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tm2039399-1_sc13 - none - 2.281104s
SCHEDULE 13E-3
(RULE 13e-100)
RULE 13e-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
Cardtronics plc
(Name of the Issuer)
Catalyst Holdings Limited
Apollo Investment Fund IX, L.P.
Apollo Overseas Partners (Delaware 892) IX, L.P.,
Apollo Overseas Partners (Delaware) IX, L.P.
Apollo Overseas Partners IX, L.P.
Apollo Overseas Partners (Lux) IX, SCSP
Apollo Global Management, Inc.
Hudson Executive Capital LP
HEC Management GP LLC
HEC Master Fund LP
HEC SPV I LP
Douglas L. Braunstein
(Name of Persons Filing Statement)
Ordinary Shares, Par Value $0.01 Per Share
(Title of Class of Securities)
G1991C105
(CUSIP Number of Class of Securities)
c/o Apollo Management IX, L.P.
9 W. 57th Street, 43rd Floor
Attention: Robert Kalsow-Ramos, Partner
2050 W. Sam Houston Parkway South, Suite 1300
Attention: Aimie Killeen, General Counsel
Attention: Michael D. Pinnisi, General Counsel
(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and
Communications on Behalf of the Persons Filing Statement)
copy to:
Taurie M. Zeiter, Esq.
Brian Scrivani, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
Michael J. Aiello, Esq.
Jackie Cohen, Esq.
Weil, Gotshal & Manges LLP
Richard M. Brand, Esq.
Braden McCurrach, Esq.
Joanna Valentine, Esq.
Cadwalader, Wickersham & Taft LLP
This statement is filed in connection with (check the appropriate box):
The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934.
The filing of a registration statement under the Securities Act of 1933.
A tender offer.
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☒
Check the following box if the filing is a final amendment reporting the results of the transaction: ☐
Calculation of Filing Fee
Transaction Valuation(1)
Filing Fee(2)
Calculated solely for the purpose of determining the filing fee. The transaction value was calculated as follows: the sum of: (a) the product of (i) the sum of (A) 44,539,433 Shares issued and outstanding as of December 31, 2020, (B) 526,855 Shares with respect to outstanding awards of restricted stock units as of December 31, 2020 and (C) 2,030,938 Shares with respect to outstanding awards of performance-based restricted stock units as of December 31, 2020, multiplied by (ii) $35.00 per Share and (b) the product of (i) 584,465 Shares subject to issuance upon exercise of outstanding options with exercise prices below $35.00, multiplied by (ii) $11.33 (which is the difference between $35.00 and the weighted average exercise price per Share of $23.67) as of December 31, 2020.
The filing fee was determined by multiplying the Transaction Valuation by .0001091
Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
 Amount Previously Paid: $180,563.22   Filing Party: Cardtronics plc
 Form or Registration No.: 14A   Date Filed: January 7, 2021
This Transaction Statement on Schedule 13E-3, together with the exhibits hereto (this "Schedule 13E-3"), is being filed with the Securities and Exchange Commission (the "SEC") pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act") jointly by Cardtronics plc, a public limited company incorporated in England and Wales ("Cardtronics" or the "Company"), Catalyst Holdings Limited, a private limited company incorporated in England and Wales ("BidCo"), Apollo Overseas Partners (Delaware 892) IX, L.P., a Delaware limited partnership ("Apollo 892"), Apollo Overseas Partners (Delaware) IX, L.P., a Delaware limited partnership ("Apollo Delaware"), Apollo Overseas Partners IX, L.P., a Cayman Islands limited partnership ("Apollo Overseas"), Apollo Overseas Partners (Lux) IX, SCSP, a special limited partnership formed under the laws of Luxembourg ("Apollo Lux"), Apollo Global Management, Inc., a Delaware corporation (together with Apollo 892, Apollo Delaware, Apollo Overseas and Apollo Lux, the "Apollo Parties"), Hudson Executive Capital LP, a Delaware limited partnership ("Hudson Executive"), HEC Management GP LLC, a Delaware limited liability company ("Management GP"), HEC Master Fund LP, a Cayman Islands exempted limited partnership ("HEC Master"), HEC SPV I LP, a Delaware limited partnership ("HEC SPV"), and Douglas L. Braunstein, a citizen of the United States of America (together with Hudson Executive, Management GP, HEC Master, and HEC SPV, the "HEC Parties" and, together with "Cardtronics", "BidCo" and the "Apollo Parties", the "Filing Persons").
On December 15, 2020, Cardtronics entered into an Acquisition Agreement, attached hereto as Exhibit (d)(1) (the "Acquisition Agreement"), with BidCo, pursuant to which BidCo agreed to acquire the Company by means of a court-sanctioned scheme of arrangement under Part 26 of the U.K. Companies Act of 2006 (the "Scheme") for $35.00 per share, subject to the terms and conditions of the Acquisition Agreement (the "Acquisition").
On December 15, 2020, BidCo, HEC Executive, HEC Master and HEC SPV entered into a rollover and contribution agreement, (the "Contribution Agreement"), pursuant to which HEC Executive, HEC Master and HEC SPV would cause an aggregate value of up to $200,000,000, which may be increased in limited circumstances (the "Rollover Amount") in cash and/or Shares owned by the HEC Parties at the option of the HEC Parties, to be contributed simultaneously with or following the effective date of the Acquisition to the indirect parent of BidCo ("Parent") in exchange for equity interests of Parent equal to the Rollover Amount, subject to the terms and conditions of the Contribution Agreement.
Concurrently with the filing of this Schedule 13E-3, Cardtronics is filing with the SEC a proxy statement under Regulation 14A of the Exchange Act, attached hereto as Exhibit (a)(1) (the "Proxy Statement"), pursuant to which Cardtronics' board of directors is soliciting proxies from Cardtronics' shareholders in connection with the Acquisition. As of the date hereof, the Proxy Statement is in preliminary form and is subject to completion. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to them in the Proxy Statement. The responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Proxy Statement.
The cross-references below are being supplied pursuant to General Instruction G of Schedule 13E-3 and show the location in the Proxy Statement of the information required to be included in response to the Items of Schedule 13E-3. The information contained in the Proxy Statement, including all annexes thereto, and documents incorporated by reference into the Proxy Statement are expressly incorporated herein by reference.
The information concerning Cardtronics contained in, or incorporated by reference into this Schedule 13E-3 and the Proxy Statement was supplied by Cardtronics. Similarly, all information concerning each other Filing Person contained in, or incorporated by reference into this Schedule 13E-3 and the Proxy Statement was supplied by such Filing Person. No Filing Person, including Cardtronics, is responsible for the accuracy of any information supplied by any other Filing Person.
Summary Term Sheet.
The information set forth in the Proxy Statement under the following captions is incorporated herein by reference.
"SUMMARY TERM SHEET"
"QUESTIONS AND ANSWERS ABOUT THE ACQUISITION AND SHAREHOLDER MEETINGS"
Subject Company Information.
