available to GLDD and Saltchuk as of the date hereof and are made only as of the date of this communication. GLDD and
Saltchuk disclaim any obligation or undertaking to update or revise the forward-looking statements contained herein, whether as a result of new information, future events or otherwise, except as required under applicable law. These forward-looking
statements should not be relied upon as representing GLDD’s or Saltchuk’s views as of any date subsequent to the date of this communication. In light of the foregoing, investors are urged not to rely on any forward-looking statement in
reaching any conclusion or making any investment decision about any securities of GLDD or Saltchuk.
About Saltchuk Resources, Inc.
Saltchuk is a privately owned family of diversified freight transportation, marine service, and energy distribution companies, with consolidated annual revenue
of approximately $5.6 billion and 8,800 employees. We make multi-generational investments, championing our companies’ individual brands while providing strategic leadership and resources through our Corporate Home. Our companies maintain
independent operations guided by shared values: safety comes first, reliability defines our customer relationships, and integrity shapes how we conduct business. We’re committed to each other, to environmental stewardship, and to contributing
to our communities, fostering places where anyone would be proud for their children to work. Headquartered in Seattle, additional information is available at www.saltchuk.com .
About Great Lakes Dredge & Dock Corporation
Great Lakes Dredge & Dock Corporation is the largest provider of dredging services in the United States, which is complemented with a long history of
performing significant international projects. In addition, Great Lakes is fully engaged in expanding its core business into the offshore energy industry. GLDD employs experienced civil, ocean and mechanical engineering staff in its estimating,
production, and project management functions. In its over 136-year history, GLDD has never failed to complete a marine project. Great Lakes owns and operates the largest and most diverse fleet in the U.S.
dredging industry, comprised of approximately 200 specialized vessels. Great Lakes has a disciplined training program for engineers that ensures experience-based performance as they advance through GLDD operations. GLDD’s Incident-and Injury-Free ® (IIF ® ) safety management program is integrated into all aspects of the
GLDD’s culture. GLDD’s commitment to the IIF ® culture promotes a work environment where employee safety is paramount.
Contact
Eric Birge,
Vice President of Investor Relations,
313-220-3053
### EX-99.(B)(1) - EX-99.(B)(1)
EX-99.(B)(1)
8
d94032dex99b1.htm
EX-99.(B)(1)
EX-99.(b)(1)
Exhibit (b)(1)
EXECUTION VERSION
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U.S. BANK NATIONAL ASSOCIATION
1095 Avenue of the Americas
New
York, NY 10036
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BANK OF AMERICA, N.A.
BOFA SECURITIES, INC.
One Bryant Park New
York, NY
10036
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PNC BANK, NATIONAL ASSOCIATION
PNC CAPITAL MARKETS LLC
The Tower at PNC Plaza
300 Fifth
Avenue
Pittsburgh, PA 15222
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WELLS FARGO BANK, NATIONAL ASSOCIATION
WELLS FARGO SECURITIES, LLC
550 South Tryon Street
Charlotte, NC 28202
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February 10, 2026
Saltchuk Resources, Inc.
450 Alaskan Way S
Suite 708
Seattle, WA 98104
Attention: Jerald W. Richards
Project Huron
Bridge Commitment Letter
Ladies and Gentlemen:
Saltchuk Resources,
Inc., a Washington corporation (“ you ”, the “ Borrower ”, or the “ Company ”), advised each of U.S. Bank National Association (“ U.S. Bank ”), BofA
Securities, Inc. (together with its designated affiliates, “ BofA Securities ”), Bank of America, N.A. (“ Bank of America ”), PNC Capital Markets LLC (“ PNCCM ”), PNC Bank,
National Association (“ PNC Bank ”), Wells Fargo Securities, LLC (“ WFS ”), and Wells Fargo Bank, National Association (“ Wells Fargo ”; together with U.S. Bank, BofA
Securities, Bank of America, PNCCM, PNC Bank and WFS, “ we ”, “ us ”, the “ Commitment Parties ”, and each, a “ Commitment Party ”), in connection with
the transaction identified to us as “Project Huron”, that you (through a wholly-owned subsidiary) intend to acquire (the “ Acquisition ”) Great Lakes Dredge & Dock Corporation, a Delaware corporation
(“ GLDD ” or the “ Target ”), and consummate certain other transactions, all as described in Exhibit A hereto. In connection therewith, the Borrower intends to obtain a senior unsecured bridge
term loan credit facility (the “ Bridge Credit Facility ”) in an aggregate principal amount of $1,300,000,000. Each capitalized term used herein and not defined herein shall have the meaning ascribed thereto in this Bridge
Commitment Letter, including the Exhibits hereto.
1. Commitments. In connection with the foregoing, (a) (i) U.S. Bank is
pleased to advise you of its commitment to provide $325,000,000 of the Bridge Credit Facility, (ii) Bank of America is pleased to advise you of its commitment to provide $325,000,000 of the Bridge Credit Facility, (iii) PNC Bank is pleased
to advise you of its commitment to provide $325,000,000 of the Bridge Credit Facility, and (iv) Wells Fargo is pleased to advise you of its commitment to provide $325,000,000 of the Bridge Credit Facility (each of U.S. Bank, Bank of America,
PNC Bank, and Wells Fargo in such capacity, an “ Initial Lender ”, and together, the “ Initial Lenders ”), provided , that the foregoing commitments are several, and not joint, (b) U.S. Bank
is pleased to advise you of its willingness to act as the sole and exclusive administrative agent (in such capacity, the “ Administrative Agent ”) for the Bridge Credit Facility, and (c) each of U.S. Bank (in such
capacity, the “ Lead Left Arranger ”), BofA Securities, PNCCM, and WFS (or, in each case, its designated affiliate) is pleased to advise you of its willingness, and you hereby engage each of the foregoing, to act as the joint
lead arrangers and joint bookrunners (collectively, in such capacity (including the Lead Left Arranger), the “ Lead Arrangers ”, and each a “ Lead
Arranger ”) for the Bridge Credit Facility, and in connection therewith to form a syndicate of lenders for the Bridge Credit Facility, but excluding Disqualified Lenders (as
defined below) (collectively, the “ Lenders ”, and each, a “ Lender ”), including the Initial Lenders, in consultation with you (and subject to your approval and consent, as applicable, as provided in
this Bridge Commitment Letter) and otherwise subject to the provisions of this Bridge Commitment Letter, in each case upon and subject to the terms set forth in this letter agreement and Exhibits A and B hereto, and subject solely to
the conditions set forth in Exhibit C hereto (the “ Conditions Exhibit ”, and together with Exhibit B , the “ Bridge Term Sheet ” and, the Bridge Term Sheet, together with this letter
agreement, including the transaction summary set forth in Exhibit A hereto, as amended or modified from time to time, this “ Bridge Commitment Letter ”). You further agree, subject to the last paragraph of
Section 2 of this Bridge Commitment Letter, that no other titles will be awarded and no compensation (other than that expressly contemplated by this Bridge Commitment Letter, the Bridge Fee Letter (as hereinafter defined) and the Lead Left Fee
Letter (as hereinafter defined)) will be paid in connection with the Bridge Credit Facility unless you and the Lead Left Arranger shall so agree, including as agreed prior to the date hereof in accordance with the Syndication Plan (as defined
below). It is understood and agreed that (a) U.S. Bank will have “left” or first placement in any marketing materials or other documentation used in connection with the Bridge Credit Facility, and in each case having the roles and
responsibilities customarily associated with such name placement, (b) BofA Securities shall appear second, or immediately to the right of U.S. Bank, in any marketing materials or other documentation used in connection with the Bridge Credit
Facility, and (c) the other agents (or their affiliates, as applicable) for the Bridge Credit Facility appointed as described above will be listed in any marketing materials or other documentation used in connection with the Bridge Credit
Facility in an order determined by you in consultation with the Commitment Parties.
2. Syndication. The Lead Arrangers intend to
commence syndication of the Bridge Credit Facility (which syndication shall not reduce the respective commitments of the Initial Lenders hereunder, except as provided for in this Section 2) promptly after your acceptance of the terms of this
Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter (such date, the “ Syndication Commencement Date ”), and we agree not to commence any syndication of the Bridge Credit Facility prior to the
Syndication Commencement Date. You agree to use commercially reasonable efforts to actively assist the Lead Arrangers in achieving a syndication that is reasonably acceptable to you and us, commencing on the Syndication Commencement Date until the
date that is 60 days following the Acquisition Funding Date (as defined in Exhibit A hereto) (such period, the “ Syndication Period ”). Such assistance during the Syndication Period shall include (a) your using
commercially reasonable efforts to provide all customary written readily available information in respect of the Borrower, the Target and its subsidiaries (the Target, together with such subsidiaries, the “ Target Entities ”)
reasonably deemed necessary by the Lead Arrangers to complete such syndication (in the case of information of or related to the Target Entities, solely to the extent practical and appropriate and not in contravention of (and consistent with) the
Merger Agreement and subject to the provisions and restrictions under applicable law, using your commercially reasonable efforts to cause the Target Entities to provide such information), in each case subject to the limitations on the scope of
Projections and financial statements described in clause (b) below, (b) your assistance in the preparation of an information memorandum and a lender presentation with respect to the Bridge Credit Facility, in each case, in form and substance
customary for transactions of this type and otherwise reasonably satisfactory to the Lead Arrangers (each, an “ Information Memorandum ”) (collectively with the Bridge Term Sheet, the transaction summary attached hereto as
Exhibit A , and any additional summary of terms prepared for distribution to prospective Lenders (other than Disqualified Lenders), the “ Information Materials ”), it being understood and agreed that (x) the
Information Memorandum shall include each of the total leverage ratio of the Borrower and the consolidated net leverage ratio of the Borrower, calculated on a pro forma basis for the Acquisition and the transactions related thereto (including the
funding of the loans under the Bridge Credit Facility) and in a manner consistent with the below-defined “Existing Revolving Credit Agreement” and (y) Projections and/or financial statements with respect to the Borrower and the
Target Entities that are to be included in the Information Materials shall be as mutually agreed between you and us; provided , that your requirement to assist in obtaining and providing any information of or related to the Target Entities,
and the scope of any such information, shall be subject to the parenthetical at the end of clause (a) above, (c) your using your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit from your
existing lending relationships, and
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(d) the hosting, with the Commitment Parties and appropriate officers and senior management of the Borrower and, using your commercially reasonable efforts, solely to the extent practical
and not in contravention of (and consistent with) the Merger Agreement, with respect to those of the Target Entities, of up to one meeting (or, at your option, a conference call or videoconference in lieu of such meeting) of prospective Lenders (as
well as additional one-on-one conference calls with prospective Lenders as deemed reasonably necessary) in each case at such time during regular business hours and a
location to be reasonably agreed (which can be a conference call or videoconference at your option). Without limiting your obligations to assist with syndication efforts as set forth herein, it is understood that the Initial Lenders’
commitments hereunder are not conditioned upon the syndication of, or receipt of commitments in respect of, the Bridge Credit Facility and in no event shall the commencement or successful completion of syndication of the Bridge Credit Facility
constitute a condition to the availability of the Bridge Credit Facility on the Acquisition Funding Date.
In order to facilitate an
orderly and successful syndication of the Bridge Credit Facility, you agree that from the date hereof until the end of the Syndication Period, neither the Borrower nor any of its subsidiaries will issue, announce, offer, place or arrange debt
securities or any syndicated credit facility, and you will use commercially reasonable efforts to ensure that the Target Entities do not issue, announce, offer place or arrange debt securities or any syndicated credit facility (in each case other
than any borrowing, extension, increase or refinancing under the Borrower’s existing revolving and term loan credit facilities, any syndicated credit facility or issuance, offer or placement or arrangement of debt securities used to refinance
the Bridge Credit Facility, ordinary course purchase money indebtedness, letter of credit facilities, commercial paper facilities, working capital facilities, overdraft protection, hedging and cash management and/or financing, and financing lease
obligations, any financing of the Target not prohibited by the Merger Agreement, and any other financing agreed to by the Lead Arrangers), in each case to the extent such issuance, announcement, offering, placement or arrangement would reasonably be
expected to materially impair the primary syndication of the Bridge Credit Facility.
Syndication will not commence prior to the
Syndication Commencement Date. From the Syndication Commencement Date to and including the date that is 60 consecutive days after the Syndication Commencement Date (the “ Initial Syndication Period ”), decisions regarding the
syndication of the Bridge Credit Facility, including determinations as to the timing of all offers to prospective Lenders, the selection of Lenders, the acceptance and final allocation of commitments, the awarding of any “agent” title or
similar designation or role to any Lender and the amounts offered and the compensation provided to each Lender from the amounts to be paid to the Lead Arrangers and the Initial Lenders pursuant to the terms of this Bridge Commitment Letter, the
Bridge Fee Letter, and the Lead Left Fee Letter will be made jointly by the Lead Arrangers and you and, except to the extent the Lead Arrangers and you otherwise agree in writing, in accordance with the syndication plan heretofore jointly developed
by such parties (the “ Syndication Plan ”). Without limiting the foregoing, the Bridge Credit Facility will be syndicated during the Initial Syndication Period only to Lenders identified in the Syndication Plan (and in the
order set forth in the Syndication Plan) or otherwise agreed in writing prior to the date hereof (the “ Designated Lenders ”). Following the Initial Syndication Period, if and for so long as a successful syndication has not
been achieved, the Lead Arrangers shall manage and control all aspects of the syndication of the Bridge Credit Facility in consultation with you (including in the selection of Lenders); provided , that the Bridge Credit Facility shall not be
syndicated to (i) any person identified by you to the Lead Arrangers in writing prior to the date hereof (or, if after the date hereof, that is reasonably acceptable to the Lead Arrangers), or (ii) any person identified by you to the Lead
Arrangers in writing that is a competitor of yours, your subsidiaries or the Target Entities, and any person controlling or controlled by any of the foregoing, or (iii) any affiliate of any person identified in clauses (i) or (ii) above
that is (a) identified in writing by you from time to time or (b) clearly identifiable as an affiliate as a result of having such person’s name in its legal name (any such person in clauses (i), (ii) or (iii) above,
collectively, the “ Disqualified Lenders ”). Subject to the second to last paragraph of this Section 2, the commitments of each Initial Lender hereunder with respect to the Bridge Credit Facility will be reduced dollar-for-dollar by the amount of each commitment for the Bridge Credit Facility received from a Permitted Assignee (as defined below) selected in accordance with this
paragraph upon such Permitted Assignee becoming (i) a party to this Bridge Commitment Letter as an additional “Commitment Party” pursuant to a Joinder Agreement or (ii) a party to the definitive documentation with respect to
the Bridge Credit
3
Facility that is consistent with this Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter (the “ Loan Documentation ”). Commitments assigned
pursuant to the foregoing shall ratably reduce the commitments of the Initial Lenders based on their initial commitment amounts on the date hereof. For purposes herein, “Permitted Assignee” shall mean (i) each Designated Lender and
(ii) any other Lender (other than a Disqualified Lender) approved by you in your reasonable discretion; provided , however , that to the extent that any portion of the commitments of an Initial Lender hereunder with respect to the
Bridge Credit Facility is syndicated to a Lender that, upon first becoming party to this Bridge Commitment Letter or the applicable Loan Documentation as described above, is not a commercial or investment bank whose senior, unsecured, long-term
indebtedness has an “investment grade” rating by Moody’s Investors Service, Inc. and S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, then such Initial Lender shall not be relieved of its
obligations. In connection with any commitments received from Permitted Assignees selected in accordance with this paragraph, you agree, at the request of the Lead Arranger to enter into one or more customary joinder agreements, amendments or
amendments and restatements to the Bridge Commitment Letter (each, a “ Joinder Agreement ”), in each case acceptable to you, providing for such Permitted Assignees to become an additional “Commitment Party” and an
additional “Initial Lender” under this Bridge Commitment Letter and extend commitments in respect of the Bridge Credit Facility directly to you (it being agreed that the commitments of such additional Commitment Parties and the Initial
Lenders will be several and not joint). It is understood that, unless otherwise agreed by you and the Lead Left Arranger in writing, no Lender participating in the Bridge Credit Facility will receive compensation from you in order to obtain its
commitment, except on the terms contained herein, in any Joinder Agreement, and in the Bridge Term Sheet, the Bridge Fee Letter, and the Lead Left Fee Letter.
Notwithstanding anything in this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, the Loan Documentation or any
other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary, (i) the Initial Lenders shall not be relieved or novated from their obligations hereunder or under any Loan
Documentation (including their obligation to fund the full amount of the Bridge Credit Facility on the Acquisition Funding Date) in connection with any syndication, assignment or participation of the Bridge Credit Facility (other than, upon
execution and delivery of a Joinder Agreement, in connection with any assignment to a Permitted Assignee in respect of the amount allocated to such Permitted Assignee pursuant to such Joinder Agreement), including its commitment in respect thereof,
until after the full funding of the Bridge Credit Facility on the Acquisition Funding Date, (ii) no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitment in respect of the Bridge
Credit Facility until after the full funding of the Bridge Credit Facility on the Acquisition Funding Date (other than, upon execution and delivery of a Joinder Agreement, in connection with any assignment to a Permitted Assignee in respect of the
amount allocated to such Permitted Assignee pursuant to such Joinder Agreement) and (iii) unless you and we agree in writing, the Initial Lenders shall retain exclusive control over all rights and obligations with respect to the commitments in
respect of the Bridge Credit Facility, including all rights with respect to consents, modifications, supplements, amendments, and amendments and restatements hereunder (other than, upon execution and delivery of a Joinder Agreement, in connection
with any assignment to a Permitted Assignee in respect of the amount allocated to such Permitted Assignee pursuant to such Joinder Agreement), until the full funding of the Bridge Credit Facility on the Acquisition Funding Date has occurred.
Notwithstanding anything in this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, the Loan Documentation or any
other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary, neither you, the Target Entities, or your or their respective subsidiaries or other affiliates, nor any of your or their
respective representatives will be required to disclose, permit the inspection, examination or making copies or abstracts of, or permit the discussion of, any document, information or other matter (i) to the extent involving trade secrets,
(ii) to the extent the provision thereof would, or could reasonably be expected to, violate any applicable law, rule or regulation, or any confidentiality obligation binding upon you or any Target Entity or any of your or their respective
subsidiaries or other affiliates, or (iii) to the extent the provision thereof would, or could reasonably be expected to, waive any privilege that may be asserted by, you, the Target Entities, or any of your or their respective subsidiaries or
other affiliates;
4
provided , that in the event you do not provide information in reliance on this sentence (and in the case of information applicable to the Target Entities, to your knowledge), you shall
provide notice to us that such information is being withheld (but solely to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation, or without waiving such privilege, as applicable) and you shall
use your commercially reasonable efforts to describe, to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation, or without waiving such privilege, as applicable, the applicable information;
provided , further , that the representation and warranty made by you with respect to information in Section 3 shall not be affected in any way by your decision not to provide such information on the basis provided above. You shall
have no obligation to provide (1) any financial information (other than the financial statements referenced in paragraph (ii) of Exhibit C ) concerning the Borrower that the Borrower does not maintain in the ordinary course of
business or (2) any other information not reasonably available to the Borrower under its current reporting systems, unless any such information referred to in clause (1) or (2) above would be required so that any marketing materials, when
taken as a whole, would not contain any untrue statement of a material fact or omit a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not
materially misleading; provided that nothing in this sentence shall be deemed to limit your obligation to prepare Projections for use in the Information Memorandum.