(a) Name and Address. The Company's name and the address and telephone number of its principal executive offices are as follows:
2050 W. Sam Houston Parkway South,
Suite 1300, Houston, Texas 77042
(b) Securities. The class of securities to which this Schedule 13E-3 relates is ordinary shares, par value $0.01 per share, of Cardtronics. As of December 31, 2020, 44,539,433 of Cardtronics' ordinary shares were issued and outstanding. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE COURT MEETING AND THE GENERAL MEETING — Voting at the Court Meeting and the General Meeting"
(c) Trading Market and Price. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
"MARKET AND DIVIDEND DATA"
(d) Dividends. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION AGREEMENT — Covenants Regarding Conduct of Business by the Company Prior to the Acquisition"
"MARKET PRICE AND DIVIDEND DATA"
(e) Prior Public Offerings. None.
(f) Prior Stock Purchases. The following table provides information about the Hudson Parties' market purchases of shares over the past two years.
Range of prices paid ($)
Average price paid
per shares ($)
    517,947      18.63-24.75      23.15
Identity and Background of Filing Person.
(a) Name and Address. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — The Parties"
"PARTIES TO THE ACQUISITION"
"SHARE OWNERSHIP"
"WHERE YOU CAN FIND MORE INFORMATION"
(b) Business and Background of Entities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(c) Business and Background of Natural Persons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(d) Tender Offer. Not applicable.
Terms of the Transaction.
(a) Material Terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE COURT MEETING AND THE GENERAL MEETING"
"THE ACQUISITION — Overview"
"THE ACQUISITION — Recommendation of the Board"
"THE ACQUISITION — Consequences if the Acquisition is Not Completed"
"THE ACQUISITION — Financing of the Acquisition"
"THE ACQUISITION — Material U.K. Federal Income Tax Consequences of the Acquisition"
"THE ACQUISITION — Material U.S. Federal Income Tax Consequences of the Acquisition"
"THE ACQUISITION AGREEMENT"
ANNEX A — ACQUISITION AGREEMENT
ANNEX B — SCHEME
(b) Different Terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — The Acquisition"
"THE ACQUISITION AGREEMENT — The Acquisition"
"THE ACQUISITION AGREEMENT — Acquisition Consideration"
"ROLLOVER AND CONTRIBUTION AGREEMENT"
(c) Appraisal Rights. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — No Dissenters' or Rights of Objecting Shareholders"
"NO DISSENTERS' OR RIGHTS OF OBJECTING SHAREHOLDERS"
(d) Provisions for Unaffiliated Security Holders. None.
(e) Eligibility for Listing or Trading. None.
Past Contacts, Transactions, Negotiations and Agreements.
(a) Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION — Background of the Acquisition"
"THE ACQUISITION — Interests of Directors and Executive Officers in the Acquisition"
(b) Significant Corporate Events. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
(c) Negotiations or Contacts.
(e) Agreements Involving the Subject Company's Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — Irrevocable Undertakings"
"IRREVOCABLE UNDERTAKINGS"
ANNEX D — FORM OF DIRECTOR SHAREHOLDER IRREVOCABLE UNDERTAKING
ANNEX E — HEC IRREVOCABLE UNDERTAKING
Purposes of the Transaction and Plans or Proposals.
(b) Use of Securities Acquired. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — Certain Effects of the Acquisition"
"THE ACQUISITION — Other Covenants and Agreements"
"CERTAIN EFFECTS OF THE ACQUISITION"
(c) Plans. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION"
Purposes, Alternatives, Reasons and Effects.
(a) Purposes. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION — Purposes and Reasons of the Company for the Acquisition"
"THE ACQUISITION — Purposes and Reasons of the HEC Filing Persons for the Acquisition"
"THE ACQUISITION — Purposes and Reasons of the Apollo Filing Persons for the Acquisition"
(b) Alternatives. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
(c) Reasons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION — Reasons for Recommending the Approval of the Acquisition"
"THE ACQUISITION — Position of the HEC Filing Persons as to Fairness of the Acquisition"
"THE ACQUISITION — Position of the Apollo Filing Persons as to Fairness of the Acquisition"
"THE ACQUISITION — Certain Financial Projections Utilized in Connection with the Acquisition"
"THE ACQUISITION — Opinion of Goldman Sachs & Co. LLC"
"THE ACQUISITION — Opinion of Goldman Sachs & Co. LLC — Summary of Financial Analyses"
The presentation made by Goldman Sachs & Co. LLC at a meeting of Cardtronics' board of directors on December 14, 2020 is attached hereto as Exhibit (c)(2) and is incorporated herein by reference.
(d) Effects. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — Treatment of Outstanding Equity Awards"
"SUMMARY TERM SHEET — Interests of Directors and Executive Officers in the Acquisition"
"THE ACQUISITION AGREEMENT — Options"
"THE ACQUISITION AGREEMENT — Time-Based Restricted Stock Units"
"THE ACQUISITION AGREEMENT — Performance-Based Restricted Stock Units"
Fairness of the Transaction.
(a) Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
ANNEX C — OPINION OF GOLDMAN SACHS & CO. LLC
(b) Factors Considered in Determining Fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(c) Approval of Security Holders. The information set forth in the Proxy Statement under the following captions are incorporated herein by reference:
"SUMMARY TERM SHEET — The Court Meeting and the General Meeting; Board Recommendation"
"SUMMARY TERM SHEET — Voting Record Time"
"SUMMARY TERM SHEET — Vote Required; Abstentions and Broker Non-votes"
(d) Unaffiliated Representative. Not applicable.
(e) Approval of Directors. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(f) Other Offers. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:
Reports, Opinions, Appraisals and Negotiations.
(a) Report, Opinion or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(b) Preparer and summary of the Report, Opinion or Appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(c) Availability of Documents. The reports, opinions and appraisals referenced in this Item 9 are available for inspection and copying at Cardtronics' principal executive offices at 2050 West Sam Houston Parkway South, Suite 1300, Houston, Texas, United States, 77042, during regular business hours by any interested stockholder of Cardtronics or any representative of such stockholder who has been so designated in writing. At the written request of such stockholder, a copy of the reports, opinions and appraisals will be sent, at the stockholder's expense, to such stockholder or his, her or its representative.
Item 10.
Source and Amounts of Funds or Other Consideration.
(a) Source of Funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"SUMMARY TERM SHEET — Financing of the Acquisition"
(b) Conditions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION AGREEMENT — Representations and Warranties of Bidco"
"THE ACQUISITION AGREEMENT — Surviving Company Financing"
"THE ACQUISITION AGREEMENT — Specific Performance"
(c) Expenses. The information set forth in the Proxy Statement under the caption is incorporated herein by reference.
"SUMMARY TERM SHEET — Consequences if the Acquisition is Not Completed"
"SUMMARY TERM SHEET — Termination Fees"
"THE COURT MEETING AND THE GENERAL MEETING — Solicitation of Proxies"
"THE ACQUISITION — Director and Officer Indemnification and Insurance"
"THE ACQUISITION — Representations and Warranties of the Company"
"THE ACQUISITION — Representations and Warranties of BidCo"
"THE ACQUISITION — Expenses; Termination Fees"
(d) Borrowed Funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
Interest in Securities of the Subject Company.
(a) Securities Ownership. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(b) Securities Transactions. The information set forth in the Proxy Statement under the following captions are incorporated herein by reference.
The Solicitation or Recommendation.
(d) Intent to Tender or Vote in a Going-Private Transaction. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
(e) Recommendation of Others. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
Financial Statements.
(a) Financial Information. Cardtronics' Form 10-Q filed with the SEC on October 29, 2020 (for the quarterly period ended September 30, 2020) and Cardtronics' Form 10-K filed with the SEC on March 2, 2020 (for the fiscal year ended December 31, 2019) are incorporated by reference herein.
(b) Pro Forma Information. Not applicable.
Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"QUESTIONS AND ANSWERS ABOUT THE ACQUISITION AND THE SHAREHOLDER MEETINGS"
"THE COURT MEETING AND THE GEENRAL MEETING — Proxies"
(b) Employees and Corporate Assets. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION AGREEMENT — Employee Benefits"
(b) Golden Parachute Compensation. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:
"THE ACQUISITION — Golden Parachute Compensation"
(c) Other Material Information. The information set forth in the Proxy Statement, including all annexes thereto, is incorporated herein by reference.
Exhibits.
 (a)(1)   Preliminary Proxy Statement of Cardtronics plc (incorporated herein by reference to the Schedule 14A filed concurrently with the Securities and Exchange Commission on January 7, 2021 (the "Proxy Statement").
 (a)(2)   Scheme of Arrangement of Cardtronics plc (incorporated herein by reference to Annex B of the Proxy Statement).
 (a)(3)   Letter to Shareholders (incorporated herein by reference to the Proxy Statement).
 (a)(4)   Notice of Court Meeting (incorporated herein by reference to the Proxy Statement).
 (a)(5)   Notice of General Meeting (incorporated herein by reference to the Proxy Statement).
 (a)(6)
Form of Proxy Card for Court Meeting (incorporated herein by reference to the Proxy Statement).
 (a)(7)   Form of Proxy Card for General Meeting (incorporated herein by reference to the Proxy Statement).
 (a)(8)   Press Release issued on December 15, 2020 (filed as Exhibit 99.1 to the Company's Current Report on Form 8-K, filed December 15, 2020 and incorporated herein by reference).
 (a)(9)   A message from Ed West, Chief Executive officer dated December 15, 2020 (filed as Exhibit 99.2 to the Company's Current Report on Form 8-K, filed December 15, 2020 and incorporated herein by reference).
 (b)(1)   Debt Commitment Letter, dated December 15, 2020, by and among Catalyst Holdings Limited, Royal Bank of Canada, RBC Capital Markets, LLC, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG Cayman Islands Branch, Deutsche Bank AG New York Branch and Mizuho Bank, Ltd.
 (b)(2)   Equity Commitment Letter, dated December 15, 2020, by and among Catalyst Holdings Limited, Apollo Investment Fund IX, L.P., Apollo Overseas Partners (Delaware) IX, L.P., Apollo Overseas Partners (Delaware 892) IX, L.P., Apollo Overseas Partners IX, L.P., and Apollo Overseas Partners (Lux) IX, SCSP.
 (c)(1)   Opinion of Goldman Sachs & Co. LLC, dated December 15, 2020 (incorporated herein by reference to Annex C of the Proxy Statement).
 (c)(2)   Discussion Materials, dated December 14, 2020, of Goldman Sachs & Co. LLC.
 (d)(1)   Acquisition Agreement, dated December 15, 2020, by and between, Cardtronics plc and Catalyst Holdings Limited (incorporated herein by reference to Annex A to the Proxy Statement).
 (d)(2)   Form of Director Shareholder Irrevocable Undertaking, dated December 15, 2020 (incorporated herein by reference to Annex D of the Proxy Statement).
 (d)(3)   HEC Irrevocable Undertaking, dated December 15, 2020, by and among Hudson Executive Capital LP, HEC Master Fund LP and HEC SPV I LP (incorporated herein by reference to Annex E of the Proxy Statement).
 (d)(4)   Limited Guarantee, dated December 15, 2020, by and among Cardtronics plc, Apollo Investment Fund IX, L.P., Apollo Overseas Partners (Delaware) IX, L.P., Apollo Overseas Partners (Delaware 892) IX, L.P., Apollo Overseas Partners IX, L.P., and Apollo Overseas Partners (Lux) IX, SCSP (filed as Exhibit 10.3 to the Company's Current Report on Form 8-K, filed December 15, 2020 and incorporated herein by reference).
 (f)   None.
 (g)   None.
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.
    Cardtronics plc
 Date: January 7, 2021   By:
/s/ Gary W. Ferrera
       Name:   Gary W. Ferrera
       Title:   Chief Financial Officer
    Catalyst Holdings Limited
/s/ Robert Kalsow-Ramos
       Name:   Robert Kalsow-Ramos
       Title:   Director
    Apollo Overseas Partners (Delaware 892) IX, L.P.
    By:   Apollo Advisors IX, L.P.,
its general partner
    By:   Apollo Capital Management IX, LLC,
/s/ Laurie D. Medley
       Name:   Laurie D. Medley
       Title:   Vice President
    Apollo Overseas Partners (Delaware) IX, L.P.
    Apollo Overseas Partners IX, L.P.
    Apollo Overseas Partners (Lux) IX, SCSP
       Apollo Overseas Partners (Lux) IX, GP, S.à r.l.,
as general partner of
       Apollo Overseas Partners (Lux) IX, SCSp,
acting by its alternative investment fund manager
       Apollo Investment Management Europe (Luxembourg)
S.à r.l., acting by its delegate
       Apollo Management IX, L.P.,
acting by its general partner
       AIF IX Management LLC, acting by
    Apollo Global Management, Inc.
/s/ John J. Suydam
       Name:   John J. Suydam
       Title:   Vice President & Secretary
After due inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
    HUDSON EXECUTIVE CAPITAL LP
 Date: January 7, 2021   By:   HEC Management GP LLC, its general partner
    By:
/s/ Douglas L. Braunstein
       Name:   Douglas L. Braunstein
       Title:   Managing Member
    HEC MANAGEMENT GP LLC
    HEC MASTER FUND LP
    By:   HEC Performance GP LLC, its general partner
    By:   HEC Management GP LLC, its managing member
    HEC SPV I LP
    By:   HEC SPV I GP LLC, its general partner
    DOUGLAS L. BRAUNSTEIN

       Douglas L. Braunstein
Exhibit (b)(1)
EXECUTION VERSION
ROYAL BANK OF CANADA BARCLAYS
RBC CAPITAL MARKETS, LLC 745 Seventh Avenue
200 Vesey Street New York, New York 10019
DEUTSCHE BANK AG NEW YORK BRANCH MIZUHO BANK, LTD.