3. Information Requirements. You hereby represent and warrant (but the accuracy of which representation and warranty shall not be a
condition to the commitments hereunder, the effectiveness of the Loan Documentation, the availability of the Bridge Credit Facility on the Acquisition Funding Date, or to the funding of the Bridge Credit Facility on the Acquisition Funding Date),
and, with respect to the Target Entities and their respective businesses and assets prior to the Acquisition Funding Date, to your knowledge, that (a) all written information (other than (i) financial projections, the model, pro forma
information, estimates, forecasts, and other forward-looking information (collectively, “ Projections ”) and (ii) information of a general economic or industry nature) (the “ Information ”) that
has been or is hereafter made available to the Lead Arranger or any of the Lenders by you or on behalf of you by any of your representatives (and as supplemented from time to time as provided in the next sentence) in connection with the
Transactions, taken as a whole, is and will be (as of the date made available, as supplemented from time to time as provided herein) correct in all material respects and does not and will not (as of the date made available, as supplemented from time
to time as provided herein), 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, when taken as a whole, not materially misleading in light of the
circumstances under which such statements were or are made and (b) all written financial Projections concerning the Borrower and the Target Entities (prior to the Acquisition Funding Date, solely to the extent such Projections in respect of the
Target Entities have been made available to the Borrower and subject to your knowledge with respect to the Target Entities), that have been or are hereafter made available to the Lead Arrangers or any of the Lenders by you or on behalf of you by any
of your representatives in connection with the Transactions have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time made; it being understood that the Projections are subject to significant
uncertainties and contingencies, many of which are beyond your control, the Projections, by their nature, are inherently uncertain and no assurances are being given that the results reflected in the Projections will be achieved and actual results
may differ from the Projections and such differences may be material. You agree that if at any time prior to the end of the Syndication Period (or, if earlier, the date on which the commitments in respect of the Bridge Credit Facility are terminated
pursuant to clauses (a), (c) or (d) of the definition of “End Date” as set forth below), any of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being
furnished, and such representations were being made, at such time, then you will promptly supplement or cause to be supplemented (or, in the case of the Target Entities, use commercially reasonable efforts to supplement or cause to be supplemented),
the Information and Projections so that such representations contained in this paragraph are correct in all material respects under those circumstances. In issuing this commitment and in arranging and syndicating the Bridge Credit Facility, the
Commitment Parties are and will be using and relying on the Information and Projections, if any, without independent verification thereof.
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You acknowledge that (a) the Lead Arrangers on your behalf will make available
Information Materials to the proposed syndicate of Lenders by posting the Information Materials on Debticate, IntraLinks, SyndTrak or another similar electronic system and (b) certain prospective Lenders (such Lenders, “ Public
Lenders ”; all other Lenders, “ Private Lenders ”) may have personnel that do not wish to receive material non-public information (within the meaning of the United States
federal securities laws, “ MNPI ”) with respect to the Borrower, the Target Entities, their respective affiliates, or any other entity, or the respective securities thereof, and who may be engaged in investment and other
market-related activities with respect to such entities’ securities. If requested, you will assist us in preparing an additional version of the Information Materials not containing MNPI (the “ Public Information
Materials ”) to be distributed to prospective Public Lenders.
Before distribution of any Information Materials (a) to
prospective Private Lenders, you shall provide us with a customary letter authorizing the dissemination of the Information Materials and (b) to prospective Public Lenders, you shall provide us with a customary letter authorizing the
dissemination of the Public Information Materials and confirming the absence of MNPI therefrom. In addition, at our request, you shall identify Public Information Materials by clearly and conspicuously marking the same as “PUBLIC”. All
Information and Information Materials not specifically identified as “PUBLIC” shall be deemed suitable only for posting to Private Lenders. You agree that the Lead Arrangers on your behalf may distribute the following documents to all
prospective Lenders, except to the extent you advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Private Lenders and
provided that you shall have been given a reasonable opportunity to review such documents: (a) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda; (b) notifications of
changes to the terms of the Bridge Credit Facility; and (c) other materials intended for prospective Lenders after the initial distribution of the Information Materials, including drafts and final versions of term sheets and definitive
documents with respect to the Bridge Credit Facility. If you advise us that any of the foregoing items should be distributed only to Private Lenders, then the Lead Arranger will not distribute such materials to Public Lenders.
4. Fees and Indemnities.
You agree to pay the fees set forth in the separate fee letter, addressed to you and dated the date hereof, from the Lead Arrangers (as
amended, restated, supplemented or otherwise modified from time to time, the “ Bridge Fee Letter ”), on the terms and subject to the conditions (including as to timing and amount) set forth therein. You also agree to pay the
fees set forth in the separate fee letter, addressed to you and dated the date hereof, from the Lead Left Arranger (as amended, restated, supplemented or otherwise modified from time to time, the “ Lead Left Fee Letter ”), on
the terms and subject to the conditions (including as to timing and amount) set forth therein. You agree that, once paid, the fees or any part thereof payable hereunder, under the Bridge Fee Letter or under the Lead Left Fee Letter shall not be
refundable under any circumstances, regardless of whether the transactions or borrowings contemplated by this Bridge Commitment Letter are consummated, except as otherwise agreed in writing by you and the Lead Arrangers or the Lead Left Arranger, as
applicable. All fees payable hereunder, under the Bridge Fee Letter, and under the Lead Left Fee Letter shall be paid in immediately available funds in U.S. Dollars and shall not be subject to reduction by way of setoff or counterclaim or be
otherwise affected by any claim or dispute related to any other matter. In addition, all fees payable to a recipient thereof hereunder or under the Bridge Fee Letter or the Lead Left Fee Letter shall be paid without deduction for any taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any national, state or local taxing authority, or will be grossed up in accordance with the terms of, and as provided in, the Existing Revolving Credit Agreement.
You agree that (i) in no event shall any Commitment Party, its affiliates, and its and its affiliates’ respective officers,
directors, employees, advisors, and agents (each, and including, without limitation, each Initial Lender, an “ Arranger-Related Person ”) have any Liabilities (as defined below), on any theory of liability, for any special,
indirect, consequential or punitive damages incurred by you, your affiliates or your respective equity holders arising out of, in connection with, or as a result of, this Bridge Commitment Letter, the Bridge Fee Letter,
6
the Lead Left Fee Letter, the Bridge Credit Facility or any other agreement or instrument contemplated hereby and (ii) no Arranger-Related Person shall have any Liabilities arising from, or
be responsible for, the use by others of Information or other materials (including, without limitation, any personal data) obtained through electronic, telecommunications or other information transmission systems, including an electronic platform or
otherwise via the internet. You agree, to the extent permitted by applicable law, to not assert any claims against any Arranger-Related Person with respect to any of the foregoing. It is also agreed that neither you nor any Arranger-Related Person
shall be liable for any special, indirect, consequential or punitive damages in connection with this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, the Bridge Credit Facility or any other agreement or instrument
contemplated hereby, or in connection with any activities related to any of the foregoing (except, with respect to you, to the extent you are otherwise required to indemnify an Indemnified Person in respect thereof pursuant to the terms of this
paragraph, including to the extent such special, indirect, consequential or punitive damages are included in any third-party claim with respect to which the applicable indemnified person is otherwise entitled to indemnification). As used herein, the
term “ Liabilities ” shall mean any losses, claims (including intraparty claims), demands, damages or liabilities of any kind and related expenses.
You agree (A) to (i) indemnify and hold harmless each Commitment Party, its affiliates, and its and its affiliates’ respective
officers, directors, employees, advisors, and agents (each, and including, without limitation, each Initial Lender, an “ Indemnified Person ”) from and against any and all Liabilities to which any such Indemnified Person may
become subject arising out of or in connection with this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, the Bridge Credit Facility, the use of the proceeds thereof, any related transaction or the activities performed or
the commitments or services furnished pursuant to this Bridge Commitment Letter or the role of each Lead Arranger or each Initial Lender in connection therewith or in connection with any actual or prospective claim, litigation, investigation,
arbitration or administrative, judicial or regulatory action or proceeding in any jurisdiction relating to any of the foregoing (including in relation to enforcing the terms of the immediately preceding paragraph and this paragraph) (each, a
“ Proceeding ”), regardless of whether or not any Indemnified Person is a party thereto and whether or not such Proceeding is brought by you, your equity holders, affiliates, creditors, the Borrower, any Target Entity or any
other person and (ii) reimburse each Indemnified Person upon demand for any reasonable and documented legal or other expenses incurred in connection with investigating or defending any of the foregoing, regardless of whether or not in
connection with any pending or threatened Proceeding to which any Indemnified Person is a party; provided , that the foregoing indemnity will not, as to any Indemnified Person, apply to any Liabilities or related expenses to the extent they
are found by a final, non-appealable judgment of a court of competent jurisdiction to (I) primarily result from (x) the willful misconduct, bad faith or gross negligence of such Indemnified Person in
performing its activities or in furnishing its commitments or services under this Bridge Commitment Letter or (y) a material breach in bad faith of the funding obligation of any Lead Arranger or any of its affiliates under this Bridge
Commitment Letter, or (II) have not resulted from an act or omission by you or any of your affiliates and have been brought by an Indemnified Person against any other Indemnified Person (other than any claims against any Lead Arranger in its
capacities or in fulfilling its roles as an arranger or agent or any similar role hereunder); provided , further , that you will not, in connection with any one such action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons except to the extent that (i) local counsel or special counsel, in
addition to its regular counsel, is, in the good faith judgment of an Indemnified Person, required in order to effectively defend against (or otherwise in connection with) such action or proceeding or (ii) more than one firm of attorneys is
required due to an actual or potential conflict of interest, including any local counsel (in which case we agree to notify you promptly of such conflict and all similarly situated Indemnified Persons shall be represented by one firm of attorneys in
each applicable jurisdiction), and (B) to reimburse us and our affiliates on demand for all reasonable and documented out-of-pocket expenses (including due
diligence expenses and syndication expenses, and limited, in the case of fees, expenses, charges and disbursements of counsel, to the reasonable and documented
out-of-pocket fees, charges and disbursements of one primary outside counsel and, solely to the extent that the Lead Left Arranger determines it is required in
connection with this Bridge Commitment Letter or the Bridge Credit Facility after consultation with you, one
7
additional local counsel or one additional specialty counsel) incurred in connection with the Bridge Credit Facility and any related documentation (including this Bridge Commitment Letter, the
Bridge Term Sheet, the Bridge Fee Letter, the Lead Left Fee Letter, and the Loan Documentation (including amendments, waivers or modifications thereto)).
You shall not, without the prior written consent of an Indemnified Person (which consent shall not be unreasonably withheld, conditioned or
delayed), effect any settlement of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified
Person in form and substance reasonably satisfactory to such Indemnified Person from all liability on claims that are the subject matter of such Proceedings and (b) does not include any statement as to or any admission of fault, culpability or
a failure to act by or on behalf of any Indemnified Person or any injunctive relief or other non-monetary remedy. You acknowledge that any failure to comply with your obligations under the preceding sentence
may cause irreparable harm to us and the other Indemnified Persons. Notwithstanding anything to the contrary herein, you shall not be liable for any settlement, compromise or consent to the entry of any judgment in any Proceeding (or expenses
related thereto) effected without your written consent (which consent shall not be unreasonably withheld or delayed), but if settled, compromised or consented to with your written consent, or if there is a final and
non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person in the manner and to the extent set forth above.
Each Indemnified Person shall be severally obligated to refund or return any and all amounts paid by you or any of your affiliates under this Section 4
to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
5. Conditions to Financing. Notwithstanding anything in this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee
Letter, the Loan Documentation or any other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary:
(a) each Initial Lender’s commitment hereunder, and each of their agreements to perform the services described herein, are subject only
to the satisfaction (or waiver by the Lead Arrangers) of the conditions set forth in the Conditions Exhibit (and there are no other conditions to the funding of the Bridge Credit Facility, whether express or implied), and upon satisfaction or waiver
by the Lead Arrangers of such conditions, the full funding of the Bridge Credit Facility on the Acquisition Funding Date shall occur;
(b)
(i) neither the commencement or completion of syndication of the Bridge Credit Facility, nor the completion of an Information Memorandum or other Information Materials or marketing materials, nor, except as set forth in the Conditions Exhibit,
compliance with any other provision set forth in this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, or the Loan Documentation, and (ii) except as set forth in the Conditions Exhibit, neither the accuracy of any
representation and warranty set forth in the Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter or in any Loan Documentation, nor the delivery of any Information, Projections or any supplement or updates thereto, in the case
of clauses (i) and (ii), shall constitute a condition to the commitments hereunder or (other than solely the conditions set forth in the Conditions Exhibit) to the effectiveness of the Loan Documentation, the availability of the Bridge
Credit Facility on the Acquisition Funding Date, or to the funding of the Bridge Credit Facility on the Acquisition Funding Date, and (b) the only financial statements and Projections that shall be required to be delivered as a condition to the
effectiveness of the Loan Documentation and the availability of the Bridge Credit Facility and the funding of the Bridge Credit Facility on the Acquisition Funding Date shall be those expressly described in paragraph (iii) of the Conditions Exhibit;
(c) the only representations relating to the Target Entities and their respective businesses the accuracy of which shall be a condition
to the availability or full funding of the Bridge Credit Facility on the Acquisition
8
Funding Date shall be the representations made by or with respect to the Target Entities in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that you
have (or a subsidiary of yours has) the right to terminate your (or its) obligations under the Merger Agreement, or to decline to consummate the Acquisition pursuant to the Merger Agreement, as a result of a breach of such representations in the
Merger Agreement (in accordance with the terms of the Merger Agreement) (the “ Merger Agreement Representations ”);
(d) the only other representations the accuracy of which shall be a condition to availability or full funding of the Bridge Credit Facility on
the Acquisition Funding Date shall be the Specified Representations (as hereinafter defined); and
(e) the terms of the Loan Documentation
shall be in a form such that they do not impair the full funding of the Bridge Credit Facility on the Acquisition Funding Date if the conditions expressly set forth in the Conditions Exhibit are satisfied or waived by the Lead Arrangers.
For purposes hereof, “ Specified Representations ” means the representations and warranties made by Borrower and the
Guarantors in the Loan Documentation and set forth in the Bridge Term Sheet relating to corporate status of the Borrower and the Guarantors; corporate or similar power and authority of the Borrower and the Guarantors to enter into the Loan
Documentation; due authorization, execution, delivery by the Borrower and the Guarantors and enforceability (subject to customary enforceability exceptions) against the Borrower and the Guarantors of the Loan Documentation; no conflicts of the
Bridge Credit Facility (limited to the execution, delivery and performance of the Loan Documentation and incurrence of the Bridge Credit Facility (and not, for the avoidance of doubt, the assumption or the incurrence of any other indebtedness)) with
charter documents of the Borrower and the Guarantors, agreements, documents and instruments governing debt for borrowed money of the Borrower and the Guarantors in an aggregate principal amount under any such agreement, document or instrument
equaling or exceeding $100,000,000; Federal Reserve margin regulations; solvency as of the Acquisition Funding Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (solvency to be defined in a
manner consistent with the manner in which solvency is determined in the solvency certificate to be delivered pursuant to Exhibit D ); the Investment Company Act; and use of proceeds of the Bridge Credit Facility not violating laws against
sanctioned persons and foreign corrupt practices (including OFAC, the FCPA and the Patriot Act).
Notwithstanding anything in this Bridge
Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter, the Loan Documentation or any other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary, if any of the Merger
Agreement Representations are qualified or subject to “material adverse effect,” the definition of “Company Material Adverse Effect” in the Merger Agreement shall apply for the purposes of any representations and warranties
required to be accurate, on or as of the applicable date they are made.
This Section 5 shall be referred to as the
“ Certain Funds Provision ”.
6. Confidentiality and Other Obligations. This Bridge Commitment Letter, the
Bridge Fee Letter, and the Lead Left Fee Letter, and the contents hereof and thereof, are confidential and may not be disclosed by you in whole or in part to any person or entity without our prior written consent except (a) to your directors,
officers, employees, agents, attorneys, affiliates, auditors and advisors who are involved in the consideration of this matter, (b) as may be compelled in a judicial or administrative proceeding or as otherwise you may reasonably determine to
be required by any law, rule or regulation (in which case you agree to inform us thereof if permitted by applicable law), (c) with respect to this Bridge Commitment Letter, but not the Bridge Fee Letter or the Lead Left Fee Letter, in filings with
applicable regulatory authorities or any written tender offer or proxy related to the Acquisition, (d) the aggregate fee amounts contained in the Bridge Fee Letter and the Lead Left Fee Letter in connection with any Acquisition Funding Date
funds flow, and as part of projections, pro forma information or a generic disclosure of aggregate sources and uses related to the Bridge Credit Facility to the extent customary or required in connection with the Transactions or in offering and
marketing materials for the Bridge Credit
9
Facility, or in any public release or filing relating to the Bridge Credit Facility, (e) the Bridge Term Sheet attached to this Bridge Commitment Letter to potential debt providers in
coordination with us to obtain commitments to the Bridge Credit Facility from such potential debt providers and to rating agencies, (f) to the extent any such information becomes publicly available other than by reason of disclosure by you, or
your officers, agents, attorneys, affiliates, auditors and advisors in breach of this Bridge Commitment Letter, (g) to the extent required in connection with any litigation or similar proceeding, (h) the Bridge Commitment Letter, the
Bridge Fee Letter, and the Lead Left Fee letter (in the case of the Bridge Fee Letter and the Lead Left Fee Letter, redacted in a customary manner reasonably satisfactory to us, in respect of the amounts, percentages and basis points of fees set
forth therein) on a confidential basis to the Target Entities and their respective affiliates, and the officers, directors, employees and agents, accountants, attorneys and other professional advisors of each of the foregoing under this clause (h),
in connection with the Transactions, and (i) for purposes of establishing a “due diligence” defense or to enforce any rights and remedies hereunder. This paragraph shall terminate (as it relates to Bridge Commitment Letter but not
as it relates to the Bridge Fee Letter or the Lead Left Fee Letter) on the first anniversary of the date hereof.
No confidential
information obtained by us or any of our affiliates from you or your representatives and none of this Bridge Commitment Letter, the Bridge Fee Letter, the Lead Left Fee Letter or any of their terms or substance shall be disclosed, directly or
indirectly, by us or any of our affiliates to any other person without your prior consent except (a) on a confidential “need to know” basis and solely in connection with the transactions contemplated hereby, to our affiliates and to
our and our affiliates’ officers, directors, agents, attorneys, affiliates, auditors and advisors (collectively, “ Representatives ”) who are involved in the consideration of this matter and made aware of the
confidential nature thereof and have been instructed to keep information of this type confidential in accordance with customary practices (provided that no Commitment Party shall be responsible for its Representatives’ compliance with this
paragraph), (b) as may be compelled in a judicial or administrative proceeding or as otherwise required by any law, rule or regulation (in which case we agree to inform you thereof if permitted by applicable law, rule or regulation), (c) in
connection with the syndication of the Bridge Credit Facility contemplated hereby (other than the Bridge Fee Letter or the Lead Left Fee Letter), (d) to the extent requested or required by any state, federal or foreign authority or examiner
regulating banks or banking, or regulatory or self-regulatory authority having jurisdiction over us or our affiliates (in which case we agree (except with respect to any audit or examination conducted by bank accountants or any governmental or bank
regulatory authority (including any self-regulatory authority) exercising examination or regulatory authority) to inform you promptly thereof if permitted by applicable law, rule or regulation), (e) to the extent required in connection with any
litigation or similar proceeding, (f) to the extent any such information becomes publicly available other than by reason of disclosure by us, or our officers, agents, attorneys, affiliates, auditors and advisors in breach of this Bridge
Commitment Letter or other confidentiality obligations owed to you or your affiliates, or is independently developed by us without the use of any confidential information, (g) to the extent applicable and reasonably necessary or advisable, for
purposes of establishing a “due diligence” defense, (h) to the extent that such information is received by a Commitment Party from a third party that is not to such Commitment Party’s knowledge subject to confidentiality
obligations to you, (i) to the extent that such information is independently developed by a Commitment Party, (j) this Bridge Commitment Letter may be disclosed to rating agencies in connection with obtaining a rating, and (k) 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 the Bridge Credit Facility; provided , that
such information is limited to the existence of this Bridge Commitment Letter and generic information about the Bridge Credit Facility. Our obligations under this paragraph shall be superseded by the confidentiality provisions of the Bridge Credit
Facility upon the execution and effectiveness thereof and otherwise shall terminate on the first anniversary of the date hereof.
For the
avoidance of doubt, nothing herein prohibits any individual from communicating or disclosing information regarding suspected violations of laws, rules, or regulations to a governmental, regulatory, or self-regulatory authority without any
notification to any person.