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH 1271 Avenue of the Americas
DEUTSCHE BANK SECURITIES INC. New York, New York 10020
9 West 57th Street
Attention: Robert Kalsow-Ramos
Project Catalyst
$1,200 million Senior Secured Term Facility
$300 million Senior Secured Revolving Facility
$450 million Senior Unsecured Bridge Facility
Commitment Letter
You have advised Royal Bank of Canada ("RBC"), RBC Capital Markets1 ("RBCCM" and, together with RBC, "Royal Bank of Canada"), Barclays Bank PLC ("Barclays"), Deutsche Bank AG New York Branch ("DBNY"), Deutsche Bank AG Cayman Islands Branch ("DBCI" and, together with DBNY, "DB"), Deutsche Bank Securities Inc. ("DBSI" and, together with DB, "Deutsche Bank") and Mizuho Bank, Ltd. ("Mizuho" and, together with Royal Bank of Canada, Barclays and Deutsche Bank, the "Banks") that (i) Catalyst Holdings Limited, a private limited company incorporated in England and Wales (the "Company"), intends to enter into an acquisition agreement (including all exhibits and schedules thereto, the "Acquisition Agreement") with Cardtronics plc, a public limited company incorporated in England and Wales (the "Target"), and (ii) you intend to consummate the other transactions described in the Transaction Description attached hereto as Exhibit A (the "Transaction Description").
You have further advised us that, in connection therewith, the Borrower (as defined in the Transaction Description) (together with the Company, "you") will obtain the Senior Facilities and, if applicable, the Senior Unsecured Bridge Facility (each as defined in the Transaction Description and, collectively, the "Facilities"), subject solely to the conditions set forth in Section 6 of this Commitment Letter, in each of the Term Sheets (as defined below) under the paragraph titled "Conditions Precedent to Initial Borrowing" and in Exhibit D hereto (or waiver thereof by the Initial Lenders).
1 RBC Capital Markets is the brand name for the capital markets activities of Royal Bank of Canada and its affiliates.
Capitalized terms used but not defined herein have the meaning assigned to such terms in the Transaction Description, the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the "Senior Facilities Term Sheet") or the Summary of Principal Terms and Conditions attached hereto as Exhibit C (the "Senior Unsecured Bridge Facility Term Sheet" and, together with the Senior Facilities Term Sheet, the "Term Sheets").
1. Commitments.
In connection with the foregoing, (a) RBC is pleased to advise you of its several, but not joint, commitment to provide 30% of the principal amount of each of the Facilities, (b) Barclays is pleased to advise you of its several, but not joint, commitment to provide 30% of the principal amount of each of the Facilities, (c) DBNY is pleased to advise you of its several, but not joint, commitment to provide 20% of the principal amount of each of the Senior Facilities and DBCI is pleased to advise you of its several, but not joint, commitment to provide 20% of the principal amount of the Senior Unsecured Bridge Facility and (d) Mizuho is pleased to advise you of its several, but not joint, commitment to provide 20% of the principal amount of each of the Facilities, in each case, upon the terms and subject solely to the conditions (or waiver thereof by the Initial Lenders) set forth in this commitment letter (including the Term Sheets and other attachments hereto, this "Commitment Letter").
You shall have the right, at any time until fifteen (15) business days after the date this Commitment Letter and the Fee Letter referred to below are executed and delivered by you, to obtain commitments from additional banks, financial institutions and other entities (the "Additional Initial Lenders" and, together with the Banks, each, an "Initial Lender" and, collectively, the "Initial Lenders") to assume the rights and obligations of the Banks hereunder in respect of up to 35% of the commitments under the Facilities (allocated ratably among the Facilities); provided that the Additional Initial Lenders and the assignment and assumption documentation shall be reasonably acceptable to the Banks. Each Bank's commitments (and any commitment held by any and all lenders to which any Bank assigns a portion of its commitments in accordance with the terms hereof prior to the execution of such documentation other than to Additional Initial Lenders) shall be reduced pro rata by the aggregate amount of commitments held by the Additional Initial Lenders upon the execution by such Additional Initial Lenders of such documentation and each such Additional Initial Lender's several commitment shall be allocated pro rata among the Facilities.
2. Titles and Roles.
It is agreed that (a) each of RBCCM, Barclays, DBSI and Mizuho will act as a joint bookrunner and a joint lead arranger (together with any additional lead arrangers appointed by the Borrower, each, in such capacity, a "Lead Arranger" and, collectively, the "Lead Arrangers") for the Facilities, (b) RBC will act as sole administrative agent and collateral agent for the Senior Facilities and (c) Barclays will act as sole administrative agent for the Senior Unsecured Bridge Facility, in each case upon the terms and subject to the conditions (or waiver thereof by the Initial Lenders) set forth or referred to in this Commitment Letter. You may appoint additional co-agents, co-managers and one or more joint bookrunners and joint lead arrangers reasonably acceptable to the Banks (the "Additional Arrangers" and, together with the Banks, each, an "Arranger" and collectively, the "Arrangers" and, together with the Initial Lenders and their respective affiliates, the "Financial Institutions", "we" or "us"). We, in such capacities, will perform the duties and exercise the authority customarily performed and exercised by us in such roles. You agree that RBCCM will have "left" placement in any and all marketing materials or other documentation used in connection with the Senior Facilities and the role and responsibilities customarily associated with such placement. You agree that Barclays will have "left" placement in any and all marketing materials or other documentation used in connection with the Senior Unsecured Bridge Facility and the role and responsibilities customarily associated with such placement You and we further agree that no other titles will be awarded (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) in connection with the Facilities unless you and we shall so agree.
3. Syndication.
Subject to Section 9 of this Commitment Letter, we reserve the right, prior to and/or after the execution of definitive documentation for the Facilities (which will initially be drafted by your counsel), to syndicate all or a portion of the Initial Lenders' commitments with respect to the Facilities to a group of banks, financial institutions and other institutional lenders (together with the Initial Lenders, the "Lenders") identified by us in consultation with you and subject to your consent (such consent not to be unreasonably withheld or delayed). Notwithstanding anything to the contrary contained herein, any resales or assignments of loans or commitments under the Senior Facilities or the Senior Unsecured Bridge Facility by any Lender (including the Initial Lenders) on or following the date of the initial borrowings under the Senior Facilities (the "Closing Date") shall be governed by the provisions of the Senior Facilities or the Senior Unsecured Bridge Facility, as applicable, as set forth in the Term Sheets. Each Lender further agrees not to syndicate any of the commitments with respect to the Facilities to certain financial institutions and other entities that have been specified by you in writing on or prior to the date hereof or competitors of the Target and its subsidiaries specified by you in writing on or prior to the date hereof (the list of which may be updated from time to time by you in writing (i) after the date hereof and prior to the syndication of the Facilities and/or (ii) following the earlier to occur of a Successful Syndication (as defined in the Fee Letter) and 60 days after the Closing Date, in each case, with respect to additional bona fide competitors of the Target and its subsidiaries) (collectively, the "Disqualified Lenders"); provided that, for the avoidance of doubt, any such additional designation shall not apply retroactively to any prior assignment made to any Lender that was permitted hereunder at the time of such assignment. We intend to commence syndication efforts promptly upon the execution of this Commitment Letter, and you agree to actively assist us in completing a syndication that is reasonably satisfactory to us and you until the earlier to occur of a Successful Syndication and 60 days after the Closing Date. During such period, such assistance shall include, subject in all cases with respect to assistance from or information related to the Target and its subsidiaries, to any applicable limitations on your rights in the Acquisition Agreement, (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit from the Sponsor's (as defined in the Transaction Description) and your existing lending and investment banking relationships, (b) direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of you (and, subject always to the extent expressly provided in the Acquisition Agreement, your using commercially reasonable efforts to cause direct contact between appropriate members of senior management, certain representatives and certain non-legal advisors of the Target and its subsidiaries) and the proposed Lenders, in all such cases at times mutually agreed upon, (c) assistance by you and the Sponsor (and, subject always to the extent expressly provided in the Acquisition Agreement, your using commercially reasonable efforts to cause the assistance by the Target and its subsidiaries) in the preparation of a confidential information memorandum ("Confidential Information Memorandum") in form and substance substantially consistent with the confidential information memoranda in recent transactions sponsored by the Sponsor for each of the Facilities and other customary marketing materials to be used in connection with the syndication of the Facilities, (d) your using commercially reasonable efforts to obtain (which use of commercially reasonable efforts shall not require you to change the proposed terms of the Facilities), upon our request, prior to the commencement of general syndication of the Facilities, (i) public ratings for the Senior Facilities, the Senior Unsecured Notes and, if requested by the Lead Arrangers, the Senior Unsecured Bridge Facility and (ii) a public corporate credit rating and public corporate family rating in respect of the Company, in each case, from each of Standard & Poor's Ratings Services ("S&P") and Moody's Investors Service, Inc. ("Moody's"), respectively, and (e) the hosting, with the Arrangers, of up to three meetings or conference calls of prospective Lenders at times and locations mutually agreed upon. Without limiting your obligations to assist with syndication efforts as set forth above, neither the receipt of such ratings nor the commencement, conduct or completion of such syndication is a condition to the commitments or the funding of the Facilities on the Closing Date.
You agree, at the request of the Lead Arrangers, to assist us in the preparation of a version of the Confidential Information Memorandum and other customary marketing materials to be used in connection with the syndication of the Facilities, consisting exclusively of information that is either (i) publicly available (or, in the case of a company that is not a public reporting company, information of a type that would reasonably be expected to be publicly available if such company were a public reporting company) or (ii) not material with respect to Holdings (as defined in the Transaction Description), the Borrower, the Target and their respective subsidiaries, taken as a whole, or any of their respective securities for purposes of United States Federal and state securities laws (all such information and documentation being "Public Lender Information"). Any information and documentation that is not Public Lender Information is referred to herein as "Private Lender Information". It is understood that, in connection with your assistance described above, customary authorization letters, consistent with the terms of this Commitment Letter, will be included in any information package and presentation whereby you authorize the distribution of such information to prospective Lenders containing a representation substantially consistent with the first sentence of Section 4 of this Commitment Letter and a representation by you to the Financial Institutions that the Public Lender Information does not include material non-public information (or, in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) about Holdings, the Borrower, the Target and their respective subsidiaries, taken as a whole, or their respective securities and exculpating you, Holdings, the Investors, the Target and us with respect to any liability related to the use of the contents of such Public Lender Information or any other related marketing materials by the recipients thereof. You acknowledge and agree that, subject to the confidentiality and other provisions of Section 12 of this Commitment Letter, the following documents may be distributed to potential Lenders wishing to receive only Public Lender Information (unless you or your counsel promptly notify us (including by email) otherwise and provided that you and your counsel have been given a reasonable opportunity to review such documents and comply with applicable securities law disclosure obligations): (a) term sheets and drafts that are not marked confidential and final definitive documentation with respect to the Facilities; provided that, for the avoidance of doubt, no such term sheets or drafts may be distributed to any potential Lenders unless approved by you (such approval not to be unreasonably withheld or delayed); (b) administrative materials prepared by the Arrangers for prospective Lenders (such as a lender meeting invitation, allocations and funding and closing memoranda); and (c) notification of changes in the previously disclosed terms of the Facilities. You also agree to use commercially reasonable efforts to identify that portion of any other Information (as defined below) or Projections (as defined below) (collectively, the "Borrower Materials") to be distributed to "public side" lenders (i.e., lenders that do not wish to receive material non-public information (or, in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to Holdings, the Borrower, the Target and their respective subsidiaries, taken as a whole, or any of their respective securities), including by clearly and conspicuously marking such materials "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently on the first page thereof. By marking Borrower Materials "PUBLIC", you shall be deemed to have authorized the Arrangers and the proposed Lenders to treat such Borrower Materials as not containing any material non-public information (or, in the case of a company that is not a public reporting company, material information of a type that would not reasonably be expected to be publicly available if such company were a public reporting company) with respect to Holdings, the Borrower, the Target and their respective subsidiaries, taken as a whole, or any of their respective securities for purposes of United States Federal and state securities laws (it being understood that you shall not be under any obligation to mark the Borrower Materials "PUBLIC"). You hereby acknowledge and agree that any Borrower Materials that are not marked "PUBLIC" shall be treated as Private Lender Information by the Arrangers. For the avoidance of doubt, in connection with the foregoing requirements to provide assistance, you will not be required to provide any information to the extent that the provision thereof would violate any law, rule or regulation, or any obligation of confidentiality owing to a third party and binding on you, the Target or your or its respective affiliates or waive any attorney client privilege of you, the Sponsor, the Target or your or their respective affiliates; provided that no such obligations of confidentiality shall be entered into in contemplation of this sentence and in the event you do not provide information in reliance on this sentence, if permitted you shall provide notice to us that such information is being withheld and you shall use your commercially reasonable efforts to obtain the relevant consents and to communicate, to the extent both feasible and permitted under applicable law, rule, regulation or confidentiality obligation and to the extent such communication would not risk waiver of privilege, the applicable information.
The Lead Arrangers will manage all aspects of any syndication in consultation with you, including (in each case subject to the provisions set forth in this Commitment Letter and the Fee Letter) decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate, the allocation of the commitments among the Lenders, any naming rights and the amount and distribution of fees among the Lenders. To assist the Arrangers in their syndication efforts, you agree promptly to prepare and provide (and, subject always to the extent provided in the Acquisition Agreement, to use commercially reasonable efforts to cause the Target and its subsidiaries to provide) to the Lead Arrangers all customary information reasonably requested by the Lead Arrangers that is reasonably available to you with respect to Holdings, the Borrower, the Target and their respective subsidiaries, and the Transactions (as defined in the Transaction Description), including customary financial information and projections (such projections, the "Projections"), as the Lead Arrangers may reasonably request in connection with the structuring, arrangement and syndication of the Facilities. Notwithstanding anything herein to the contrary, (i) the only financial statements that shall be required to be provided to the Arrangers as a condition precedent to closing shall be those required to be delivered pursuant to Exhibit D hereof and (ii) neither the commencement, conduct or completion of syndication is a condition to the commitments or the funding of the Facilities on the Closing Date.