10
You acknowledge that the Commitment Parties or their respective affiliates may be providing
debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein and otherwise. We will not use
confidential information obtained from you by virtue of the transactions contemplated by this Bridge Commitment Letter or its other relationships with you in connection with the performance by us of services for other companies, and we will not
furnish any such information to other companies. You also acknowledge that we have no obligation to use in connection with the transactions contemplated by this Bridge Commitment Letter, or to furnish to you, confidential information obtained from
other companies. Subject to the second paragraph of this Section 6, you agree that in connection with the services and transactions contemplated hereby, each Commitment Party is permitted to access, use and share with any of its bank or non-bank affiliates, agents, advisors (legal or otherwise) or representatives any information concerning the Borrower, the Target Entities or any of their respective affiliates that is provided to a Commitment Party
by or on behalf of you or any of your representatives.
You agree that each Commitment Party will act under this Bridge Commitment Letter
as an independent contractor and that nothing in this Bridge Commitment Letter will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between such Commitment Party and you and your respective equity
holders or your and their respective affiliates. You acknowledge and agree that (i) the transactions contemplated by this Bridge Commitment Letter are arm’s-length commercial transactions between
the Commitment Parties and, if applicable, their affiliates, on the one hand, and you, on the other, (ii) in connection therewith and with the process leading to such transaction the Commitment Parties and, if applicable, their affiliates, are
acting solely as principals and have not been, are not and will not be acting as advisors, agents or fiduciaries of you, your management, equity holders, creditors, affiliates or any other person and (iii) the Commitment Parties and, if
applicable, their affiliates, have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you or your affiliates with respect to the transactions contemplated hereby or the process leading thereto (irrespective of
whether any Commitment Party or any of its affiliates has advised or is currently advising you or your affiliates on other matters) except the obligations expressly set forth in this Bridge Commitment Letter. You further acknowledge and agree that
(i) you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto, and (ii) you are capable of evaluating and understand and accept the terms, risks and conditions of the
transactions contemplated hereby, and we shall have no responsibility or liability to you with respect thereto. To the fullest extent permitted by law, you hereby waive and release any claims that you may have against any Commitment Party with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated by this Bridge Commitment Letter. You acknowledge that one or more Commitment Parties currently are acting or may act
as a lender and/or agent under certain of the Borrower’s existing or future revolving and term loan credit facilities, and the Borrower’s and its affiliates’ rights and obligations under any other agreement with any Commitment
Party or any of its affiliates that currently or hereafter may exist are, and shall be, separate and distinct from the rights and obligations of the parties pursuant to this Bridge Commitment Letter, and none of such rights and obligations under
such other agreements shall be affected by such Commitment Party’s performance or lack of performance of services hereunder.
You
further acknowledge that each Lead Arranger and its affiliates are a full-service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary
course of business, each Lead Arranger may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments
(including bank loans and other obligations) of, you and other companies with which you may have commercial or other relationships. With respect to any securities and/or financial instruments so held by any Lead Arranger or any of its customers, all
rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
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We hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of
Pub. L. 107-56 (signed into law October 26, 2001) (the “ Patriot Act ”) and 31 C.F.R. § 1010.230 (the “ Beneficial Ownership Regulation ”), we and our
affiliates are required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information includes the name, address, tax identification number and other information regarding the Borrower and the Guarantors
that will allow us to identify the Borrower and the Guarantors in accordance with the Patriot Act. This notice is given in accordance with the requirements of the Patriot Act and the Beneficial Ownership Regulation and is effective for us and each
of our affiliates.
7. Survival of Obligations. The provisions of Sections 2, 3, 4, 6, 7 and 8 shall remain in full force and
effect regardless of whether any Loan Documentation shall be executed and delivered and notwithstanding the termination of this Bridge Commitment Letter or any commitment or undertaking of the Commitment Parties hereunder, except that the provisions
of paragraphs 2 and 3 shall not survive if the commitments and undertakings of the Commitment Parties are terminated prior to the effectiveness of the Bridge Credit Facility; provided that if the Loan Documentation becomes effective, the
reimbursement, indemnification, choice of law, and waiver of jury trial provisions contained herein shall be superseded by the corresponding provisions of the Loan Documentation to the extent covered thereby.
8. Miscellaneous. This Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter may be executed in multiple
counterparts and by different parties hereto in separate counterparts, all of which, taken together, shall constitute an original. This Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter may be in the form of an Electronic
Record (as defined herein) and may be executed using Electronic Signatures (as defined herein) (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability
as a paper record. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by us of a manually signed paper communication which has been converted into electronic form (such as scanned
into .pdf format), or an electronically signed communication converted into another format, for transmission, delivery and/or retention. Notwithstanding anything contained herein to the contrary, we are under no obligation to accept an Electronic
Signature in any form or in any format unless expressly agreed to by us pursuant to procedures approved by us; provided , that without limiting the foregoing, (a) to the extent we have agreed to accept such Electronic Signature, we shall
be entitled to rely on any such Electronic Signature purportedly given by or on behalf of the Borrower without further verification and (b) upon the request of us, any Electronic Signature shall be promptly followed by a manually executed,
original counterpart. “ Electronic Record ” and “ Electronic Signature ” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. Headings
are for convenience of reference only and shall not affect the construction of, or be taken into consideration when interpreting, this Bridge Commitment Letter, the Bridge Fee Letter or the Lead Left Fee Letter.
This Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter shall be governed by, and construed in accordance with, the
laws of the State of New York; provided , that the governing law of the Merger Agreement, which is the laws of the state of Delaware, shall govern in determining (i) the interpretation of a “Company Material Adverse Effect”
(as defined in the Merger Agreement) and whether a “Company Material Adverse Effect” has occurred, (ii) the making and accuracy of any Merger Agreement Representation and whether as a result of any inaccuracy thereof you or your
applicable affiliate have the right or would have the right (taking into account any applicable cure provisions) to terminate your or its obligations (or to refuse to consummate the Acquisition) under the Merger Agreement and (iii) whether the
Acquisition has been consummated in accordance with the terms of the Merger Agreement (in each case, without regard to the principles of conflicts of laws thereof, to the extent that the same are not mandatorily applicable by statute and would
require or permit the application of the law of another jurisdiction). EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS BRIDGE COMMITMENT LETTER, THE BRIDGE FEE LETTER, THE LEAD LEFT FEE LETTER, THE TRANSACTIONS AND THE OTHER
12
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY OR THE ACTIONS OF THE COMMITMENT PARTIES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF. Each party hereto hereby irrevocably and
unconditionally submits to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan in New York City in respect of any suit, action or proceeding arising out of or
relating to the provisions of this Bridge Commitment Letter, the Bridge Fee Letter, or the Lead Left Fee Letter and, with respect to any other suit, action or proceeding between the Borrower or any of its affiliates and an Indemnified Party arising
out of or relating to the Transactions, and irrevocably agrees that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. The parties hereto agree that service of any process, summons, notice or
document by registered mail addressed to you shall be effective service of process against you for any suit, action or proceeding relating to any such dispute. Each party hereto waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceedings brought in any such court, and any claim that any such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. A final judgment in any such suit, action or proceeding brought in any such court may be enforced in any other courts to whose jurisdiction you are or may be subject by suit upon judgment.
This Bridge Commitment Letter, together with the Bridge Fee Letter and the Lead Left Fee Letter, embodies the entire agreement and
understanding among the parties hereto and your affiliates with respect to the Bridge Credit Facility and supersedes all prior agreements and understandings relating to the subject matter hereof. No party has been authorized by the Commitment
Parties to make any oral or written statements that are inconsistent with this Bridge Commitment Letter. None of this Bridge Commitment Letter (including the attachments hereto), the Bridge Fee Letter, or the Lead Left Fee Letter may be amended or
any term or provision hereof or thereof waived or modified except by an instrument in writing signed by you and us (other than with respect to the Lead Left Fee Letter, which shall require an instrument in writing signed by you and the Lead Left
Arranger).
Each of the parties hereto agrees that this Bridge Commitment Letter is a binding and enforceable agreement (subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors’ rights generally and general principles of equity) with respect to the subject matter contained herein,
including an agreement to negotiate in good faith the Loan Documentation by the parties hereto in a manner consistent with this Bridge Commitment Letter, it being acknowledged and agreed that the effectiveness of the Loan Documentation and the
availability of, and full funding of, the Bridge Credit Facility on the Acquisition Funding Date in each case shall be subject solely to the satisfaction (or waiver by the Lead Arrangers) of the conditions precedent set forth in the Conditions
Exhibit.
This Bridge Commitment Letter may not be assigned by you without our prior written consent (and any purported assignment without
such consent will be null and void), is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and the Indemnified
Parties). Subject to Section 2, the Initial Lenders may assign all or a portion of their respective commitments hereunder to one or more Permitted Assignees; provided , that no such assignment shall relieve the Initial Lender of its
obligations hereunder except as provided in Section 2. In the event that you determine, in your sole discretion, that you may consummate the Transactions for any reason with a lesser amount of commitments or indebtedness, then you may reduce
the Initial Lenders’ commitments with respect to the Bridge Credit Facility.
Subject to Section 2, we may employ the services
of our affiliates in providing certain services hereunder and, in connection with the provision of such services, may exchange with such affiliates information concerning you and the other companies that may be the subject of the transactions
contemplated by this Bridge Commitment Letter, and, to the extent so employed, such affiliates shall be entitled to the benefits, and be subject to the obligations, of us hereunder. We shall be responsible for our affiliates’ failure to comply
with such obligations under this Bridge Commitment Letter.
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Please indicate your acceptance of the terms hereof, the Bridge Fee Letter, and the Lead
Left Fee Letter by returning to us executed counterparts of this Bridge Commitment Letter and the Bridge Fee Letter, and solely to the Lead Left Arranger the Lead Left Fee Letter, not later than 11:59 p.m. (New York City time) on February 10, 2026,
whereupon the undertakings of the parties with respect to the Bridge Credit Facility shall become effective to the extent and in the manner provided hereby. This offer shall terminate with respect to the Bridge Credit Facility if not so accepted by
you at or prior to that time. Thereafter, all commitments and undertakings of the Commitment Parties hereunder (or under the Loan Documentation, as applicable) will expire at 11:59 p.m., New York City time on the date that is the earliest of
(a) the fifth business day after the latest “Outside Date” ((x) after giving effect to any automatic extensions thereof pursuant to the Merger Agreement as in effect on the date hereof and (y) regardless of whether the
Merger Agreement terminates on such date) (as defined in the Merger Agreement as in effect on the date hereof), (b) the Acquisition Funding Date after giving effect to the full funding of the Bridge Credit Facility on such date, (c) the date
that the Merger Agreement expires in accordance with its terms or your or your applicable subsidiary’s obligations to consummate the Acquisition under the Merger Agreement terminate in accordance with its terms and, in each case, you notify us
in writing of the same; provided , that you agree to provide prompt notice of the same and a public statement announcing the same shall constitute notice or you inform us in writing that you have abandoned your pursuit of the Acquisition,
(d) the date set forth in a written notice from you to the Commitment Parties of your election to terminate all commitments under the Bridge Credit Facility in full and (e) the date the Tender Offer is consummated in accordance with the
terms of the Merger Agreement without the use of the Bridge Credit Facility (the earliest such date, the “ End Date ”); provided , that the termination of any commitment pursuant to this sentence shall not prejudice
your rights and remedies in respect of any breach of this Bridge Commitment Letter that occurred prior to any such termination.
The
remainder of this page intentionally is blank.
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We are pleased to have the opportunity to work with you in connection with this important
financing.
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Very truly yours, |
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U.S. BANK NATIONAL ASSOCIATION |
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By: |
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/s/ Nora Golden
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Name: |
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Nora Golden |
Title: |
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Vice President |
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BANK OF AMERICA, N.A. |
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By: |
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/s/ Daryl K. Hogge
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Name: |
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Daryl K. Hogge |
Title: |
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Managing Director |
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BOFA SECURITIES, INC. |
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By: |
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/s/ Mark N. Post
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Name: |
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Mark N. Post |
Title: |
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Managing Director |
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PNC BANK, NATIONAL ASSOCIATION |
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By: |
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/s/ Jack Broeren
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Name: |
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Jack Broeren |
Title: |
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Executive Vice President |
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PNC CAPITAL MARKETS LLC |
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By: |
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/s/ Jack Broeren
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Name: |
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Jack Broeren |
Title: |
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Executive Vice President |
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WELLS FARGO BANK, NATIONAL ASSOCIATION |
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By: |
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/s/ Chris Harbutt
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Name: |
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Chris Harbutt |
Title: |
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Executive Director |
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WELLS FARGO SECURITIES, LLC |
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By: |
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/s/ Adam Hyder
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Name: |
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Adam Hyder |
Title: |
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Managing Director |
Signature Page to Project Huron Bridge Commitment Letter
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Agreed, acknowledged and accepted: |
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SALTCHUK RESOURCES, INC. |
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By: |
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/s/ Jerald W Richards
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Name: Jerald W Richards |
Title: SVP & Chief Financial Officer |
Signature Page to Project Huron Bridge Commitment Letter
EXHIBIT A
PROJECT HURON TRANSACTION SUMMARY
Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Bridge Commitment Letter to
which this Exhibit A is attached or in Exhibits B or C attached thereto, as applicable. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in
this Exhibit A shall be determined by reference to the context in which it is used.
Saltchuk Resources, Inc., a Washington
corporation (“ Saltchuk ”), through Huron MergeCo., Inc., a Delaware corporation and a wholly-owned subsidiary of Saltchuk (the “ Merger Sub ”), intends to acquire (the
“ Acquisition ”) all of the issued and outstanding shares of capital stock of Great Lakes Dredge & Dock Corporation, a Delaware corporation (“ GLDD ”), all as set forth in that certain
Agreement and Plan of Merger, dated as of February 10, 2026 (the “ Merger Agreement ”), among Saltchuk, Merger Sub and GLDD. In connection therewith:
(a) Merger Sub will launch a tender offer (the “ Tender Offer ”) to offer to purchase all outstanding shares of GLDD
common stock, par value $0.0001 per share (the “ GLDD Shares ”), upon the terms and subject to the conditions set forth in the Merger Agreement;
(b) there will be validly tendered and not withdrawn on or prior to the “Expiration Date” (as defined in the Merger Agreement) a
number of GLDD Shares which, together with any GLDD Shares then owned by Saltchuk and its subsidiaries (including Merger Sub), represents at least one GLDD Share more than a majority of the issued and outstanding GLDD Shares as of the expiration of
the Tender Offer (the “ Minimum Tender Condition ”);
(c) Merger Sub will be merged with and into GLDD pursuant to
Section 251(h) of the General Corporation Law of the State of Delaware (the “ DGCL ”), with GLDD surviving as a wholly-owned subsidiary of Saltchuk, without the requirement for approval of any stockholder of GLDD, to be
effected promptly following the consummation of the Tender Offer (and in any event within two business days after the consummation thereof) (the “ Merger Agreement Condition ”);
(d) the Borrower will obtain the Bridge Credit Facility as described in Exhibit B to the Bridge Commitment Letter in an aggregate
principal amount equal to (or, at the option of the Borrower, an amount less than) $1,300,000,000 (the “ Bridge Credit Facility ”) (as such amount shall be reduced from time to time in accordance with the terms set forth in
Exhibit B to the Bridge Commitment Letter);
(e) the fees, premiums, expenses and other transaction costs incurred in connection
with the Transactions (the “ Transaction Costs ”) will be paid; and
(f) the proceeds of the Bridge Credit
Facility will be used to pay a portion of the consideration and other amounts owing in connection with the Acquisition, to repay the “Existing Target Indebtedness” (as defined in Exhibit C hereto), and to pay all or a portion of
the Transaction Costs.
The transactions described above in clauses (a) through (f) (inclusive) are collectively referred to as the
“ Transactions ”. For purposes of the Bridge Commitment Letter, the Bridge Fee Letter, and the Lead Left Fee Letter, “ Acquisition Funding Date ” means the date of the consummation of the Tender Offer
and the satisfaction or waiver of the relevant conditions set forth in Exhibit C to the Bridge Commitment Letter and the funding of the Bridge Credit Facility.
A-1
EXHIBIT B
SUMMARY OF TERMS AND CONDITIONS
BRIDGE CREDIT FACILITY
Attached
S UMMARY OF T ERMS AND
C ONDITIONS
February 10, 2026
Capitalized terms not otherwise defined herein (this “ Bridge Term Sheet ” or this “ Term Sheet ”) have the
same meanings as specified therefor in the Bridge Commitment Letter (including the Exhibits thereto) to which this Exhibit A is attached.
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B ORROWER : |
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Saltchuk Resources, Inc., a Washington corporation (the “ Borrower ”). |
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G UARANTORS : |
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All obligations of the Borrower under the Bridge Credit Facility shall be guaranteed by the Borrower’s subsidiaries that are required to act as guarantors under the Existing Revolving Credit Agreement (as defined below) (each
a “ Guarantor ” and collectively, the “ Guarantors ” and, together with the Borrower, each a “ Loan Party ” and collectively, the “ Loan Parties ”); it
being understood and agreed that none of the Target Entities shall be required to become Guarantors on the Acquisition Funding Date and shall only be required to become Guarantors thereafter under and to the extent the same would be required by
Section 6.12 of the Existing Revolving Credit Agreement. Certain cash management and hedging obligations also shall be guaranteed by the Loan Parties, consistent with the requirements of the Existing Revolving Credit Agreement. All such
obligations shall constitute “ Guaranteed Obligations ”. |
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T RANSACTIONS : |
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The Borrower shall acquire the Target pursuant to the Transactions described in Exhibit A to the Commitment Letter. |
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A DMINISTRATIVE A GENT : |
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U.S. Bank National Association (“ U.S. Bank ”) will act as sole and exclusive administrative agent for the Lenders (the “ Administrative Agent ”). |
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J OINT L EAD A RRANGERS AND J OINT R UNNERS : |
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U.S. Bank (in such capacity, the “ Lead Left Arranger ”), BofA Securities, Inc., PNC Capital Markets LLC, and Wells Fargo Securities, LLC (each of the foregoing, a “ Lead Arranger ”;
collectively, the “ Lead Arrangers ”). |
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L ENDERS : |
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U.S. Bank, Bank of America, N.A., PNC Bank, National Association, Wells Fargo Bank, National Association, and other banks, financial institutions and institutional lenders selected in accordance with the terms of the Bridge
Commitment Letter. |
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B RIDGE C REDIT F ACILITY : |
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A senior unsecured term loan credit facility in an aggregate principal amount in U.S. dollars of $1,300,000,000 (the “ Bridge Credit Facility ”; the loans thereunder, the
“ Loans ”). The Bridge Credit Facility shall be drawn, in whole or in part, if at all, on the Acquisition Funding Date. All undrawn commitments, if any, shall automatically terminate immediately subsequent to the Acquisition
Funding Date. |
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P URPOSE : |
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The proceeds shall be used by the Borrower (i) to pay a portion of consideration for the Acquisition, (ii) to pay certain Transaction Costs, and (iii) to repay Existing Target Indebtedness. |
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I NTEREST R ATES AND F EES : |
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As set forth in Annex I hereto. |
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C ALCULATION OF I NTEREST AND F EES : |
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Other than calculations in respect of interest at the Base Rate (as defined on Annex I hereto) (which shall be made on the basis of actual number of days elapsed in a 365/366 day year), all calculations of interest and fees shall be
made on the basis of actual number of days elapsed in a 360-day year. |
B-1
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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D OCUMENTATION P RINCIPLES : |
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Subject to the immediately succeeding paragraph, the Loan Documentation will be based on, and substantially similar to, that certain Credit Agreement, dated as of May 21, 2024, and amended pursuant to a First Amendment to
Credit Agreement dated as of October 14, 2025, and as further amended pursuant to a Second Amendment to Credit Agreement dated as of February 10, 2026, among the Borrower, certain of its affiliates, the lenders party thereto, and Bank of
America, N.A., as administrative agent (as in effect on the date hereof, the “ Existing Revolving Credit Agreement ”). |
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For purposes hereof, the term “substantially similar to the Existing Revolving Credit Agreement” and words of similar import means substantially the same as the Existing Revolving Credit Agreement as in effect on the
date hereof with modifications (a) as are necessary to reflect the other terms specifically set forth in the Bridge Commitment Letter and this Bridge Term Sheet (including the limited conditions to funding as set forth herein) and, if
applicable, the Bridge Fee Letter, including, without limitation, having such agreement evidence a single-draw term loan credit facility, (b) to reflect any changes in law or accounting standards since the date of the Existing Revolving Credit
Agreement, and (c) that, subject to clauses (a) and (b), are otherwise no less favorable to the Borrower and its subsidiaries, taken as a whole, than those set forth in the Existing Revolving Credit Agreement, unless otherwise agreed by the
Borrower. |
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The two immediately preceding paragraphs, collectively, shall be referred to herein as the “ Documentation Principles ”. |
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C OST AND Y IELD P ROTECTION : |
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Consistent with the Documentation Principles, substantially similar to the Existing Revolving Credit Agreement. |
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M ATURITY : |
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The Bridge Credit Facility will mature on the date that is 364-days after the Acquisition Funding Date (the “ Initial Maturity Date ”); provided , that the
Initial Maturity Date automatically shall be extended by an additional 180 days (as so extended, the “ Extended Maturity Date ”) so long as (x) the Borrower, at least 30 days prior to the occurrence of the
Initial Maturity Date, provides written notice to the Administrative Agent and the Lenders that it wishes to extend the Initial Maturity Date as contemplated above; (y) no Event of Default is outstanding on the date such notice is delivered or
on the Initial Maturity Date; and (z) on the Initial Maturity Date, the Borrower pays to the Administrative Agent, for the ratable benefit of the Lenders, the “Extension Fee” (as defined below). |
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S CHEDULED A MORTIZATION : |
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None. |
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O PTIONAL P REPAYMENTS AND C OMMITMENT R EDUCTIONS ; M ANDATORY PREPAYMENTS AND C OMMITMENT
R EDUCTIONS : |
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The Bridge Credit Facility may be prepaid at any time in whole or in part without premium or penalty, upon written notice, at the option of the Borrower. Subject to Documentation Principles, any prepayment of Term SOFR advances
other than at the end of the applicable interest periods therefor shall be subject to funding indemnification provisions consistent with the Existing Revolving Credit Agreement. The commitment under the Bridge Credit Facility may be reduced
permanently or terminated by the Borrower at any time without premium or penalty. |
B-2
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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The following mandatory prepayments and commitment reductions shall be required in respect of the Bridge Credit Facility: |
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(i) 100% of the committed amount of any Qualifying Loan Facility (as defined below) entered
into after the date of the Bridge Commitment Letter;
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(ii) without duplication of clause (i) above, 100% of the Net Cash Proceeds (as
defined below) received by the Borrower or any of its subsidiaries (other than any Unrestricted Subsidiary (as defined in the Existing Revolving Credit Agreement) in existence as of the date of the Bridge Commitment Letter) after the date of the
Bridge Commitment Letter from the issuance and sale of any senior notes or any other debt securities (including any debt securities convertible or exchangeable into equity securities or hybrid debt-equity securities) or incurrence of any other debt
for borrowed money, other than (a) the Bridge Credit Facility, (b) borrowings under the Borrower’s existing revolving and term loan credit facilities, including the Existing Revolving Credit Agreement, (c) intercompany indebtedness
among the Borrower and/or its subsidiaries, (d) financing leases, letters of credit, foreign subsidiary working capital facilities, purchase money and equipment financings, receivables financings, sale and leaseback arrangements or other
similar obligations, in each case, incurred in the ordinary course of business, (e) any indebtedness of the Target permitted to be incurred by the Target after the date hereof but prior to the Acquisition Funding Date, or permitted to remain
outstanding on the Acquisition Funding Date, in each case, under the Merger Agreement, (f) other debt to the extent the net cash proceeds of such debt are utilized to refinance any debt of the Borrower or its subsidiaries within six months of
the maturity thereof and pay any fees or other amounts in respect thereof or otherwise in connection therewith (including any prepayment or redemption premiums and accrued interest thereon) and (g) other indebtedness in an aggregate principal
amount not exceeding US$50,000,000;
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(iii) 100% of the Net Cash Proceeds received by the Borrower after the date of the
Bridge Commitment Letter from the issuance and sale of any equity securities by the Borrower (including, to the extent not duplicative of clause (ii) above, any securities convertible or exchangeable into or exercisable for equity securities or
other equity-linked securities), other than issuances pursuant to employee stock plans, compensation plans or other benefit or employee or director incentive arrangements (including, for the avoidance of doubt, employee and director 401(k) plans);
and
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(iv) 100% of the Net Cash Proceeds received by the Borrower or any of its subsidiaries
(other than any Unrestricted Subsidiary (as defined in the Existing Revolving Credit Agreement) in existence as of the date of the Bridge Commitment Letter) after the date of the
Bridge
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B-3
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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Commitment Letter from the sale or other disposition of any property or assets of the Borrower or any of its
subsidiaries (including any sale and leaseback transaction and sales or issuances of equity interests in any subsidiary of the Borrower, but excluding proceeds of any casualty loss or damage to, or any condemnation of, any property or asset of the
Borrower or any of its subsidiaries) outside the ordinary course of business, including sales or issuances of equity interests in any subsidiary of the Borrower, other than (i) sales, issuances and other dispositions between or among the
Borrower or any of its subsidiaries and (ii) sales and other dispositions the Net Cash Proceeds of which do not exceed US$50,000,000 in any transaction or series of related transactions (it being also understood that any casualty loss or damage
to, or any condemnation of, any property or asset of the Borrower or any of its subsidiaries shall not be subject to this clause (iv)); provided that if the Borrower shall have given written notice to the Lead Arranger or, after the
Acquisition Funding Date, the Administrative Agent, that the Borrower or its subsidiaries intend to reinvest such Net Cash Proceeds within 180 days of receipt thereof in long-term assets to be used in the business of the Borrower and/or its
subsidiaries, such Net Cash Proceeds (or the portion thereof specified in such notice) shall not be subject to this clause (iv), except if such Net Cash Proceeds are not so reinvested by the end of such
180-day period (or, to the extent committed to be reinvested within such 180-day period, within 270 days of receipt thereof), in which case the portion thereof not so
reinvested shall then be subject to the provisions of this clause (iv); it being understood that any prepayment or commitment reduction arising under this clause (iv) shall be applied ratably to the Bridge Credit Facility and any other senior
debt that requires, as of the date of the Bridge Commitment Letter, an equivalent payment as a result of such event.
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“ Qualifying Loan Facility” means any credit facility (including any tranche of any credit facility) that is entered into by the Borrower for the stated purpose of providing financing for the Acquisition or
any portion thereof; provided that the definitive credit or similar agreement with respect thereto has become effective and the conditions precedent to funding thereunder are no less favorable to the Borrower or are more favorable to the
Borrower than the conditions set forth herein to the funding of the Bridge Credit Facility. |
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“ Net Cash Proceeds ” means: |
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(a) with respect to the issuance, sale or incurrence of debt securities or
debt for borrowed money, the excess of (i) cash actually received by the Borrower or any of its subsidiaries in connection therewith (or for purposes of mandatory reductions of commitments under the Bridge Credit Facility, received into escrow,
provided that the conditions to the release thereof from escrow are no less favorable to the Borrower
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B-4
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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or are more favorable to the Borrower than the conditions set forth herein to the funding of the Bridge Credit
Facility, as determined in good faith by the Borrower) over (ii) the underwriting or issuance discounts, commissions, fees and other out-of-pocket expenses
incurred by the Borrower or any of its subsidiaries in connection therewith;
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(b) with respect to the issuance and sale of any equity securities of the
Borrower, the excess of (i) the cash actually received by the Borrower in connection therewith over (ii) the underwriting or issuance discounts, commissions, fees and other out-of-pocket expenses incurred by the Borrower in connection therewith; and
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(c) with respect to a sale or other disposition of any property or assets of
the Borrower or any of its subsidiaries, the excess, if any, of (i) the cash actually received by the Borrower or its subsidiaries in connection therewith (including any cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) payments made to retire any indebtedness that is secured by such asset and that is required to be repaid in connection with the sale or other
disposition thereof, (B) all fees and out-of-pocket costs and expenses incurred by the Borrower or any of its subsidiaries in connection therewith (including
attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, other customary expenses and brokerage, consultant and other customary fees actually incurred
in connection therewith), (C) taxes reasonably estimated to be payable in connection with such transaction (including sales, use and other transfer taxes, deed or mortgage recording taxes), and (D) the amount of reserves established by the
Borrower or any of its subsidiaries in good faith and pursuant to commercially reasonable practices for adjustment in respect of the sale price of such property or assets in accordance with applicable generally accepted accounting principles or to
fund contingent liabilities reasonably estimated to be payable and that are associated with such event, provided that if the amount of such reserves exceeds the required amount thereof, then such excess, upon the determination thereof, shall
then constitute Net Cash Proceeds.
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For purposes of determining the amount of any required commitment reduction or prepayment of loans under the Bridge Credit Facility, the U.S. dollar equivalent of any Net Cash Proceeds or, in the case of a Qualifying Loan Facility,
commitments denominated in a currency other than U.S. dollars will be determined based on customary exchange rates prevailing at the time of receipt by the Borrower or its subsidiaries of such Net Cash Proceeds or such
commitments. |
B-5
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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Any required commitment reduction resulting from any of the foregoing shall be effective on the same day as such Net Cash Proceeds are actually received (or, where applicable, received into escrow) or, in the case of any Qualifying
Loan Facility, the date of effectiveness of the definitive credit or similar agreement with respect thereto. Any required prepayment of Loans resulting from any of the foregoing shall be made on or prior to the fifth business day after such Net Cash
Proceeds are received. The Borrower shall provide the Administrative Agent with prompt notice of any event giving rise to a requirement for a commitment reduction or prepayment of loans under the Bridge Credit Facility, together with a reasonably
detailed calculation of the amount of such reduction or prepayment. |
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All mandatory commitment reductions and prepayments of loans under the Bridge Credit Facility required above shall be applied (a) prior to the funding of loans, to commitments under the Bridge Credit Facility, and
(b) after the funding of loans, to the ratable repayment thereof. |
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C ONDITIONS P RECEDENT TO EFFECTIVENESS OF THE L OAN D OCUMENTATION AND THE
B ORROWING ON THE A CQUISITION F UNDING D ATE : |
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The effectiveness of the Loan Documentation and the availability of, and full funding of, the Bridge Credit Facility on the Acquisition Funding Date in each case shall be subject solely to the conditions precedent set forth in
Exhibit C to the Bridge Commitment Letter. |
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R EPRESENTATIONS AND W ARRANTIES : |
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Subject to Documentation Principles, substantially similar to those contained in the Existing Revolving Credit Agreement, with additional exceptions, qualifications and modifications, if any, to be agreed, and in any event limited
to the following: (i) existence, qualification and power; (ii) authorization; no contravention (including no conflict with the Merger Agreement); (iii) governmental authorization; other consents; (iv) binding effect; (v)
financial statements; no material adverse change; (vi) litigation; (vii) no default; (viii) ownership of property; liens; (ix) environmental compliance; (x) insurance; (xi) taxes; (xii) ERISA compliance; (xiii) subsidiaries;
(xiv) margin regulations; investment company act; (xv) disclosure; (xvi) compliance with laws; (xvii) taxpayer identification numbers; (xviii) intellectual property; licenses; etc.; (xix) solvency (to be defined and
determined in a manner consistent with the manner in which solvency is defined and determined in the solvency certificate in the form set forth in Exhibit D ); (xx) OFAC; (xxi) anti-corruption laws: (xxii) affected financial
institutions; (xxiii) covered entities; (xxiv) beneficial ownership certification; and (xxv) outbound investment rules. Immediately after the Acquisition Funding Date and the consummation of the Acquisition, the Borrower automatically
shall be deemed to make all of the representations and warranties set forth in the Loan Documentation, including, without limitation, no outstanding default or event of default. |
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“ Material Adverse Effect ” shall have the meaning set forth in the Existing Revolving Credit Agreement. |
B-6
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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C OVENANTS : |
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Subject to Documentation Principles, substantially similar to those contained in the Existing Revolving Credit Agreement, with exceptions, qualifications and modifications, if any, to be agreed, and in any event limited to the
following: |
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(a) Affirmative Covenants : (i) financial statements; (ii)
certificates; other information; (iii) notices; (iv) payment of obligations; (v) preservation of existence; (vi) maintenance of properties; (vii) maintenance of insurance; (viii) compliance with laws; (ix) books and
records; (x) inspection rights; (xi) ownership of guarantors; (xii) material subsidiaries (with the understanding that the Target and its applicable subsidiaries shall be required to become Guarantors in accordance with Section 6.12
of the Existing Revolving Credit Agreement); (xiii) compliance with environmental laws; (xiv) preparation of environmental reports; (xv) use of proceeds; (xvi) further assurances; and (xvii) anti-corruption laws.
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(b) Negative Covenants : (i) liens; (ii) investments; (iii)
indebtedness; (iv) fundamental changes; (v) dispositions; (vi) lease obligations; (vii) restricted payments; (viii) change in nature of business; suspension of business; (ix) transactions with affiliates; (x) burdensome
agreements; (xi) use of proceeds; (xii) sanctions; (xiii) anti-corruption laws; and (xiv) outbound investment rules.
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(c) Financial Covenants : (i) Consolidated Net Leverage Ratio not
in excess of 3.50 to 1.00 (which the Borrower may elect to increase to 4.00 to 1.00 for four consecutive fiscal quarters in connection with a material acquisition, including, without limitation, in connection with the Acquisition), and
(ii) Fixed Charge Coverage Ratio of at least 1.50 to 1.00. The foregoing financial covenants shall be determined in accordance with the Existing Revolving Credit Agreement (including the use of the defined terms referenced in connection with
such financial covenants and the netting of amounts contemplated in the Existing Revolving Credit Agreement), subject to any modifications thereto mutually acceptable to the Borrower and the Lenders.
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E VENTS OF D EFAULT : |
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Subject to Documentation Principles, substantially similar to those contained in the Existing Revolving Credit Agreement, with exceptions, qualifications and modifications, if any, to be agreed, and in any event limited to the
following: (i) non-payment of principal, interest (with a three-day grace period), and other obligations (with a five-day
grace period); (ii) breaches of affirmative, negative and financial covenants (subject to grace and cure periods set forth in the Existing Revolving Credit Agreement); (iii) incorrectness of representations and warranties; (iv) cross-default to
indebtedness exceeding $25,000,000 in principal amount; (v) voluntary or involuntary bankruptcy and insolvency events; inability to pay debts; attachments; (vi) judgments (subject to a $25,000,000 threshold amount); (vii) ERISA;
(viii) change of control; (ix) invalidity of loan documents; and (x) to the extent Target Shares tendered in the Tender Offer are purchased thereunder prior to the closing date for the Merger, the failure to consummate the Merger
within five business days after the Acquisition Funding Date. |
B-7
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B RIDGE C REDIT F ACILITY
S UMMARY OF T ERMS AND C ONDITIONS
F EBRUARY 10, 2026
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C ONFIDENTIAL I NFORMATION |
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A SSIGNMENTS AND P ARTICIPATIONS : |
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Subject to Documentation Principles, substantially similar to the Existing Revolving Credit Agreement (subject, in the case of assignments prior to the Acquisition Funding Date, to the provisions of the Bridge Commitment Letter
(which shall apply to all Lenders), and provided that in no event will any assignment or participation be permitted to Disqualified Lenders). Notwithstanding the foregoing, to the extent that prior to the Acquisition Funding Date commitments with
respect to the Bridge Credit Facility have been syndicated as permitted by the Bridge Commitment Letter to a person that is neither a Disqualified Lender nor a Permitted Assignee, then the Initial Lender may assign the corresponding Loans to such
person promptly following the funding of such Loans on the Acquisition Funding Date without the consent of the Borrower. |
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W AIVERS AND A MENDMENTS : |
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Subject to Documentation Principles, substantially similar to the Existing Revolving Credit Agreement. |
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I NDEMNIFICATION : |
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Subject to Documentation Principles, substantially similar to the Existing Revolving Credit Agreement. |
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G OVERNING L AW : |
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State of New York. |
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E XPENSES : |
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Subject to Documentation Principles, substantially similar to the Existing Revolving Credit Agreement. |
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C OUNSEL TO THE A DMINISTRATIVE A GENT : |
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Morgan, Lewis & Bockius LLP. |
B-8
ANNEX I
TO EXHIBIT A
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I NTEREST R ATES : |
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At the Borrower’s option, any Loan that is made to it will bear interest at a rate equal to Term SOFR or the Base Rate, plus, in each
case, the Applicable Rate therefor, as all of the foregoing shall be determined in accordance with the Performance Pricing grid set forth below.
“ Term SOFR ” and “ Base Rate ” will have customary meanings substantially similar to those in the
Existing Revolving Credit Agreement. Term SOFR will not have a credit spread adjustment, but will have a 0% “floor”.
The Borrower may select interest periods of 1, 3 or 6 months for Loans accruing interest at Term SOFR, subject to availability. Interest shall be payable at
the end of the selected interest period, but no less frequently than quarterly for such loans.
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D EFAULT I NTEREST : |
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Default interest shall accrue as contemplated by the Existing Revolving Credit Agreement (2% above then applicable rates). |
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P ERFORMANCE P RICING : |
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The Applicable Rate for Loans shall be, at any time, the applicable rate per annum set forth in the table below based on the Consolidated Net Leverage Ratio. |
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Pricing
Level
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Consolidated Net Leverage
Ratio
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Term SOFR Loans |
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Base Rate
Loans
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1 |
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1.375 |
% |
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0.375 |
% |
2 |
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≥ 1.75 to 1.00 but |
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1.625 |
% |
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0.625 |
% |
3 |
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≥ 2.25 to 1.00 but |
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1.875 |
% |
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0.875 |
% |
4 |
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≥ 2.75 to 1.00 but |
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2.125 |
% |
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1.125 |
% |
5 |
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≥ 3.25 to 1.00 |
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2.375 |
% |
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1.375 |
% |
The Applicable Rate will increase, in each Pricing Level, by 0.25% per annum on each of the 90 th , 180 th , and 270 th day after the Acquisition Funding Date.
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D URATION F EES : |
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The Borrower will pay a fee (the “ Duration Fee ”) to each Lender on each date set forth in the grid below in an amount equal to the percentage, determined in accordance with the grid below, of the principal
amount of the Loans of such Lender outstanding at the close of business, New York City time, on such date: |
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Duration Fees
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90 days after the Acquisition Funding Date |
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180 days after the Acquisition Funding Date |
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270 days after the Acquisition Funding Date |
0.50% |
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0.50% |
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0.50% |
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E XTENSION F EES : |
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If the Initial Maturity Date is extended to the Extended Maturity Date as contemplated by this Bridge Term Sheet, the Borrower will pay a fee (the “ Extension Fee ”) to the Administrative Agent, for the
ratable benefit of each Lender with outstanding Loans on the Initial Maturity Date, equal to 0.25% multiplied by the aggregate principal amount of Loans outstanding on the Initial Maturity Date. |
B-9
EXHIBIT C
CONDITIONS PRECEDENT TO ACQUISITION FUNDING DATE
Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Bridge Commitment Letter to which this
Exhibit C is attached.
Subject to the Certain Funds Provision, the effectiveness of the Loan Documentation and the availability
of, and full funding of, the Bridge Credit Facility on the Acquisition Funding Date in each case shall be subject solely to the satisfaction (or waiver by the Lead Arrangers) of the following conditions precedent:
(i) [Intentionally Omitted].