You hereby agree that, prior to the earlier of a Successful Syndication and 60 days after the Closing Date, there shall be no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of you or the Borrower, and you will use commercially reasonable efforts to ensure that there are no competing issues, offerings or placements of debt securities or commercial bank or other credit facilities by or on behalf of the Target or its subsidiaries, being offered, placed or arranged (other than the Facilities, the Senior Unsecured Notes (and/or the Senior Unsecured Securities), any indebtedness of the Target and its subsidiaries permitted to be incurred or outstanding pursuant to the Acquisition Agreement and other indebtedness incurred in the ordinary course of business of the Target and its subsidiaries for capital expenditures and working capital purposes), without the consent of the Lead Arrangers, if such issuance, offering, placement or arrangement would reasonably be expected to materially impair the primary syndication of the Facilities or the offering of the Senior Unsecured Notes (and/or the Senior Unsecured Securities).
The Initial Lenders and the Arrangers will cooperate with the Borrower as reasonably requested in coordinating the timing and procedures for the initial borrowing and consummation of the Transactions in a manner consistent with the Acquisition Agreement.
4. Information.
You hereby represent that (with respect to information relating to the Target and its subsidiaries, to the best of your knowledge) (a) all written factual information (other than the Projections, forward looking information and information of a general economic or industry specific nature) (the "Information") that has been or will be made available to us by you, the Target, the Sponsor or any of your or their representatives on your behalf in connection with the transactions contemplated hereby, when taken as a whole, and together with the information set forth in the Target's public filings with the U.S. Securities and Exchange Commission ("SEC"), is or will be, when furnished, correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates provided thereto) and (b) the Projections and other forward looking information that have been or will be made available to us by you, the Target, the Sponsor or any of your or their respective representatives on your behalf in connection with the transactions contemplated hereby have been or will be prepared in good faith based upon assumptions that you believe to be reasonable at the time made and at the time such Projections are made available to us; it being understood by the Lenders that such Projections are as to future events and are not to be viewed as facts, such Projections are subject to significant uncertainties and contingencies and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results, such differences may be material, and that no assurance can be given that the projected results will be realized. You agree that, if at any time prior to the earlier of the occurrence of a Successful Syndication and the date that is 60 days after the Closing Date, you become aware that any of the representations in the preceding sentence would be incorrect (to the best of your knowledge with respect to Information and Projections and any forward looking information relating to the Target and its subsidiaries) in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will use commercially reasonable efforts to promptly supplement the Information and the Projections so that such representations will be correct (to the best of your knowledge with respect to Information and Projections and any forward looking information relating to the Target and its subsidiaries) in all material respects under those circumstances; provided that the obligations to supplement the Information and Projections under this sentence shall not in any event terminate prior to the Closing Date. In arranging, syndicating and committing to the Facilities, the Arrangers and, in committing to provide the Facilities, the Initial Lenders will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, none of the making of any representation under this Section 4, the provision of any supplement to any Information or the Projections, nor the accuracy of any such representation or supplement shall constitute a condition precedent to the availability and/or initial funding of any of the Facilities on the Closing Date.
5. Fees.
As consideration for the Initial Lenders' commitments hereunder, and our agreements to perform the services described herein, you agree to pay (or to cause the Borrower to pay) to us the fees set forth in the fee letter dated the date hereof and delivered herewith with respect to the Facilities (the "Fee Letter") on the terms and subject to the conditions set forth therein. Once paid, such fees shall not be refundable under any circumstances except as agreed to between you and us.
6. Conditions Precedent.
The Initial Lenders' obligations to fund their respective commitments in respect of a Facility hereunder, and our agreements to perform the services described herein, are subject solely to (a) the execution and delivery by the Borrower (and Holdings and the Company, as applicable) of definitive documentation with respect to such Facility on the terms set forth in the Term Sheet applicable to such Facility, consistent with the Documentation Precedent (as defined in the Fee Letter), and (b) the satisfaction (or waiver by the Initial Lenders) in all material respects of the conditions set forth in the Term Sheet applicable to such Facility under the paragraph titled "Conditions Precedent to Initial Borrowing" and Exhibit D hereto. There shall be no conditions to closing and funding under the Facilities on the Closing Date other than those expressly referred to in this Section 6.
For the avoidance of doubt, your compliance with your obligations under this Commitment Letter and/or the Fee Letter, other than your satisfaction (or procurement of a waiver from the Initial Lenders) of the conditions described on Exhibit D and the conditions set forth in each of the Term Sheets under the paragraph titled "Conditions Precedent to Initial Borrowing", is not a condition to the availability of the Facilities on the Closing Date.
The definitive documentation for the Facilities shall not contain (a) any conditions precedent other than the conditions precedent expressly set forth in Exhibit D hereto and the conditions set forth in each of the Term Sheets under the paragraph titled "Conditions Precedent to Initial Borrowing", or (b) any representation or warranty, affirmative, negative or financial covenant or event of default not set forth in Exhibit D hereto or the conditions set forth in each of the Term Sheets under the paragraph titled "Conditions Precedent to Initial Borrowing", the making, accuracy, compliance or absence, respectively, of or with which would be a condition to the initial borrowing under the Facilities. The failure of any representation or warranty (other than the Specified Representations and the Target Representations) to be true and correct in all material respects on the Closing Date will not constitute the failure of a condition precedent to funding or a default or event of default under the Facilities.