(ii) Substantially concurrently with the funding of the Bridge Credit Facility on the Acquisition Funding Date, the Tender Offer shall be
consummated in all material respects in accordance with the terms of the Merger Agreement, but without giving effect to any amendments, waivers or consents by the Borrower that are materially adverse to the interests of the Initial Lenders in their
capacities as such without the consent of the Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned (provided that the Lead Arrangers shall be deemed to have consented to any such amendment or waiver unless they shall
object thereto within five business days after receipt of notice of such amendment or waiver) (it being understood that (a) any decrease in the purchase shall not be materially adverse to the interests of the Initial Lenders or the Lead Arrangers
provided such decrease is less than 10% or so long as such decrease is allocated to reduce the amount of the Bridge Credit Facility, (b) any increase in the purchase price shall not be materially adverse to the Initial Lenders or the Lead
Arrangers so long as such increase is funded by proceeds of borrowings under the Existing Revolving Credit Agreement or cash on hand of the Borrower, (c) the granting of any consent under the Merger Agreement that is not materially adverse to
the interests of the Initial Lenders or the Lead Arrangers shall not otherwise constitute an amendment or waiver and (d) any amendment or waiver of the Minimum Tender Condition or the Merger Agreement Condition shall be materially adverse to
the interests of the Initial Lenders and Lead Arrangers. The Merger shall, on or as soon as practicable following the Acquisition Funding Date (and in any event no later than two business days thereafter), be consummated in all material respects
pursuant to the terms of the Merger Agreement. To the extent GLDD Shares tendered in the Tender Offer are accepted for purchase and paid for prior to the date of the closing of the Merger, all conditions to the closing of the Merger pursuant to the
Merger Agreement, other than the filing of a certificate of merger with the Secretary of State of the State of Delaware and other conditions that by their nature are to be satisfied on the closing of the Acquisition, shall have been satisfied.
(iii) The Lead Arrangers shall have received for Target and its subsidiaries audited consolidated balance sheets and the related audited
consolidated statements of operations, comprehensive income (loss), cash flows and equity, in each case, prepared at the time thereof in accordance with U.S. GAAP in all material respects (except as may be indicated therein) for the fiscal years (or
the periods) ended as of December 31, 2023 and December 31, 2024. The Lead Arrangers shall have received for Target and its subsidiaries unaudited condensed consolidated balance sheets and the related unaudited condensed consolidated
statements of operations, comprehensive income (loss), cash flows and equity, in each case, prepared at the time thereof in accordance with U.S. GAAP in all material respects (except as may be indicated therein and except for normal year-end adjustments) for the fiscal quarters ended as of March 31, 2025, June 30, 2025, and September 30, 2025. The Lead Arrangers hereby acknowledge receipt of each of the foregoing financial
statements. The Lead Arrangers also shall have received unaudited condensed consolidated balance sheets and the related unaudited condensed consolidated statements of operations, comprehensive income (loss), cash flows and equity, in each case,
prepared at the time thereof in accordance with U.S. GAAP in all material respects (except as may be indicated therein and except for normal year-end adjustments) for Target and its subsidiaries for each
fiscal quarter occurring after December 31, 2025 (other than the fiscal quarter ending December 31, 2026) that ends at least 45 days prior to the Acquisition Funding Date. The Lead Arranger shall have received for Target and its
subsidiaries audited consolidated balance sheets and the related audited consolidated statements of operations, comprehensive income (loss), cash flows and equity, in each case, prepared at the time thereof in accordance
C-1
with U.S. GAAP in all material respects (except as may be indicated therein) for the fiscal year ended December 31, 2025 if the Acquisition Funding Date occurs after March 31, 2026.
Information required to be delivered pursuant to this paragraph (iii) shall be deemed to have been delivered to the Lead Arrangers if such information, or one or more annual or quarterly reports containing such information, shall be available
on the website of the SEC at http://www.sec.gov.
(iv) (A) The Administrative Agent shall have received customary legal opinions,
corporate organizational documents of the Borrower and the Guarantors, good standing certificates for the Borrower and the Guarantors, to the extent applicable, customary resolutions of the appropriate governing body with respect to the Borrower and
the Guarantors, a customary closing certificate with respect to the Borrower and the Guarantors, and an appropriate borrowing notice, (B) the Administrative Agent shall have received the Borrower’s, the Guarantors’ and the Lenders’
executed signature page to the credit agreement evidencing the Bridge Credit Facility, which credit agreement shall be consistent with the Bridge Commitment Letter, the Bridge Term Sheet, and the Documentation Principles, (C) the Specified
Representations shall be true and correct in all material respects on the Acquisition Funding Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in
all material respects (unless already qualified by materiality or “material adverse effect”, in which case they shall be true and correct in all respects) as of such earlier date) after giving effect to the Acquisition and the initial
funding of the loans under the Bridge Credit Facility and (D) the Merger Agreement Representations shall be true and correct as and to the extent required by clause (c) of the Certain Funds Provision.
(v) Substantially concurrently with the funding of the Bridge Credit Facility on the Acquisition Funding Date, the Lead Arrangers, the
Administrative Agent and the Lenders shall receive all fees and expenses required to be paid on or prior to the Acquisition Funding Date pursuant to the Bridge Fee Letter and the Lead Left Fee Letter and invoiced to the Borrower at least two
business days prior to the Acquisition Funding Date (which amounts may, at the Borrower’s election, be offset against the proceeds funded under the Bridge Credit Facility on the Acquisition Funding Date).
(vi) The Lead Arrangers shall have received, at least three business days prior to the Acquisition Funding Date, all reasonably necessary
documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership
Regulation reasonably requested in writing by the Lead Arrangers at least ten business days prior to the Acquisition Funding Date.
(vii)
The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in substantially the form of Exhibit D hereto.
(viii) A Company Material Adverse Effect (as defined in the Merger Agreement) shall not have occurred since the date of the Merger Agreement.
(ix) All indebtedness under the following financing agreements shall be fully repaid (or, in the case of letters of credit, replaced,
cash collateralized, otherwise collateralized with “back to back” letters of credit, or otherwise addressed in a manner reasonably acceptable to the applicable letter of credit issuer), all commitments to extend credit thereunder shall
be terminated, and, if applicable, all liens in respect of the foregoing will be released, substantially simultaneously with the initial borrowing under the Bridge Credit Facility (the “ Existing Target Indebtedness ”):
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a. |
Second Amended and Restated Revolving Credit and Security Agreement, dated as of July 29, 2022, by and
among GLDD, certain of its affiliates, the lenders party thereto, and PNC Bank, National Association as agent, as amended, restated, supplemented or otherwise modified from time to time; and
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b. |
Indenture, dated May 25, 2021, among GLDD, certain of its affiliates and Wells Fargo Bank, National
Association, as Trustee, together with all notes issued pursuant thereto, including GLDD’s 2029 Notes, in each case as amended, restated, supplemented or otherwise modified from time to time.
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C-2
EXHIBIT D
Form of Solvency Certificate
[DATE]
This Solvency
Certificate (“ Certificate ”) of Saltchuk Resources, Inc. (the “ Borrower ”) is delivered pursuant to Section [ ] of the Credit Agreement, dated as of [ ] (the
“ Credit Agreement ”), by and among the Borrower, the Guarantors, the Lenders from time to time party thereto, and U.S. Bank National Association, as administrative agent. Unless otherwise defined herein, capitalized terms
used in this Certificate shall have the meanings set forth in the Credit Agreement.
I, [ ], the duly
elected, qualified and acting Chief Financial Officer of the Borrower, DO HEREBY CERTIFY that I have reviewed the Credit Agreement and the other Loan Documents referred to therein and have made such investigation as I have deemed necessary to enable
me to express a reasonably informed opinion as to the matters referred to herein.
I HEREBY FURTHER CERTIFY, in my capacity as Chief
Financial Officer and not in my individual capacity, that as of the date hereof, immediately after giving effect to the Transactions:
1.
The fair value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, at a fair valuation on a going concern basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise.
2. The present fair saleable value of the property of the Borrower and its Subsidiaries, on a consolidated and going concern 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 in the
ordinary course of business.
3. The Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such liabilities become absolute and matured in the ordinary course of business.
4. The
Borrower and its Subsidiaries are not engaged in businesses, and are not about to engage in businesses for which they have unreasonably small capital, on a consolidated basis.
For purposes of this Certificate, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the
facts and circumstances existing as of the date hereof, would reasonably be expected to become an actual and matured liability.
For the
purpose of the foregoing, I have assumed there is no Default or Event of Default under the Credit Agreement on the date hereof and will be no Default or Event of Default under the Credit Agreement after giving effect to the funding under the Credit
Agreement.
* * *
D-1
IN WITNESS WHEREOF, the Borrower has caused this certificate to be executed on its behalf by
its Chief Financial Officer as of the date first written above.
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SALTCHUK RESOURCES, INC. |
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By: |
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Name: |
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Title: Chief Financial Officer |
D-2
### EX-99.(B)(2) - EX-99.(B)(2)
EX-99.(B)(2)
9
d94032dex99b2.htm
EX-99.(B)(2)
EX-99.(b)(2)
Exhibit (b)(2)
Execution Version
(deal) Published CUSIP Number:
795753AL6
(revolver) Published CUSIP Number: 795753AN2
(delayed draw term A-1 loan) Published CUSIP Number: 795753AM4
(delayed draw term A-2 loan) Published CUSIP Number: 795753AN2
CREDIT AGREEMENT
Dated as
of May 21, 2024
among
SALTCHUK RESOURCES, INC.
as
the Company,
CERTAIN SUBSIDIARIES OF THE COMPANY PARTY HERETO
as Borrowers or Guarantors,
BANK OF AMERICA, N.A.
as
Administrative Agent and L/C Issuer,
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Swing Line Lender,
and
THE LENDERS PARTY HERETO,
BOFA SECURITIES, INC.
WELL FARGO SECURITIES, LLC,
U.S. BANK NATIONAL ASSOCIATION,
PNC CAPITAL MARKETS LLC
and
JPMORGAN CHASE BANK, N.A.,
as
Joint Lead Arrangers and Joint
Bookrunners
TABLE OF CONTENTS
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Section |
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Page |
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS |
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5 |
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1.01
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Defined Terms
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5 |
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1.02
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Other Interpretive Provisions
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36 |
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1.03
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Accounting Terms
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37 |
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1.04
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Rounding
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38 |
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1.05
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Times of Day
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38 |
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1.06
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Letter of Credit Amounts
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38 |
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1.07
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Currency Equivalents Generally
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38 |
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1.08
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Rates
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39 |
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ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS |
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39 |
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2.01
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The Loans
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39 |
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2.02
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Borrowings, Conversions and Continuations of Loans
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40 |
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2.03
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Letters of Credit
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41 |
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2.04
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Swing Line Loans
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48 |
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2.05
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Mandatory Prepayment of Loans
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50 |
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2.06
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Voluntary Prepayments
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51 |
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2.07
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Termination or Reduction of Commitments
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52 |
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2.08
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Repayment of Loans
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53 |
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2.09
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Interest
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53 |
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2.10
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Fees
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54 |
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2.11
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Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
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55 |
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2.12
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Evidence of Debt
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55 |
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2.13
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Payments Generally; Administrative Agent’s Clawback
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56 |
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2.14
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Sharing of Payments by Lenders
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57 |
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2.15
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Designated Borrowers
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58 |
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2.16
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Incremental Facility Loans
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59 |
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2.17
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Cash Collateral
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61 |
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2.18
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Defaulting Lenders
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63 |
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ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY |
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65 |
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3.01
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Taxes
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65 |
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3.02
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Illegality
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68 |
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3.03
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Inability to Determine Rates
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68 |
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3.04
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Increased Costs
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70 |
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3.05
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Compensation for Losses
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71 |
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3.06
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Mitigation Obligations; Replacement of Lenders
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72 |
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3.07
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Survival
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72 |
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ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS |
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72 |
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4.01
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Conditions of Initial Credit Extension
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72 |
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4.02
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Conditions to all Credit Extensions
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73 |
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ARTICLE V REPRESENTATIONS AND WARRANTIES |
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74 |
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5.01
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Existence, Qualification and Power
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74 |
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5.02
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Authorization; No Contravention
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75 |
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5.03
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Governmental Authorization; Other Consents
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75 |
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5.04
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Binding Effect
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75 |
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5.05
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Financial Statements; No Material Adverse Effect
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75 |
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5.06
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Litigation
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75 |
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5.07
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No Default
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75 |
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5.08
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Ownership of Property; Liens
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76 |
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5.09
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Environmental Compliance
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76 |
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5.10
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Insurance
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77 |
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5.11
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Taxes
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77 |
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5.12
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ERISA Compliance
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77 |
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5.13
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Subsidiaries
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78 |
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5.14
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Margin Regulations; Investment Company Act
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78 |
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5.15
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Disclosure
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78 |
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5.16
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Compliance with Laws
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79 |
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5.17
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Taxpayer Identification Numbers
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79 |
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5.18
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Intellectual Property; Licenses, Etc
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79 |
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5.19
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Solvency
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79 |
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5.20
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OFAC
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79 |
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5.21
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Anti-Corruption Laws
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79 |
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5.22
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Affected Financial Institutions
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79 |
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5.23
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Covered Entities
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79 |
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5.24
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Beneficial Ownership Certification
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79 |
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ARTICLE VI AFFIRMATIVE COVENANTS |
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80 |
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6.01
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Financial Statements
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80 |
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6.02
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Certificates; Other Information
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80 |
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6.03
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Notices
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82 |
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6.04
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Payment of Obligations
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83 |
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6.05
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Preservation of Existence, Etc
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83 |
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6.06
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Maintenance of Properties
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83 |
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6.07
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Maintenance of Insurance
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83 |
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6.08
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Compliance with Laws
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83 |
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6.09
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Books and Records
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83 |
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6.10
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Inspection Rights
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83 |
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6.11
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Ownership of Guarantors
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84 |
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6.12
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Material Subsidiaries
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84 |
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6.13
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Compliance with Environmental Laws
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84 |
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6.14
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Preparation of Environmental Reports
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84 |
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6.15
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Use of Proceeds
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85 |
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6.16
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Further Assurances
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85 |
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6.17
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Anti-Corruption Laws
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85 |
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ARTICLE VII NEGATIVE COVENANTS |
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85 |
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7.01
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Liens
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85 |
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7.02
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Investments
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86 |
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7.03
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Indebtedness
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86 |
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7.04
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Fundamental Changes
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87 |
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7.05
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Dispositions
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87 |
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7.06
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Lease Obligations
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88 |
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7.07
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Restricted Payments
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89 |
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7.08
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Change in Nature of Business; Suspension of Business
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89 |
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7.09
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Transactions with Affiliates
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90 |
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7.10
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Burdensome Agreements
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90 |
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7.11
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Use of Proceeds
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90 |
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7.12
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Financial Covenants
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90 |
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7.13
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Sanctions
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91 |
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7.14
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Anti-Corruption Laws
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92 |
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ii
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ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES |
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92 |
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8.01
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Events of Default
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92 |
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8.02
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Remedies Upon Event of Default
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93 |
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8.03
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Application of Funds
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94 |
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ARTICLE IX ADMINISTRATIVE AGENT |
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95 |
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9.01
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Appointment and Authority
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95 |
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9.02
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Rights as a Lender
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95 |
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9.03
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Exculpatory Provisions
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95 |
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9.04
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Reliance by Administrative Agent
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96 |
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9.05
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Delegation of Duties
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96 |
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9.06
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Resignation of Administrative Agent
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97 |
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9.07
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Non-Reliance on Administrative Agent and Other
Lenders
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98 |
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9.08
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No Other Duties, Etc
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98 |
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9.09
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Administrative Agent May File Proofs of Claim
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98 |
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9.10
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Guaranty Matters
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99 |
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9.11
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ERISA Matters
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99 |
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9.12
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Recovery of Erroneous
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100 |
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9.13
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Guaranteed Cash Management Agreements and Guaranteed Hedge Agreements
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100 |
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ARTICLE X CONTINUING GUARANTY |
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101 |
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10.01
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Guaranty
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101 |
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10.02
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Rights of Lenders
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101 |
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10.03
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Certain Waivers
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102 |
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10.04
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Obligations Independent
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102 |
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10.05
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[Reserved]
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102 |
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10.06
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Borrower Indemnity
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102 |
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10.07
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Guarantor Contribution
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102 |
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10.08
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Subrogation
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102 |
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10.09
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Termination; Reinstatement
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103 |
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10.10
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Subordination
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103 |
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10.11
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Stay of Acceleration
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103 |
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10.12
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Condition of Borrower
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103 |
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10.13
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Keepwell
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103 |
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10.14
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Appointment of Company
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104 |
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ARTICLE XI MISCELLANEOUS |
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104 |
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11.01
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Amendments, Etc
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104 |
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11.02
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Notices; Effectiveness; Electronic Communications
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106 |
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11.03
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No Waiver; Cumulative Remedies; Enforcement
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107 |
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11.04
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Expenses; Indemnity; Damage Waiver
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108 |
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11.05
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Payments Set Aside
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109 |
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11.06
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Successors and Assigns
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110 |
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11.07
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Treatment of Certain Information; Confidentiality
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114 |
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11.08
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Right of Setoff
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115 |
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11.09
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Interest Rate Limitation
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115 |
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11.10
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Integration; Effectiveness
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115 |
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11.11
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Survival of Representations and Warranties
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115 |
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11.12
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Severability
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116 |
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11.13
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Replacement of Lenders
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116 |
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11.14
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Governing Law; Jurisdiction; Etc
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117 |
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iii
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11.15
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Waiver of Jury Trial
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118 |
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11.16
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No Advisory or Fiduciary Responsibility
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118 |
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11.17
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Electronic Execution; Electronic Records; Counterparts
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118 |
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11.18
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Acknowledgement and Consent to Bail-In of Affected
Financial Institutions
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119 |
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11.19
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Authorizations
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120 |
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11.20
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USA PATRIOT Act Notice
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120 |
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11.21
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Acknowledgement Regarding Any Supported QFCs
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120 |
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SCHEDULES |
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1.01
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Existing Letters of Credit
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2.01
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Commitments and Applicable Percentages
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5.09
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Environmental Matters
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5.12
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Pension Plans
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5.13
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Subsidiaries; Other Equity Investments
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5.18
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Intellectual Property Matters
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7.01
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Existing Liens
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7.03
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Existing Indebtedness
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11.02
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Administrative Agent’s Office; Certain Addresses for Notices
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EXHIBITS |
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Form of
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A
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Committed Loan Notice
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B-1
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Delayed Draw Term A-1 Note
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B-2
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Delayed Draw Term A-2 Note
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B-3
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Revolving Credit Note
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C
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Compliance Certificate
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D
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Assignment and Assumption Agreement
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E
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Additional Guarantor Joinder Agreement
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F
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Designated Borrower Request and Assumption Agreement
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G
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Designated Borrower Notice
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H
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U.S. Tax Compliance Certificates
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I
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Guaranteed Party Designation Notice
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J
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Notice of Loan Prepayment
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iv
CREDIT AGREEMENT
This CREDIT AGREEMENT (this “ Agreement ”) is entered into as of May 21, 2024, among SALTCHUK RESOURCES, INC., a
Washington corporation (the “ Company ”), certain Subsidiaries of the Company a party hereto pursuant to Section 2.15 (each a “ Designated Borrower ” and, together with the Company, the
“ Borrowers ” and, each a “ Borrower ”), the Guarantors (defined herein), the Lenders (defined herein), BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Swing Line Lender.
RECITALS
A. WHEREAS, the Loan Parties (as hereinafter defined) have requested that the Lenders, the Swing Line Lender and the L/C Issuer make loans and
other financial accommodations to the Loan Parties.
B. WHEREAS, the Lenders, the Swing Line Lender and the L/C Issuer have agreed to make
loans and other financial accommodations to the Loan Parties on the terms and subject to the conditions set forth herein.
NOW, THEREFORE,
in consideration of the foregoing, the mutual covenants and agreements herein contained, and for other good and valuable consideration receipt of which is hereby acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined Terms . As used in this Agreement, the following terms shall have the
meanings set forth below:
“ Acquisition ”, by any Person, means the acquisition by such Person, in a single transaction
or in a series of related transactions, of all or substantially all of the property (whether real, personal or mixed, or tangible or intangible) of another Person or any identifiable Business Unit, division or operations of any other Person, or more
than 50% of all of the voting Capital Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.