7. Indemnification; Expenses.
You agree (a) to indemnify and hold harmless each Financial Institution and its affiliates, and the respective officers, directors, employees, agents, controlling persons, members and representatives of each of the foregoing and their respective successors and assigns (each, an "Indemnified Person") from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Facilities, the use or intended use of the proceeds of the Facilities or any related transaction or any actual or threatened claim, actions, suits, inquiries, litigation, investigation or proceeding (any such claim, actions, suits, inquiries, litigation, investigation or proceeding, a "Proceeding") relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by you, your or the Target's equity holders, creditors or any other third party or by Holdings, the Borrower, the Target or any of their respective subsidiaries or affiliates), and to reimburse each such Indemnified Person promptly upon demand for any reasonable documented out-of-pocket legal expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all Indemnified Persons, taken as a whole (and, if necessary, by a single firm of local counsel in each appropriate jurisdiction for all Indemnified Persons, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel with your prior consent (not to be unreasonably withheld or delayed), of another firm of counsel (and local counsel, if applicable) for such affected Indemnified Person)) and other reasonable documented out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing or in connection with the enforcement of any provision of this Commitment Letter or the Fee Letter; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to (A) losses, claims, damages, liabilities or related expenses (i) to the extent they are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person's controlled or controlling affiliates or any of its or their respective officers, directors, employees, agents, controlling persons, members or representatives (collectively, such Indemnified Person's "Related Persons") (provided that each reference to "representatives" pertains solely to such representatives involved in the negotiation of this Commitment Letter or syndication of the Facilities), (ii) arising out of a material breach by such Indemnified Person (or any of such Indemnified Persons' Related Persons) of its obligations under this Commitment Letter (as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (iii) arising out of any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of you or any of your affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against any Financial Institution in its capacity or in fulfilling its role as an administrative agent, or other agent or Arranger under the Facilities), (B) any settlement entered into by such Indemnified Person (or any of such Indemnified Person's Related Persons) without your written consent (such consent not to be unreasonably withheld, delayed or conditioned), provided, however, that the foregoing indemnity will apply to any such settlement in the event that you were offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to assume such defense, or (C) any expenses of the type referred to in clause (b) of this sentence except to the extent such expenses would otherwise be of the type referred to in clause (a), and (b) in the event the Closing Date occurs, to reimburse the Financial Institutions from time to time, upon presentation of a reasonably detailed summary statement, for all reasonable documented out-of-pocket expenses (including but not limited to expenses of our due diligence investigation, fees of consultants hired with your prior written consent (such consent not to be unreasonably withheld or delayed), syndication expenses, travel expenses and fees, disbursements and other charges of counsel identified in the Term Sheets and of a single firm of local counsel to the Arrangers in each appropriate jurisdiction retained with your prior written consent (such consent not to be unreasonably withheld or delayed) (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel with your prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (and local counsel, if applicable) for such affected Indemnified Person)), in each case, incurred in connection with the Facilities and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letter, the definitive documentation for the Facilities and any ancillary documents or security arrangements in connection therewith. It is further agreed that the Financial Institutions shall have no liability to any person other than you, and you shall have no liability to any person other than the Financial Institutions and the Indemnified Persons in connection with this Commitment Letter, the Fee Letter, the Facilities or the transactions contemplated hereby or thereby. No Indemnified Person shall be liable for any damages arising from the use by others of any information or other materials obtained through internet, electronic, telecommunications or other information transmission systems except to the extent they are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its Related Persons. None of the Indemnified Persons or (except solely as a result of your indemnification obligations set forth above to the extent an Indemnified Person is found so liable) you, the Sponsor or any of your or its respective affiliates or the respective directors, officers, employees, advisors, and agents of the foregoing shall be liable for any indirect, special, punitive or consequential damages in connection with this Commitment Letter, the Fee Letter, the Facilities or the transactions contemplated hereby or thereby. The provisions of this Section 7 shall be superseded in each case by the applicable provisions contained in the definitive documentation for the Facilities to the extent covered thereby upon execution thereof and thereafter shall have no further force and effect. You shall not, without the prior written consent of each applicable Indemnified Person (which consent, except with respect to a settlement including a statement of the type referred to in clause (b) below, shall not be unreasonably withheld 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, (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 and (c) includes customary confidentiality and non-disparagement agreements.
8. Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.
You acknowledge that we 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 or otherwise. We will not furnish confidential information obtained from you, the Sponsor, the Target or any of your or their representatives by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you or the Sponsor to other companies. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies.
You further acknowledge and agree that (a) each Financial Institution will act as an independent contractor and no fiduciary, advisory or agency relationship between you and us is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether we have advised or are advising you on other matters, (b) each Financial Institution is acting solely as a principal and not as an agent of yours hereunder and the Financial Institutions, on the one hand, and you, on the other hand, have an arm's-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of us, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that we are engaged in a broad range of transactions that may involve interests that differ from your interests and that we do not have any obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship and (e) you agree not to assert, to the fullest extent permitted by law, any claims you may have against us for breach of fiduciary duty or alleged breach of fiduciary duty and agree that we shall not have any liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.
You further acknowledge that each Financial Institution or its affiliates is a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, we or our affiliates may provide investment banking and other financial services to, and/or we or our affiliates may acquire, hold or sell, for our own or our affiliates' accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Borrower, the Target and its subsidiaries and other companies with which you, the Borrower or the Target or its subsidiaries may have commercial or other relationships. With respect to any securities and/or financial instruments so held by us or our affiliates, or any of our or our affiliates' 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.
In addition, please note that certain of the Lead Arrangers and/or their affiliates have been retained by the Sponsor as a financial advisor (in such capacity, the "Financial Advisor") in connection with the Acquisition. You agree to such retention, and further agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of each Financial Advisor and/or its affiliates, on the one hand, including with respect to arranging or providing financing for a competing bidder, and, on the other hand, our and our affiliates' relationships with you described and referred to herein. You acknowledge that, in such capacity, each Financial Advisor may advise the Sponsor in other manners adverse to the interests of the parties hereto. Each of the Financial Institutions hereto acknowledges (i) the retention of such entities as a Financial Advisor and (ii) that such relationship does not create any fiduciary duties or fiduciary responsibilities to such Financial Institution on the part of such entities or their affiliates.
9. Assignments; Amendments; Governing Law, Etc.
This Commitment Letter shall not be assignable by any party hereto (other than by you to the Borrower or one of your affiliates organized under the laws of the United States formed for the purpose of consummating the Transactions (other than any portfolio company of the Sponsor), in any case that will, after giving effect to the Transactions, (i) either (x) own (directly or indirectly) the Target or be a successor to the Target or (y) be a wholly-owned subsidiary of the Target and (ii) be controlled by the Sponsor), without the prior written consent of each other party hereto (not to be unreasonably withheld) and any attempted assignment without such consent shall be null and void, is intended to be solely for the benefit of the parties hereto (and Indemnified Persons to the extent expressly provided for herein), and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly provided for herein); provided that each Initial Lender may assign its commitments hereunder (subject to the provisions set forth in this Commitment Letter) to one or more prospective Lenders, provided, further, that, except for assignments to Additional Initial Lenders as set forth above, such Initial Lender shall only be released from the portion of its commitments hereunder so assigned to the extent such assignee funds (or, in the case of the Revolving Facility, provides) the portion of the commitments assigned to it on the Closing Date on the terms and conditions to such funding set forth herein. Unless you otherwise agree in writing, each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred. Any and all obligations of, and services to be provided by, each of us hereunder (including, without limitation, our commitments as an Initial Lender) may be performed and any and all of our rights hereunder may be exercised by or through any of our respective affiliates or branches and, in connection with such performance or exercise, we may, subject to Section 12, exchange with such affiliate or branches information concerning you and your affiliates that may be the subject of the transactions contemplated hereby and, to the extent so employed, such affiliates and branches shall be entitled to the benefits afforded to us hereunder and be subject to the obligations undertaken by us hereunder.
This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by us and you.