“ Additional Guaranteed Obligations ” means (a) all obligations arising under Guaranteed Cash Management Agreements and
Guaranteed Hedge Agreements and (b) all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the fees, charges and disbursements of counsel, in each case whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and fees are allowed claims in such proceeding; provided that Additional Guaranteed Obligations of a
Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.
“ Additional Guarantor Joinder
Agreement ” has the meaning specified in Section 6.12(a) .
“ Adjustment Period ” has
the meaning specified in Section 7.12(a) .
“ Administrative Agent ” means Bank of America in
its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“ Administrative Agent’s Office ” means the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 11.02 , or such other address or account as the Administrative Agent may from time to time notify the Company and the Lenders.
“ 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 any Person, another Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“ Aggregate Revolving
Commitments ” means the Revolving Credit Commitments of all the Lenders. The Aggregate Revolving Commitments as of the Closing Date are $800,000,000.
“ Agreement ” means this Credit Agreement.
“ All-In Yield ” means, as to any Indebtedness, the yield thereof, whether in the
form of interest rate, margin, original issue discount, upfront fees, a Term SOFR, SOFR Daily Floating Rate or Base Rate floor or otherwise, in each case, incurred or payable by the Borrowers generally to all lenders of such Indebtedness; provided
that original issue discount and upfront fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the stated life to maturity at the time of incurrence of the applicable
Indebtedness); and provided, further, that “All-In Yield” shall not include arrangement, structuring, commitment, underwriting or other similar fees (regardless of whether paid in whole or in part
to any lenders) not paid generally to all lenders of such Indebtedness.
“ Applicable Percentage ” means (a) in
respect of the Delayed Draw A-1 Facility, with respect to any Delayed Draw A-1 Lender at any time, the percentage (carried out to the ninth decimal place) of the Delayed
Draw A-1 Facility represented by (i) at any time during the Delayed Draw A-1 Availability Period, the percentage (carried out to the ninth decimal place) of the
Delayed Draw A-1 Facility represented by such Delayed Draw A-1 Lender’s Delayed Draw A-1 Commitment at such time, subject
to adjustment as provided in Section 2.18 , and (ii) with respect to any Delayed Draw A-1 Lender’s portion of the outstanding Delayed Draw Term A-1 Loan, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Delayed Draw Term A-1 Loan held by such Lender at such time,
subject to adjustment as provided in Section 2.18 ; (b) in respect of the Delayed Draw A-2 Facility, with respect to any Delayed Draw A-2 Lender
at any time, the percentage (carried out to the ninth decimal place) of the Delayed Draw A-2 Facility represented by (i) at any time during the Delayed Draw A-2
Availability Period, the percentage (carried out to the ninth decimal place) of the Delayed Draw A-2 Facility represented by such Delayed Draw A-2 Lender’s Delayed
Draw A-2 Commitment at such time, subject to adjustment as provided in Section 2.18 , and (ii) with respect to any Delayed Draw A-2
Lender’s portion of the outstanding Delayed Draw Term A-2 Loan, the percentage (carried out to the ninth decimal place) of the outstanding principal amount of such Delayed Draw Term A-2 Loan held by such Lender at such time, subject to adjustment as provided in Section 2.18 ; and (c) in respect of the Revolving Credit Facility, with respect to any Revolving Credit
Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in
Section 2.18 . If the commitment of each Delayed Draw A-1 Lender to make Delayed Draw Term A-1 Loans has been terminated pursuant to
Section 8.02 , or if the Delayed Draw A-1 Commitments have expired, then the Applicable Percentage of each Delayed Draw A-1 Lender in respect of
the Delayed Draw A-1 Facility shall be determined based on the Applicable Percentage of such Delayed Draw A-1 Lender in respect of the Delayed Draw A-1 Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of determination. If the commitment of each Delayed Draw A-2 Lender to make Delayed Draw Term A-2 Loans has been terminated pursuant to Section 8.02 , or if the Delayed Draw
A-2 Commitments have expired, then the Applicable Percentage
6
of each Delayed Draw A-2 Lender in respect of the Delayed Draw A-2 Facility shall be determined based on the
Applicable Percentage of such Delayed Draw A-2 Lender in respect of the Delayed Draw A-2 Facility most recently in effect, giving effect to any subsequent assignments
and to any Lender’s status as a Defaulting Lender at the time of determination. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02 , or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based
on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments and to any Lender’s status as a Defaulting Lender at the time of
determination. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto or in any documentation executed by such Lender pursuant to Section 2.16 , as applicable.
“ Applicable Rate ” means, for any day, the rate per annum set forth below opposite the applicable Level then in effect
(based on the Consolidated Net Leverage Ratio):
|
|
|
|
|
|
|
|
|
Pricing
Level |
|
Consolidated Net Leverage
Ratio
|
|
Commitment Fee,
A-1 Ticking Fee
and A-2 Ticking
Fee |
|
Term SOFR Loans,
SOFR Daily Floating
Rate Loans and Letter
of Credit Fees |
|
Base Rate Loans |
1 |
|
|
0.150% |
|
1.375% |
|
0.375% |
2 |
|
≥ 1.75 to 1.0 but |
0.200% |
|
1.625% |
|
0.625% |
3 |
|
≥ 2.25 to 1.0 but |
0.225% |
|
1.875% |
|
0.875% |
4 |
|
≥ 2.75 to 1.0 but |
0.250% |
|
2.125% |
|
1.125% |
5 |
|
≥ 3.25 to 1.0 |
|
0.300% |
|
2.375% |
|
1.375% |
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Net Leverage Ratio shall become
effective as of the first Business Day of the month immediately following the date the Administrative Agent receives a Compliance Certificate delivered pursuant to Section 6.02(b) . If the Company shall fail to provide any
such Compliance Certificate within 5 days after delivery of such Compliance Certificate is due, then, upon the request of the Required Lenders, Pricing Level 5 shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. In addition, at all times while the Default Rate is in effect,
the highest rate set forth in each column of the Applicable Rate shall apply. Notwithstanding anything to the contrary contained in this definition, (i) the determination of the Applicable Rate for any period shall be subject to the provisions
of Section 2.11(b) , (ii) the Applicable Rate in effect from the Closing Date through the first Business Day immediately following the date a Compliance Certificate is required to be delivered pursuant to
Section 6.02(b) for the fiscal quarter ending June 30, 2024 shall be Pricing Level 3, (iii) the Applicable Rate in effect from the date of the initial Borrowing of the Delayed Draw Term A-1 Loan through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) for the fiscal quarter of the Company in which such
Borrowing occurred, shall be determined based upon the Pricing Level corresponding to the Consolidated Net Leverage Ratio (calculated on a pro forma basis after giving effect to the borrowing of the Delayed Draw Term
A-1 Loan) set forth in the Compliance Certificate delivered pursuant to Section 4.02(e) , (iv) if the OSG Acquisition is consummated without the Delayed Draw Term A-1 Loan being borrowed, the Applicable Rate in effect from the closing date of the OSG Acquisition through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b) for the fiscal quarter of the Company in which such Acquisition was consummated, shall be determined based upon the Pricing Level corresponding to the Consolidated Net Leverage Ratio (calculated on a pro
forma basis after giving effect to the OSG Acquisition) set forth in the certificate delivered pursuant to clause (f) of the definition of “Permitted Acquisition” and (v) the Applicable Rate in effect from the date of the
initial Borrowing of the Delayed Draw Term A-2 Loan through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) for
the fiscal quarter of the Company in which such Borrowing occurred, shall be determined
7
based upon the Pricing Level corresponding to the Consolidated Net Leverage Ratio (calculated on a pro forma basis after giving effect to the borrowing of the Delayed Draw Term A-2 Loan) set forth in the Compliance Certificate delivered pursuant to Section 4.02(f) . Any adjustment in the Applicable Rate shall be applicable to all Credit Extensions then existing or
subsequently made or issued.
“ Applicant Borrower ” has the meaning specified in Section 2.15 .
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Arrangers ” means BAS, Wells
Fargo Securities, LLC, U.S. Bank National Association, PNC Capital Markets LLC and JPMorgan Chase Bank, N.A., in their capacities as joint lead arranger and joint bookrunner.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the
consent of any party whose consent is required by Section 11.06(b )), and accepted by the Administrative Agent, in substantially the form of Exhibit D or any other form (including an electronic documentation form
generated by use of an electronic platform) approved by the Administrative Agent.
“ Attributable Indebtedness ” means,
on any date, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease or similar payments under the relevant lease or other applicable agreement or instrument that would appear on a balance sheet of such Person prepared as of such date in accordance with
GAAP if such lease or other agreement or instrument were accounted for as a Capitalized Lease.
“ Audited Financial
Statements ” means the audited consolidated balance sheet of the Company and its Subsidiaries for the fiscal year ended December 31, 2023, and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Company and its Subsidiaries, including the notes thereto.
“ Availability Period ”
means the period from and including the Closing Date to the earliest of (i) the Maturity Date for the Revolving Credit Facility, (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.07 , and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02 .
“ Bail-In Action ” means the exercise of
any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“ Bail-In Legislation ” means, (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the
United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“ Bank of America ” means Bank of America, N.A. and its successors.
“ BAS ” means BofA Securities, Inc., in its capacity as joint lead arranger and joint bookrunner.
“ Base Rate ” means for any day a fluctuating rate of interest per annum equal to the highest of (a) the Federal Funds
Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to
8
time by Bank of America as its “prime rate,” and (c) Term SOFR plus 1.00%, subject to the interest rate floors set forth therein; provided that if the Base Rate
shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening
of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of
clauses (a ) and ( b ) above and shall be determined without reference to clause (c ) above.
“ Base
Rate Loan ” means a Loan that bears interest based on the Base Rate.
“ Beneficial Ownership Certification ”
means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“ Beneficial Ownership
Regulation ” means 31 C.F.R. § 1010.230.
“ Benefit Plan ” means any of (a) an “employee benefit
plan” (as defined in 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”.
“ BHC Act Affiliate ” of a party means an “affiliate” (as such term is defined under, and interpreted in
accordance with, 12 U.S.C. 1841(k)) of such party.
“ Borrower ” and “ Borrowers ” each has the meaning
specified in the introductory paragraph hereto.
“ Borrower Materials ” has the meaning specified in
Section 6.02 .
“ Borrowing ” means a Revolving Credit Borrowing, a Swing Line Borrowing, a
Delayed Draw A-1 Borrowing or a Delayed Draw A-2 Borrowing, as the context may require.
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located.
“ Business
Unit ” means a business, business unit, division or product or service line, or the assets that constitute all or substantially all of the assets of any of the foregoing.
“ Capital Construction Fund ” means, with respect to any Person, a fund established by such Person under Chapter 535 of Title
46 of the United States Code, as amended, for the purpose of acquiring, constructing or reconstructing qualified vessels, including the fund established pursuant to that certain Capital Construction Fund Agreement dated September 13, 1983, among the
Company, certain of its Subsidiaries and MARAD.
“ Capital Stock ” means (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company, membership interests and (v) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
“ Capitalized Leases ” means all leases that have been or should be, in accordance
with GAAP, recorded as capitalized or financing leases.
9
“ Cash Collateral Fund Amount ” means, on any date of determination, the
aggregate fair market value of the property and assets held in any deposit accounts, securities accounts or escrow funds opened for the benefit of the Noteholders (solely in their capacity as holders of the notes issued in connection with the
Noteholder Documents) to receive and hold, at the election of any of the Loan Parties pursuant to the terms of any Noteholder Document, in lieu of a mandatory prepayment, their share of the net proceeds from any net proceeds of insurance that are
required to be paid to any such Noteholder(s) pursuant to the terms of any applicable Noteholder Document.
“ Cash
Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the Lenders, as collateral for L/C Obligations or obligations of the Revolving Credit Lenders to
fund participations in respect of L/C Obligations, (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the applicable L/C
Issuer, and/or (c) if the Administrative Agent and the applicable L/C Issuer shall agree, in their sole discretion, other credit support, in each case, in Dollars and pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral or other credit support.
“ Cash Management Agreement ” means any agreement to provide treasury or cash management services, including deposit
accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.
“ Cash Management Bank ” means any Person in its capacity as a party to a Cash Management Agreement that, (a) at the
time it enters into a Cash Management Agreement with a Loan Party or any Restricted Subsidiary, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Cash Management Agreement with a
Loan Party or any Restricted Subsidiary, in each case in its capacity as a party to such Cash Management Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided , however ,
that for any of the foregoing to be included as a “Guaranteed Cash Management Agreement” on any date of determination by the Administrative Agent, the applicable Cash Management Bank (other than the Administrative Agent or an Affiliate
of the Administrative Agent) must have delivered a Guaranteed Party Designation Notice to the Administrative Agent prior to such date of determination.
“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
“ CERCLIS ” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the
U.S. Environmental Protection Agency.
“ CFC ” means a Person that is a controlled foreign corporation under
Section 957 of the Code in which the Company or any Loan Party is a United States shareholder within the meaning of Section 951(b) of the Code.
“ Change in Law ” means the occurrence, after the Closing Date, 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, (x) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a
“Change in Law”, regardless of the date enacted, adopted, issued or implemented.
10
“ Change of Control ” means an event or series of events by which any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in
its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than Michael Garvey, Lynn Garvey or any of their lineal descendants (including by adoption) or trusts for the benefit of the foregoing persons or the estates
of the foregoing persons, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person
or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right an “option right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 50% or more of the Capital Stock of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all
such securities that such “person” or “group” has the right to acquire pursuant to any option right).
“ Closing Date ” means May 21, 2024.
“ CME ” means CME Group Benchmark Administration Limited.
“ Code ” means the Internal Revenue Code of 1986.
“ Collected Balance ” means, at any time, the ledger balance in the Swing Line Account minus the total dollar amount
of items deposited into the Swing Line Account for which, based upon the most recent collected funds schedule Swing Line Lender has provided to the Company, the Swing Line Account has not yet been credited for purposes of calculating the Collected
Balance.
“ Commitment ” means a Delayed Draw A-1 Commitment, a Delayed Draw A-2 Commitment or a Revolving Credit Commitment, as the context may require.
“ Committed Loan
Notice ” means a notice of (a) a Delayed Draw A-1 Borrowing, (b) a Delayed Draw A-2 Borrowing, (c) a Revolving Credit Borrowing, (d) a
conversion of Loans from one Type to the other, or (e) a continuation of Term SOFR Loans, pursuant to Section 2.02(a) , which shall be substantially in the form of Exhibit A or such other form as may be approved
by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq. ), as amended from time to time,
and any successor statute.
“ Communication ” means this Agreement, any Loan Document and any document, amendment,
approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to any Loan Document.
“ Company ” has the meaning specified in the introductory paragraph hereto.
“ Company Note Agreement One ” means that certain Fifth Amended and Restated Note Purchase and Private Shelf Agreement dated
as of January 30, 2017, by and among the Company, the Guarantors, PGIM, Inc. and each purchaser named on the Purchaser Schedule attached thereto, as it may be amended, restated, extended, supplemented or otherwise modified in writing from time to
time.
“ Company Note Agreement Two ” means that certain Second Amended and Restated Note Purchase Agreement dated as of
January 30, 2017, by and among the Company, the Guarantors and each purchaser named on the Purchaser Schedule attached thereto, as it may be amended, restated, extended, supplemented or otherwise modified in writing from time to time.
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit C .
11
“ Conforming Changes ” means, with respect to the use, administration of or
any conventions associated with SOFR or any proposed Successor Rate or Term SOFR, as applicable, any conforming changes to the definitions of “Base Rate”, “SOFR”, “Term SOFR”, “SOFR Daily Floating
Rate” and “Interest Period”, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of
“Business Day” and “U.S. Government Securities Business Day”, timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of the
Administrative Agent, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative
Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as the Administrative Agent
determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document).
“ 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.
“ Consolidated Adjusted EBITDA ” means, for any period, for the
Company and the Restricted Subsidiaries on a consolidated basis, the sum of the following, without duplication, (a) Consolidated Net Earnings, plus (b) the following to the extent deducted in calculating such Consolidated Net
Earnings (without duplication): (i) Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation expense and amortization expense, (iv) non-recurring costs, cash expenses and
fees in connection with any Permitted Acquisition incurred during such period, (v) unusual or non-recurring losses, charges and expenses incurred during such period and
(vi) non-cash charges and losses (excluding any such non-cash charges or losses to the extent (A) there were cash charges with respect to such charges and
losses in past accounting periods or (B) there is a reasonable expectation that there will be cash charges with respect to such charges and losses in future accounting periods), plus (c) the amount of cost synergies, cost savings,
and operating expense reductions (net of actual amounts realized) that are reasonably identifiable and factually supportable (in the good faith determination of the Company, as certified by the Company in the Compliance Certificate delivered by the
Company for such period) related to any Investment (including any Permitted Acquisition), Disposition, restructuring or cost savings initiatives that are expected to be realized within twenty-four (24) months after the consummation of such
transaction or initiative, in each case net of the amount of actual benefits realized during such period from such transaction or initiative, provided that projected amounts (that are not yet realized) may no longer be added in calculating
Consolidated Adjusted EBITDA to the extent occurring more than twenty-four (24) calendar months after the consummation of the applicable transaction, less (d) without duplication and to the extent reflected as a gain or otherwise
included in the calculation of Consolidated Net Earnings for such period, (i) non-cash gains (excluding any such non-cash gains to the extent (A) there were
cash gains with respect to such gains in past accounting periods or (B) there is a reasonable expectation that there will be cash gains with respect to such gains in future accounting periods) and (ii) Consolidated Interest Income.
Notwithstanding the foregoing, the aggregate amount added to Consolidated Adjusted EBITDA for any period pursuant to clauses (b)(iv), (b)(v)
and (c) above shall not exceed fifteen percent (15%) of Consolidated Adjusted EBITDA for such period (calculated prior to giving effect to clauses (b)(iv), (b)(v) and (c)). For the avoidance of doubt, the Company shall provide detail sufficient
to the Administrative Agent with respect to any amounts added back pursuant to clauses (b)(iv), (b)(v) and (c).
“ Consolidated
Capitalized Interest ” means, for any period, for the Company and the Restricted Subsidiaries on a consolidated basis, the aggregate amount of Consolidated Interest Expense, determined in accordance with GAAP for such period, that has been
capitalized on the balance sheet of such Person during such period.
“ Consolidated Debt ” means, on any date, without
duplication, the aggregate amount of (i) all Indebtedness of the Company and the Restricted Subsidiaries of the types described in clauses (a) through (e) of the definition
12
of Indebtedness, specifically excluding, however, all obligations (whether direct or contingent) of the Company and the Restricted Subsidiaries arising under Performance Bonds maturing on demand
or within one year from the date of the creation thereof, (ii) all Guarantees of the Company and the Restricted Subsidiaries in respect of any of the foregoing, and (iii) all modifications, renewals and extensions of the above, all
determined in accordance with GAAP.
“ Consolidated Fixed Charge Coverage Ratio ” means, as of any date of determination
for the most recently completed four (4) fiscal quarters of the Company, the ratio of (a) Consolidated Adjusted EBITDA to (b) the sum of (i) all regularly scheduled principal payments on Consolidated Debt required to be
made by the Company and the Restricted Subsidiaries within one year of the date of determination plus (ii) Consolidated Interest Expense for such period, plus (ii) Consolidated Capitalized Interest for such period.
“ Consolidated Interest Expense ” means, for any period, for the Company and the Restricted Subsidiaries on a consolidated
basis, the aggregate amount of interest expense as determined in accordance with GAAP. Notwithstanding the foregoing, specific items of interest expense shall only be included in this definition to the extent such items have been deducted from gross
revenues in calculating Consolidated Net Earnings for such Person for such period.
“ Consolidated Interest Income ”
means, for any period, for the Company and the Restricted Subsidiaries on a consolidated basis, the aggregate amount of interest income as determined in accordance with GAAP, including, without duplication, interest associated with any Capital
Construction Fund, and all other types of interest income on debt securities.
“ Consolidated Net Earnings ” means, for
any period, for the Company and the Restricted Subsidiaries on a consolidated basis, the net earnings of such Person for such period determined in accordance with GAAP for such period. For the avoidance of doubt, cash dividends and other
distributions actually distributed to the Company or any Restricted Subsidiary by any Unrestricted Subsidiary during such period, net of any permitted Investment in, or Disposition to, any Unrestricted Subsidiary made during such period that is not
in the ordinary course of business (provided that if such amount as so determined would be less than zero, such amount shall be deemed to be zero), shall be included in Consolidated Net Earnings (and in the case of a dividend or other distribution
to a Restricted Subsidiary, such Restricted Subsidiary is not precluded from further distributing such amount to the Company by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Restricted
Subsidiary during such period); provided , that, such cash dividend or distribution shall not be included to the extent such dividend or distribution requires that it be repaid to an Unrestricted Subsidiary at a future date.
“ Consolidated Net Leverage Ratio ” means, as of any date of determination, the ratio of (a) the difference of
(i) Consolidated Debt as of such date less (ii) the Title XI Fund Amount as of such date less (iii) the Cash Collateral Fund Amount as of such date less (iv) the Unrestricted Cash Amount as of such date to
(b) Consolidated Adjusted EBITDA for the most recently completed four (4) fiscal quarters of the Company.
“ Consolidated Revenues ” means, for any period, for the Company and its Restricted Subsidiaries on a consolidated basis, the
aggregate net revenues of such Persons determined in accordance with GAAP.
“ Consolidated Stockholder’s Equity ”
means, as of any date of determination, for the Company and all Subsidiaries on a consolidated basis, total equity less non-controlling interests determined in accordance with GAAP.
“ Consolidated Tangible Assets ” means, as of any date of determination, with respect to the Company and its Restricted
Subsidiaries, the aggregate amount of assets as of such date (determined on a consolidated basis and in accordance with GAAP) after deducting therefrom all goodwill, trade names, trademarks, patents, licenses, unamortized debt discount and expense,
treasury stock and other like intangibles (in each case, determined on a consolidated basis and in accordance with GAAP).
13
“ Consolidated Total Assets ” means, as of any date of determination, for
the Company and the Restricted Subsidiaries on a consolidated basis, the aggregate value of the total assets of such Persons (including leaseholds and leasehold improvements and reserves against assets but excluding monies due from Affiliates,
officers, directors, employees, shareholders, members or managers of such Persons).
“ Contractual Obligation ” means, as
to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“ Covered Entity ” means any of the following: (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).
“ Credit Extension ” means each of the following:
(a) a Borrowing and (b) an L/C Credit Extension.
“ Daily Simple SOFR ” with respect to any applicable
determination date means the SOFR published on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
“ Default Rate ” means (a) with respect to any Obligation
for which a rate is specified, a rate per annum equal to two percent (2%) in excess of the rate otherwise applicable thereto and (b) with respect to any Obligation for which a rate is not specified or available, a rate per annum equal to the
Base Rate plus the Applicable Rate for Base Rate Loans plus two percent (2%), in each case, to the fullest extent permitted by applicable law.
“ 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, subject to
Section 2.18(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the
Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be
specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of
its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to
comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such
Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
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failed, within three Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its
prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or
has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become
the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect
parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of
attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.18(b) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Company, the L/C Issuer, the Swing Line
Lender and each other Lender promptly following such determination.
“ Delayed Draw A-1
Availability Period ” means the period from and including the Closing Date to the earliest of (i) May 21, 2025, (ii) the date of termination of the Delayed Draw A-1 Commitments pursuant to
Section 2.07 , and (iii) the date of termination of the commitment of each Delayed Draw A-1 Lender to make Delayed Draw Term A-1 Loans
pursuant to Section 8.02
“ Delayed Draw A-1
Borrowing ” means a borrowing consisting of simultaneous Delayed Draw Term A-1 Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Delayed
Draw A-1 Lenders pursuant to Section 2.01(a) .
“ Delayed Draw A-1 Commitment ” means, as to each Delayed Draw A-1 Lender, its obligation to make Delayed Draw Term A-1 Loans to the Company
pursuant to Section 2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Delayed Draw A-1 Lender’s name on
Schedule 2.01 , as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate principal amount of the Delayed Draw A-1 Commitments as of the Closing Date is
$400,000,000.
“ Delayed Draw A-1 Facility ” means (a) at any time during
the Delayed Draw A-1 Availability Period, the aggregate amount of the Delayed Draw A-1 Commitments at such time and (b) at any time thereafter, the aggregate
principal amount of the Delayed Draw Term A-1 Loans of all Delayed Draw A-1 Lenders outstanding at such time, and shall include any Incremental Term Facility increasing
the Delayed Draw A-1 Facility.
“ Delayed Draw A-1
Lender ” means (a) at any time during the Delayed Draw A-1 Availability Period, any Lender that has a Delayed Draw A-1 Commitment at such time and
(b) at any time thereafter, any Lender that holds Delayed Draw Term A-1 Loans at such time.
“ Delayed Draw Term A-1 Loan ” means an advance made by any Delayed Draw A-1 Lender under the Delayed Draw A-1 Facility.
“ Delayed Draw Term A-1 Loan Note ” means a promissory note made by the Company in
favor of a Delayed Draw A-1 Lender evidencing Delayed Draw Term A-1 Loans made by such Delayed Draw A-1 Lender, substantially in
the form of Exhibit B-1 .
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“ Delayed Draw A-2 Availability
Period ” means the period from and including the Closing Date to the earliest of (i) November 21, 2024, (ii) the date on which any Noteholder Documents are executed and become effective, (iii) the date of termination of the
Delayed Draw A-2 Commitments pursuant to Section 2.07 , and (iv) the date of termination of the commitment of each Delayed Draw A-2 Lender
to make Delayed Draw Term A-2 Loans pursuant to Section 8.02
“ Delayed Draw A-2 Borrowing ” means a borrowing consisting of simultaneous Delayed
Draw Term A-2 Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Delayed Draw A-2 Lenders pursuant to
Section 2.01(b) .
“ Delayed Draw A-2 Commitment ”
means, as to each Delayed Draw A-2 Lender, its obligation to make Delayed Draw Term A-2 Loans to the Company pursuant to Section 2.01(b) in an
aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Delayed Draw A-2 Lender’s name on Schedule 2.01 , as such amount may be adjusted from time to
time in accordance with this Agreement. The aggregate principal amount of the Delayed Draw A-2 Commitments as of the Closing Date is $180,000,000.
“ Delayed Draw A-2 Facility ” means (a) at any time during the Delayed Draw A-2 Availability Period, the aggregate amount of the Delayed Draw A-2 Commitments at such time and (b) at any time thereafter, the aggregate principal amount of the
Delayed Draw Term A-2 Loans of all Delayed Draw A-2 Lenders outstanding at such time, and shall include any Incremental Term Facility increasing the Delayed Draw A-2 Facility.
“ Delayed Draw A-2 Lender ”
means (a) at any time during the Delayed Draw A-2 Availability Period, any Lender that has a Delayed Draw A-2 Commitment at such time and (b) at any time
thereafter, any Lender that holds Delayed Draw Term A-2 Loans at such time.
“ Delayed
Draw Term A-2 Loan ” means an advance made by any Delayed Draw A-2 Lender under the Delayed Draw A-2 Facility.
“ Delayed Draw Term A-2 Loan Note ” means a promissory note made by the Company in
favor of a Delayed Draw A-2 Lender evidencing Delayed Draw Term A-2 Loans made by such Delayed Draw A-2 Lender, substantially in
the form of Exhibit B-2 .
“ Designated Borrower ” has the meaning
specified in the introductory paragraph hereto.
“ Designated Borrower Notice ” has the meaning specified in
Section 2.15 .
“ Designated Borrower Request and Assumption Agreement ” has the meaning
specified in Section 2.15 .
“ Designated Borrower Sublimit ” means an amount equal to the
lesser of the Aggregate Revolving Commitments and $50,000,000. The Designated Borrower Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“ Designated Jurisdiction ” means any country or territory to the extent that such country or territory is the subject of any
Sanction (as of the Closing Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, the Kherson Region of Ukraine, the Zaporizhzhia
Region of Ukraine, Cuba, Iran, North Korea and Syria).
“ Disposition ” or “ Dispose ” means the sale,
transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property (other than cash) by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“ Dollar ” and “ $ ” mean lawful money of the United States.
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“ EEA Financial Institution ” means (a) any credit institution or
investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of
this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any Person entrusted with public administrative
authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Electronic Copy ” has the meaning specified in Section 11.17 .
“ Electronic Record ” and “ Electronic Signature ” shall have the meanings assigned to them, respectively,
by 15 USC §7006, as it may be amended from time to time.
“ Eligible Assignee ” means any Person that meets the
requirements to be an assignee under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii) ).
“ Environment ” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface
strata, and natural resources such as wetland, flora and fauna.
“ Environmental Laws ” means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to
exposure to Hazardous Materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release threat of Release of Hazardous Materials.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Environmental Permit ” means any permit, approval, identification number, license or other authorization required under any
Environmental Law.
“ Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or
other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
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“ ERISA Affiliate ” means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or
any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity 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 ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent; (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 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any
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; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) 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 ERISA Affiliate; or (i) a failure by the Company or any ERISA Affiliate to meet all applicable requirements under the Pension
Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Company or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.
“ 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.
“ Event of Default ” has the meaning specified in Section 8.01 .
“ Event of Loss ” means, with respect to any property, any of the following: (a) any loss, destruction or damage of such
property; (b) any pending or threatened institution of any proceedings for the condemnation or seizure of such property or for the exercise of any right of eminent domain; or (c) any actual condemnation, seizure or taking, by exercise of
the power of eminent domain or otherwise, of such property, or confiscation of such property or the requisition of the use of such property.
“ Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a
portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of
the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the
Commodity Exchange Act (determined after giving effect to Section 10.13 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s
Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this
definition.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to any 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 Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes,
(b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment
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pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under
Section 11.13 ) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01) , amounts with respect to such Taxes were payable either to such
Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with
Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“ Existing Credit
Agreement ” means that certain Sixth Amended and Restated Credit Agreement, dated as of January 30, 2017 (as amended, restated, supplemented or otherwise modified from time to time) among the Company, the other borrowers party thereto, the
guarantors party thereto, the lenders party thereto, and Bank of America, N.A., as administrative agent.
“ Existing Letters of
Credit ” means those certain letters of credit set forth on Schedule 1.01 .
“ Existing Noteholder
Documents ” means, collectively, the following:
(a) Company Note Agreement One; and
(b) Company Note Agreement Two;
and each other document, instrument or agreement from time to time executed by any Loan Party or any Responsible Officer and delivered in connection with any
of the foregoing, as any thereof may be amended, restated, extended, supplemented or otherwise modified in writing from time to time.
“ Facility ” means the Delayed Draw A-1 Facility, the Delayed Draw A-2 Facility or the Revolving Credit Facility, as the context may require, and shall include any Incremental Facility Loans.
“ Facility Termination Date ” means the date as of which all of the following shall have occurred: (a) all Commitments
have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with
respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall have been made).
“ FASB ASC ” means
the Accounting Standards Codification of the Financial Accounting Standards Board.
“ FATCA ” means Sections 1471 through
1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially 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)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and
implementing such Sections of the Code.
“ Federal Funds Rate ” means, for any day, the rate per annum calculated by the
Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and
published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for
purposes of this Agreement.
“ Fee Letter ” means the letter agreement, dated May 21, 2024, among the Company and BAS.
“ Foreign Lender ” means (a) if the applicable Borrower is a U.S. Person, a Lender that is not a U.S. Person, and
(b) if the applicable Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a
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jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
“ FRB ” means the Board of Governors of the Federal Reserve System of the
United States.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the L/C
Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied. For the avoidance of doubt, this definition of GAAP includes the basis upon which the Company and the
Restricted Subsidiaries are presented on a consolidated basis in the footnotes to the Audited Financial Statements.
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the European Union or the European Central Bank).
“ Guarantee ” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person,
direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided , however , that the term
“Guarantee” shall not include (a) endorsements of instruments for deposit or collection in the ordinary course of business or (b) any hold harmless or other agreement having the economic effect of guarantying the collectability
of the receivables of any Subsidiary, from time to time deposited (or with respect to which interests therein are from time to time deposited) into a Capital Construction Fund. The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
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“ Guaranteed Cash Management Agreement ” means any Cash Management
Agreement between any Loan Party and any of its Restricted Subsidiaries and any Cash Management Bank.
“ Guaranteed Hedge
Agreement ” means any interest rate, currency, foreign exchange, or commodity Swap Contract not prohibited under Article VI or VII between any Loan Party and any of its Restricted Subsidiaries and any Hedge Bank.
“ Guaranteed Obligations ” means all Obligations and all Additional Guaranteed Obligations.
“ Guaranteed Party Designation Notice ” means a notice from any Lender or an Affiliate of a Lender substantially in the form
of Exhibit I .
“ Guarantors ” means, collectively, (a) the Subsidiaries of the Company identified as a
“Guarantor” on the signature pages hereto and as may from time to time become parties to this Agreement pursuant to Section 6.12 , and (b) with respect to Additional Guaranteed Obligations owing by any Loan
Party or any of its Restricted Subsidiaries and any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 10.01 and 10.13 ) under the Guaranty, each Borrower.
“ Guaranty ” means the Guaranty made by the Guarantors under Article X in favor of the Administrative Agent, the
Lenders and the L/C Issuer.
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants including petroleum or petroleum distillates, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or
medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.
“ Hedge Bank ” means any Person in its capacity as a party to a Swap Contract that, (a) at the time it enters into a
Swap Contract not prohibited under Articles VI or VII , is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Swap Contract not prohibited under Articles VI or
VII , in each case, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided , in the case of a Guaranteed Hedge Agreement with a Person
who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Guaranteed Hedge Agreement and provided further that for
any of the foregoing to be included as a “Guaranteed Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent)
must have delivered a Guaranteed Party Designation Notice to the Administrative Agent prior to such date of determination.
“ Incremental Amount ” means, as of any date of determination, the sum of (a) $400,000,000 minus (b) the
aggregate amount of Incremental Term Facilities and/or Incremental Revolving Commitments incurred in reliance on clause (a) above prior to such date pursuant to Section 2.16 plus (c) an unlimited
amount so long as, in the case of this clause (c) , immediately after giving pro forma effect to the applicable increase in the Incremental Term Facility and/or Incremental Revolving Commitments and the use of proceeds therefrom (and any
related Acquisitions, other Investments or other transactions in connection therewith), the Consolidated Net Leverage Ratio does not exceed 3.50 to 1.00 (assuming for the purpose of calculating the Consolidated Net Leverage Ratio pursuant to this
definition, (i) such increase of the Incremental Revolving Commitments and/or Incremental Term Facility shall be deemed to be fully drawn and (ii) the cash proceeds of such Incremental Revolving Commitments and/or Incremental Term Facility
or any other simultaneous incurrence of Indebtedness shall not be netted from Consolidated Debt) minus (d) the aggregate amount of any Incremental Equivalent Debt incurred prior to such date.
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“ Incremental Equivalent Debt ” means any unsecured (senior or
subordinated) notes issued in lieu of Incremental Revolving Commitments or Incremental Term Loans; provided , that , (a) if secured, such Incremental Equivalent Debt shall be subject to an intercreditor agreement on terms reasonably
satisfactory to the Administrative Agent and the Company, (b) if subordinated, such Incremental Equivalent Debt shall be subject to a subordination agreement (or other subordination provisions in lieu thereof) on terms reasonably satisfactory
to the Administrative Agent and the Company, (c) no Default or Event of Default shall have occurred and be continuing at the time any such Incremental Equivalent Debt is incurred, (d) Incremental Equivalent Debt shall not mature prior to
the Maturity Date, or have mandatory prepayment provisions (other than related to customary asset sale, similar events and change of control offers) that would result in mandatory prepayment of such Incremental Equivalent Debt prior to the Maturity
Date (it being understood that any Incremental Equivalent Debt may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any applicable mandatory prepayments hereunder), (e) the yield applicable to
any Incremental Equivalent Debt will be determined by the Company and the lenders thereunder, (f) there shall be no obligors in respect of any Incremental Equivalent Debt that are not Loan Parties, and (g) the other material terms and
conditions of such Incremental Equivalent Debt are (taken as a whole) no more favorable to the lenders providing such Incremental Equivalent Debt than those contained in the Loan Documents (taken as a whole) except for terms and provisions
reasonably satisfactory to the Administrative Agent or those that are incorporated via an amendment into this Agreement solely with the consent of the Administrative Agent, such consent not to be unreasonably withheld (it being understood, for the
avoidance of doubt, that such amendment shall not require the consent of any Lender).
“ Incremental Facility Amendment ”
has the meaning specified in Section 2.16 .
“ Incremental Facility Loans ” has the meaning
specified in Section 2.16 .
“ Incremental Request ” has the meaning specified in
Section 2.16 .
“ Incremental Revolving Commitments ” has the meaning specified in
Section 2.16 .
“ Incremental Revolving Credit Loans ” has the meaning specified in
Section 2.16 .
“ Incremental Term Facility ” has the meaning specified in
Section 2.16 .
“ Incremental Term Loans ” has the meaning specified in
Section 2.16 .
“ Incremental Tranche A Term Loan ” has the meaning specified in
Section 2.16 .
“ Incremental Tranche B Term Loan ” has the meaning specified in
Section 2.16 .
“ Indebtedness ” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including
standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c) all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and not past due for more than 90 days after the date on which such trade account was due and
payable);
(d) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
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(e) all Attributable Indebtedness in respect of Capitalized Leases and
Synthetic Lease Obligations of such Person and all Synthetic Debt of such Person;
(f) net obligations of such Person under
any Swap Contract;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture
(other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to
such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.
“ 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 (a), Other Taxes.
“ Indemnitees ” has the meaning specified in Section 11.04(b) .
“ Information ” has the meaning specified in Section 11.07 .
“ Interest Payment Date ” means, (a) as to any Term SOFR Loan, the last day of each Interest Period applicable to such
Loan and the Maturity Date of the Facility under which such Loan was made; provided , however , that if any Interest Period for a Term SOFR Loan exceeds three months, the respective dates that fall every three months after the beginning
of such Interest Period shall also be Interest Payment Dates; (b) as to any SOFR Daily Floating Rate Loan, the first Business Day of each month and the Maturity Date of the Facility under which such Loan was made; and (c) as to any Base
Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for
purposes of this definition).
“ Interest Period ” means, as to each Term SOFR Loan, the period commencing on the date
such Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date one (1) or three (3) months thereafter (in each case, subject to availability), as selected by the Company in its Committed Loan
Notice; provided that:
(a) any Interest Period that would otherwise end on a day that is not a Business Day shall
be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of
(a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any
23
other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a Business Unit. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“ IP Rights ” has the meaning specified in Section 5.18 .
“ IRS ” means the United States Internal Revenue Service.
“ ISP ” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later
version thereof as may be in effect at the applicable time).
“ Issuer Documents ” means with respect to any Letter of
Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Company (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
“ Latest Maturity Date ” means the latest of the Maturity Date for the Revolving Credit Facility, the Maturity Date for the
Delayed Draw A-1 Facility and the Maturity Date for the Delayed Draw A-2 Facility, as of any date of determination.
“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“ L/C Advance ” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Applicable Percentage.
“ L/C Borrowing ” means an extension of credit resulting
from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date
thereof, or the increase of the amount thereof.
“ L/C Issuer ” means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
“ L/C Obligations ” means, as at
any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“ Lender ” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person
that becomes a “Lender” in accordance with this Agreement and, their successors and assigns and, unless the context requires otherwise, includes the Swing Line Lender.
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“ Lender Parties ” and “ Lender Recipient Parties ” mean
collectively, the Lenders, the Swing Line Lender and the L/C Issuer.
“ Lending Office ” means, as to the Administrative
Agent, the L/C Issuer or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Company and the
Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“ Letter of Credit ” means any letter of credit issued hereunder, providing for the payment of cash upon the honoring of a
presentation thereunder and shall include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in
the form from time to time in use by the L/C Issuer.
“ Letter of Credit Expiration Date ” means the day that is seven
days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
“ Letter of Credit Fee ” has the meaning specified in Section 2.03(h) .
“ Letter of Credit Sublimit ” means an amount equal to $75,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Revolving Credit Facility.
“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction) or any other type of preference, priority or preferential arrangement that creates an interest in
property for the purpose, or having the effect, of protecting a creditor against loss or securing the payment or performance of an obligation, and including the interest of a purchaser of accounts receivable.
“ Loan ” means an extension of credit by a Lender to a Borrower under Article II in the form of a Delayed Draw Term A-1 Loan, a Delayed Draw Term A-2 Loan, a Revolving Credit Loan or a Swing Line Loan, and shall include, as the context requires, any Incremental Facility Loan.
“ Loan Documents ” means this Agreement, each Designated Borrower Request and Assumption Agreement, each Additional Guarantor
Joinder Agreement, each Note, each Issuer Document, the Fee Letter, each Incremental Facility Amendment, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.17 of this
Agreement and each other document, instrument or agreement from time to time executed by any Loan Party or any Responsible Officer and delivered in connection with this Agreement.
“ Loan Parties ” means, collectively, the Company, each Guarantor and each Designated Borrower.
“ MARAD ” shall mean the United States, represented by the Maritime Administrator.
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, on the business,
financial condition or operations of the Company and its Restricted Subsidiaries taken as a whole; (b) a material impairment of the ability of the Borrowers and the Guarantors to perform their obligations under the Loan Documents; or (c) a
material adverse effect on the rights and remedies of the Lenders or the Administrative Agent under the Loan Documents.
“ Material Subsidiary ” means each Subsidiary of the Borrower that is (a) a Designated Borrower, (b) a Guarantor,
or (c) any other Restricted Subsidiary that (i) accounts or accounted for 10% or more of Consolidated
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Adjusted EBITDA and/or (ii) owned 10% or more of the Consolidated Total Assets, in each case, as of the last day of the most recent period of four consecutive fiscal quarters of the Borrower
for which financial statements have been delivered pursuant to Section 6.01 or as of the end of either of the two most recently ended fiscal years of the Company; provided , that , if as of the last day of the
most recent fiscal period for which financial statements have been delivered pursuant to Section 6.01, (A) the Consolidated Adjusted EBITDA of all Restricted Subsidiaries that are not Material Subsidiaries hereunder shall
have exceeded 15% of the Consolidated Adjusted EBITDA of the Company and its Restricted Subsidiaries, or (B) the total Consolidated Total Assets attributable to all Restricted Subsidiaries that are not Material Subsidiaries hereunder shall have
exceeded 15% of the Consolidated Total Assets, in each case, for the most recent four-quarter period for which financial statements have been delivered pursuant to Section 6.01 , then the Borrower shall, within forty-five
(45) days of the delivery of such financial statements, designate one or more of such Restricted Subsidiaries that are not Material Subsidiaries to be deemed Material Subsidiaries, until such excess shall have been eliminated.
“ Maturity Date ” means (a) with respect to the Revolving Credit Facility and the Delayed Draw A-1 Facility, May 21, 2029 and (b) with respect to the Delayed Draw A-2 Facility, the earlier of (i) November 21, 2024 and (ii) the date on which the date
on which any Noteholder Documents are executed and become effective; provided , however , that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit
account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time,
(ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 100% of the
Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which
the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“ Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including the Company or any ERISA
Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“ Net
Proceeds ” means (a) as to any Disposition by a Person, proceeds in cash, checks or other cash equivalent financial instruments as and when received by such Person, net of: (i) the direct costs relating to such Disposition
excluding amounts payable to such Person or any Affiliate of such Person and (ii) sale, use or other transaction taxes paid or payable by such Person as a direct result thereof and (b) as to any Event of Loss, proceeds paid to a Person on
account of such Event of Loss, net of (i) all of the costs and expenses reasonably incurred in connection with the collection of such proceeds, award or other payments, and (ii) any amounts retained by or paid to parties having superior
rights to such proceeds, awards or other payments. “ Net Proceeds ” shall not include proceeds paid to a Person on account of any Event of Loss if and to the extent that such proceeds (x) are required by a Contractual
Obligation of such Person with MARAD or applicable Law to be deposited in a Capital Construction Fund of such Person and (y) such proceeds are actually deposited by such Person in such Capital Construction Fund when no Event of Default has
occurred and is continuing.
“ Non-Consenting Lender ” means any Lender that does
not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (ii) has been approved by the Required Lenders.
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a
Defaulting Lender at such time.
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“ Note ” means a Delayed Draw A-1
Loan Term Note, Delayed Draw A-2 Loan Term Note or a Revolving Credit Note, as the context may require.
“ Noteholder Documents ” means, each note purchase agreement executed by any Loan Party and each other document, instrument
or agreement from time to time executed by such Loan Party or any Responsible Officer and delivered in connection with such note purchase agreement, as any thereof may be amended, restated, extended, supplemented or otherwise modified in writing
from time to time.
“ Noteholders ” means collectively, each holder of a note issued under a Noteholder Document
described in the definition of the Noteholder Documents.
“ Notice of Loan Prepayment ” means a notice of prepayment with
respect to a Loan, which shall be substantially in the form of Exhibit J or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by
the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
“ NPL ” means the
National Priorities List under CERCLA.
“ Obligations ” means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, or Letter of Credit, and all costs and expenses incurred in connection with enforcement and collection of the foregoing, including the
fees, charges and disbursements of counsel, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, expenses and fees
that accrue after the commencement by or against any Loan Party or any Affiliate thereof pursuant to any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, expenses and
fees are allowed claims in such proceeding; provided that, without limiting the foregoing, the Obligations of a Loan Party shall exclude any Excluded Swap Obligations with respect to such Loan Party.
“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and
the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or
organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.
“ OSG Acquisition ” means the Company’s acquisition of 100% of the
issued and outstanding Equity Interests of Overseas Shipholdings Group, Inc., a Delaware corporation, that are not owned by the Company as of the Closing Date.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection
between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a
security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery, performance, enforcement
27
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 3.06 ).
“ Other Term
Loans ” has the meaning specified in Section 2.16 .
“ Outstanding Amount ” means
(a) with respect to Delayed Draw Term A-1 Loans, Delayed Draw Term A-2 Loans, Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of Delayed Draw Term A-1 Loans, Delayed Draw Term A-2 Loans, Revolving
Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on
such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
“ Participant ” has the meaning specified in Section 11.06(d) .
“ Participant Register ” has the meaning specified in Section 11.06(d ).
“ Patriot Act ” has the meaning specified in Section 11.20 .
“ PBGC ” means the Pension Benefit Guaranty Corporation.
“ Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any
installment payment thereof) to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
“ Pension Plan ” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is
maintained or is contributed to by the Company and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“ Performance Bonds ” means all surety bonds, performance bonds, bid bonds, appeal bonds, completion guarantees, notary bonds
and similar instruments issued for the account of the Company or any Restricted Subsidiary to secure the performance of obligations of the Company or any Subsidiary (or to the extent issued in the ordinary course of business, any other Person) under
any contract entered into in the ordinary course of business.
“ Permitted Acquisition ” means Investments consisting of
an Acquisition by the Company or any Material Subsidiary; provided that:
(a) the representations and warranties
made by the Loan Parties in any Loan Document shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct on and as of the date of such Acquisition (after giving effect thereto) and
(ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects on and as of the date of such Acquisition (after giving effect thereto), except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this clause (a), the representations and
warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.01 and the representations and warranties contained in Section 5.13(a) shall be deemed to refer to Schedule 5.13 as supplemented by each of the reports furnished pursuant to
Section 6.02(g) ;
(b) no Default or Event of Default shall then exist or would exist after giving
effect to such Acquisition;
28
(c) in the case of an Acquisition of the Capital Stock of another Person,
the board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition,
(d) after giving effect to such Acquisition, (i) the Company will be in pro forma compliance with the
financial covenants set forth in Section 7.12 and (ii) the Consolidated Net Leverage Ratio shall be at least 0.25x less than the then permitted Consolidated Net Leverage Ratio set forth in
Section 7.12(a) (giving effect to any Adjustment Period, if applicable), in each case, with each financial covenant recomputed as at the last day of the most recently ended fiscal quarter of the Company for which financial
statements were required to be delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such Acquisition had been consummated as of the first day of the four fiscal
quarter period preceding the date of such financial statements;
(e) if such Acquisition is structured as a merger, the
Company (or if such merger is with any Restricted Subsidiary, then such Restricted Subsidiary) shall be the surviving Person after giving effect to such merger; and
(f) if the consideration for such Acquisition (including assumed liabilities, earnout payments and any other deferred payment)
exceeds $50,000,000, the Company shall have delivered to the Administrative Agent, a certificate of a Responsible Officer of the Company certifying as to the compliance with the conditions set forth in this definition (including detailed financial
covenant calculations) not less than five Business Days prior to the consummation of such Acquisition; provided, that, the Company shall deliver such certificate for the OSG Acquisition regardless of the amount of consideration paid.
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
“ Plan ” means any employee benefit plan within the meaning of
Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or any ERISA Affiliate or any such Plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“ Platform ” has the meaning specified in Section 6.02 .
“ Principal Shareholders ” means, collectively (a) Michael Garvey, Lynn Garvey or any of their lineal descendants
(including by adoption) and/or (b) any trust or similar entity all of the beneficiaries of which, or a corporation, partnership or limited liability company, all of the stockholders, limited and general partners or members of which, are any of
the Persons identified in the foregoing clause (a).
“ Priority Debt ” means, at any time of determination thereof and
without duplication, (a) Indebtedness of the Company secured by any Lien (including, without limitation, all Title XI Debt, whether full recourse or limited recourse) and (b) all Indebtedness or Restricted Subsidiaries secured by any Lien
(including, without limitation, all Title XI Debt, whether full recourse or limited recourse) and, without duplication, all unsecured Indebtedness of Restricted Subsidiaries of the Company (other than unsecured Indebtedness of Designated Borrowers
and Guarantors); provided , however , that Priority Debt shall not include (i) Indebtedness of Unrestricted Subsidiaries, (ii) Indebtedness owing from any Subsidiary to the Company or any other Subsidiary, (iii) any of the
Obligations, or (iv) any of the obligations of the Company or any Restricted Subsidiary under the Noteholder Documents and Guarantees in respect thereof, so long as the obligations under the Noteholder Documents are unsecured; provided
further , for purposes of clarification, the obligations of the Company and its Restricted Subsidiaries under any Noteholder Documents and Guarantees in respect thereof shall not constitute Priority Debt solely as a result of such obligations
being secured (without the Obligations being equally and ratably secured) by cash collateral in an amount for each such Noteholder Document not to exceed the amount of Cash Collateral at such time being provided by the Company and its Subsidiaries
pursuant to Section 2.17 .
“ PTE ” means a prohibited transaction class exemption issued by the
U.S. Department of Labor, as any such exemption may be amended from time to time.
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“ Public Lender ” has the meaning specified in
Section 6.02 .
“ QFC ” has the meaning assigned to the term “qualified financial
contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“ QFC Credit Support ” has the
meaning specified in Section 11.21 .
“ Qualified ECP Guarantor ” shall mean, at any time, each
Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract
participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
“ Recipient ” means the
Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
“ Register ” has the meaning specified in Section 11.06(c) .
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers,
employees, agents, trustees, administrators, managers, advisors, consultants, service providers and representatives of such Person and of such Person’s Affiliates.
“ Release ” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying,
injection or leaching into the Environment, or into, from or through any building, structure or facility.
“ Reportable
Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Delayed Draw Term A-1 Loans, Delayed Draw Term A-2 Loans or Revolving Credit Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application,
and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“ Required Lenders ” means, at any time,
Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders at such time. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time;
provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the
Lender that is the Swing Line Lender or the L/C Issuer, as the case may be, in making such determination; provided , further , that this definition is subject to Section 3.03 .
“ Rescindable Amount ” has the meaning as defined in Section 2.13(b)(ii) .
“ Resignation Effective Date ” has the meaning set forth in Section 9.06.
“ Resolution Authority ” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution
Authority.
“ Responsible Officer ” means the chief executive officer, president, chief financial officer, treasurer,
assistant treasurer or controller of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01(b ), the secretary or any assistant secretary of a Loan Party and, solely for
purposes of notices given pursuant to Article II , any other officer or employee of the applicable Loan Party so designated by
30
any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the
applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency
certificate and to the extent requested by the Administrative Agent, appropriate authorization documentation, in form and substance satisfactory to the Administrative Agent.
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect
to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption,
retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof),
or any option, warrant or other right to acquire any such dividend or other distribution or payment.
“ Restricted
Subsidiary ” means any Subsidiary other than an Unrestricted Subsidiary.
“ Revolving Credit Borrowing ” means a
borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Term SOFR Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(c) .
“ Revolving Credit Commitment ” means, as to each Revolving Credit Lender, its obligation to (a) make Revolving
Credit Loans to a Borrower pursuant to Section 2.01(c) , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes
a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. Revolving Credit Commitments shall include any Incremental Revolving Commitments.
“ Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount at such time of its
outstanding Revolving Credit Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
“ Revolving Credit Facility ” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving
Credit Commitments at such time.
“ Revolving Credit Lender ” means, at any time, (a) so long as any Revolving
Credit Commitment is in effect, any Lender that has a Revolving Credit Commitment at such time or (b) if the Revolving Credit Commitments have terminated or expired, any Lender that has a Revolving Credit Loan or a participation in L/C
Obligations or Swing Line Loans at such time.
“ Revolving Credit Loan ” has the meaning specified in
Section 2.01(c) .
“ Revolving Credit Note ” means a promissory note made by a Borrower in favor
of a Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Revolving Credit Lender, substantially in the form of Exhibit B-3 .
“ Sanction(s) ” means any sanction administered or enforced by the United States government (including, without limitation,
OFAC or the U.S. Department of State), the United Nations Security Council, the European Union (or any European Union member state), His Majesty’s Treasury or other relevant sanctions authority.
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“ Scheduled Unavailability Date ” has the meaning specified in
Section 3.03(b) .
“ Shareholder Subordinated Debt ” means Indebtedness of the Company that
satisfies the following criteria: (a) such Indebtedness is of a type described in clause (a) of the definition of Indebtedness in this Section; (b) such Indebtedness matures not earlier than the Maturity Date; (c) such
Indebtedness is owing to shareholders of the Company; and (d) the Company and the Principal Shareholders or other shareholders of the Company to whom such Indebtedness is owed have executed and delivered a subordination agreement in favor of
the Administrative Agent, the Lenders and the Noteholders in form and substance satisfactory to Required Lenders and the Majority Noteholders or any similar term, as defined in each Noteholder Document.
“ SOFR ” means the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York (or a successor
administrator).
“ SOFR Adjustment ” means 0.10% (10 basis points).
“ SOFR Daily Floating Rate ” means, for any day, a fluctuating rate of interest, which can change on each Business Day, equal
to the Term SOFR Screen Rate two (2) U.S. Government Securities Business Days prior to such day, with a term equivalent to one (1) month beginning on that date; provided , that , if the rate is not published prior to 11:00 a.m.
on such determination date then the SOFR Daily Floating Rate means such Term SOFR Screen Rate on the first (1 st ) U.S. Government Securities Business Day immediately prior thereto, in each case,
plus the SOFR Adjustment; provided , further , that , if the SOFR Daily Floating Rate shall be less than zero, such rate shall be deemed zero.
“ SOFR Daily Floating Rate Loan ” a Loan that bears interest at the SOFR Daily Floating Rate.
“ Solvent ” and “ Solvency ” mean, with respect to any Person on any date of determination, that on such
date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“ Specified Loan Party ” means any Loan Party that is not then an “eligible contract participant” under the
Commodity Exchange Act (determined prior to giving effect to Section 10.13 ).
“ Subsidiary ” of
a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which more than 50% of the Capital Stock having ordinary voting power for the election of directors, managing general partners or other
governing body (other than Capital Stock having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “ Subsidiary ” or to “ Subsidiaries ” shall refer to a Subsidiary or Subsidiaries of the Company.
“ Successor Rate ” has the meaning specified in Section 3.03(b) .
“ Supported QFC ” has the meaning specified in Section 11.21 .
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“ Swap Contract ” means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward
bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.
“ Swap Obligations ” means with respect to any Guarantor 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.
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“ Swing Line Account ” means a deposit account maintained by the Company with the Swing Line Lender as may be designated by
Company and the Swing Line Lender to the Administrative Agent from time to time.
“ Swing Line Borrowing ” means a
borrowing of a Swing Line Loan pursuant to Section 2.04 .
“ Swing Line Lender ” means Wells
Fargo, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“ Swing Line
Loan ” has the meaning specified in Section 2.04(a) .
“ Swing Line Loan Notice ” means
a notice of a Swing Line Borrowing pursuant to Section 2.04(b) .
“ Swing Line Rate ” means for
any day a fluctuating rate per annum equal to the rate of interest most recently announced within the Swing Line Lender at its principal office as its “prime rate,” with the understanding that the “prime rate” is one of the
Swing Line Lender’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its announcement in such internal
publication or publications as the Swing Line Lender may designate.
“ Swing Line Rules ” has the meaning specified in
Section 2.04(b) .
“ Swing Line Sublimit ” means an amount equal to the lesser of (a)
$30,000,000 and (b) the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
“ Synthetic Debt ” means, with respect to any Person as of any date of determination thereof, all obligations of such Person
in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds but are not otherwise included in the definition of “Indebtedness” or as a liability on the consolidated balance sheet
of such Person and its Subsidiaries in accordance with GAAP.
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“ Synthetic Lease Obligation ” means the monetary obligations of a Person
under Synthetic Leases under which such Person is party as lessee. For purposes of this definition, “Synthetic Lease” shall mean, at any time, any lease (including leases that may be terminated by the lessee at any time) of any property
(i) that is accounted for as an operating lease under GAAP, and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such
Person is the lessor.
“ Target Balance ” means, at any time, a Collected Balance of zero Dollars.
“ 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 or penalties applicable thereto.
“ Term SOFR ” means:
(a) for any Interest Period with respect to a Term SOFR Loan, the rate per annum equal to the Term SOFR Screen Rate two U.S.
Government Securities Business Days prior to the commencement of such Interest Period with a term equivalent to such Interest Period; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR
means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the Term SOFR Screen
Rate two U.S. Government Securities Business Days prior to such date with a term of one month commencing that day; provided that if the rate is not published prior to 11:00 a.m. on such determination date then Term SOFR means the Term SOFR
Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such term;
provided that if Term SOFR determined in accordance with either of the foregoing provisions (a) or (b) of this definition would
otherwise be less than zero, Term SOFR shall be deemed zero for purposes of this Agreement.
“ Term SOFR Loan ” means a
Loan that bears interest at a rate based on clause (a) of the definition of “Term SOFR”.
“ Term SOFR
Screen Rate ” means the forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to the Administrative Agent) and published on the applicable Reuters screen page (or such other commercially available
source providing such quotations as may be designated by the Administrative Agent from time to time).
“ Threshold
Amount ” means $25,000,000.
“ Title XI Fund Amount ” means, on any date, the aggregate amount of Investments
maintained in all Title XI Reserve Funds.
“ Title XI Debt ” means all Indebtedness of the Company or any Restricted
Subsidiary that is guaranteed by the United States pursuant to 46 USC Chapter 537.
“ Title XI Reserve Fund ” means, with
respect to any Person, a fund established by such Person pursuant to the terms of financing documents made or entered into or in effect between such Person and the United States in connection with Indebtedness of such Person that is guaranteed by
the United States pursuant to Chapter 537 of Title 46 of the United States Code, as amended.
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“ Total Credit Exposure ” means, as to any Lender at any time, the unused
Aggregate Revolving Commitments, the unused Delayed Draw A-1 Commitments, the unused Delayed Draw A-2 Commitments, the Revolving Credit Exposure, the Outstanding Amount
of all Delayed Draw Term A-1 Loans and the Outstanding Amount of all Delayed Draw Term A-2 Loans of such Lender at such time.
“ Total Revolving Credit Outstandings ” means the sum of (a) the Outstanding Amount of all Revolving Credit Loans
plus (b) the Outstanding Amoun