This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. The words "execution," "signed," "signature" and words of like import in this Commitment Letter relating to the execution and delivery of this Commitment Letter shall be deemed to include electronic signatures, which shall be of the same legal effect, validity or enforceability as a manually executed signature to the extent and as provided in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
You acknowledge that information and documents relating to the Facilities may be transmitted through Syndtrak, Intralinks, the internet, e-mail or similar electronic transmission systems, and that no Indemnified Person or any of its Related Persons shall be liable for any damages arising from the use by others of information or documents transmitted in such manner except to the extent they are found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its Related Persons. We may, in consultation with you, place customary advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of customary information on the Internet or worldwide web as we may choose, and circulate similar promotional materials, in each case, after the closing of the Transactions in the form of a "tombstone" or otherwise describing the names of the Borrower and its affiliates (or any of them), and the amount, type and closing date of such Transactions, all at the expense of the applicable Financial Institution. This Commitment Letter and the Fee Letter supersede all prior understandings, whether written or oral, between us with respect to the Facilities. THIS COMMITMENT LETTER, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY TO THIS COMMITMENT LETTER, OR THE NEGOTIATION, EXECUTION OR PERFORMANCE OF THIS COMMITMENT LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY OTHER LAW; provided, however, that (A) the interpretation of the definition of "Material Adverse Effect" (as defined in Exhibit D) and whether or not a Material Adverse Effect has occurred, (B) the determination of the accuracy of any Target Representations (as defined in Exhibit D) and whether as a result of any inaccuracy thereof the Company has a right to terminate its obligations under the Acquisition Agreement and (C) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement and, in any case of the foregoing clauses (A), (B) and (C), claims or disputes arising out of any such interpretation or determination or any aspect thereof shall, in each case, be governed by and construed in accordance with the laws governing the Acquisition Agreement as applied to the Acquisition Agreement, without giving effect to any choice of law or conflict of law provision or rule of any jurisdiction that would cause the application of the law of any other jurisdiction.
10. Jurisdiction.
Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, 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, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby, and agrees that all claims in respect of any such action or proceeding shall be brought, heard and determined only in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any such New York State or Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court, and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. You and we agree that service of any process, summons, notice or document by registered mail addressed to you or us at the respective addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.
11. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
12. Confidentiality.
This Commitment Letter is delivered to you on the understanding that none of the Fee Letter and its terms or substance or, prior to your acceptance hereof, this Commitment Letter and its terms or substance, shall be disclosed, directly or indirectly, by you to any other person except (a) to the Investors (as defined in the Transaction Description), prospective Investors and to your and their respective officers, directors, employees, attorneys, agents, accountants, advisors, controlling persons and equity holders who are directly involved in the consideration of this matter on a confidential basis or (b) pursuant to the order of any court or administrative agency in any pending legal, judicial or administrative proceeding or otherwise as required by applicable law or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities (in which case you agree to inform us promptly thereof to the extent permitted by law); provided, that (w) you may disclose this Commitment Letter and the contents hereof (but not the Fee Letter or the contents thereof other than pursuant to clause (i) below and only if redacted in a manner reasonably satisfactory to the Lead Arrangers) (i) to the Target and its subsidiaries and their respective officers, directors, employees, attorneys, agents, accountants, advisors, controlling persons, creditors and equity holders who are directly involved in the consideration of this matter, in each case on a confidential basis; provided that, for the avoidance of doubt, you and the Target may disclose this Commitment Letter and the contents hereof in connection with any required filings with the Securities and Exchange Commission or any equivalent regulatory authority in applicable foreign jurisdictions or to any other regulatory authority having jurisdiction over you or them (but not the Fee Letter or the contents thereof), (ii) in any syndication or other marketing materials, prospectus or other offering memorandum, or any public or regulatory filing in each case relating to the Transactions, the Facilities and/or the Senior Unsecured Notes (and/or the Senior Unsecured Securities), (iii) to any rating agencies, (iv) to potential debt providers in coordination with us to obtain commitments to the Facilities and/or the Senior Unsecured Notes (and/or the Senior Unsecured Securities) from such potential debt providers and (v) to the extent such information becomes publicly available other than by reason of improper disclosure by you or your Related Persons in violation of any confidentiality obligations hereunder, (x) you may disclose the aggregate amounts contained in the Fee Letter as part of the Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Facilities and/or the Senior Unsecured Notes (and/or the Senior Unsecured Securities) or to the extent customary or required in any public or regulatory filing relating to the Facilities or the Transactions, (y) you may disclose the Commitment Letter and the Fee Letter to any court in England or Wales in connection with the Transactions and (z) after your acceptance hereof, you may disclose the Commitment Letter and the Fee Letter and the contents thereof to prospective Additional Initial Lenders who have agreed to be bound by confidentiality restrictions with respect thereto on substantially the terms set forth in the next paragraph; provided, further that the foregoing restrictions shall cease to apply (except in respect of the Fee Letter and the contents thereof) after the Closing Date.
We shall use all non-public information received by or on behalf of us and our affiliates in connection with this Commitment Letter and the transactions contemplated hereby solely for the purposes of negotiating, evaluating and consulting on the transactions contemplated hereby and providing the services that are the subject of this Commitment Letter and shall treat confidentially, together with the terms and substance of this Commitment Letter and the Fee Letter, all such information; provided, however, that nothing herein shall prevent us from disclosing any such information (a) to rating agencies, (b) to any Lenders, participants or hedging counterparties or prospective Lenders, participants or hedging counterparties who have agreed to be bound by confidentiality and use restrictions in accordance with the proviso to this sentence, (c) in any legal, judicial, administrative proceeding or other compulsory process or otherwise as required by applicable law or regulations (in which case we shall promptly notify you, in advance, to the extent permitted by law), (d) upon the request or demand of any regulatory or self- regulatory authority having or asserting jurisdiction over us or our respective affiliates (in which case, except with respect to any audit or examination conducted by bank accountants or any governmental, regulatory, or self-regulatory authority exercising examination or regulatory authority, we shall promptly notify you, in advance, to the extent reasonably practical and permitted by law), (e) to our affiliates and to our and their respective investors, limited partners, lenders, managed accounts and rating agencies and to the respective officers, directors, employees, legal counsel, investment advisors, independent auditors, professionals and other experts or agents of each of the foregoing (collectively, "Representatives") who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential (and each of us shall be responsible for our respective Representatives' compliance with this paragraph), (f) to any of our respective affiliates and their Representatives (provided that any such affiliate or Representative is advised of its obligation to retain such information as confidential, and each of us shall be responsible for our respective affiliates' and their Representatives' compliance with this paragraph) to be utilized solely in connection with rendering services or providing commitments to you or the Borrower in connection with the Transactions, (g) to the extent any such information becomes publicly available other than by reason of disclosure by us, our respective affiliates or any of our respective Representatives in breach of this Commitment Letter, (h) to the extent that such information is received by us from a third party that is not, to our knowledge, subject to confidentiality obligations owing to you, the Sponsor, the Target or any of your or their respective affiliates or related parties, (i) to the extent that such information is independently developed by us, so long as not based on information obtained in a manner that would otherwise violate this provision (j) for purposes of establishing a "due diligence" defense (in which case we shall promptly notify you, in advance, to the extent permitted by law) or (k) to the extent that such information was already in our possession prior to any duty or other undertaking of confidentiality entered into in connection with the Transactions; provided that such information was not furnished to you by a source known by you to be bound by a confidentiality agreement with the Company; provided, further, that the disclosure of any such information to any Lenders, prospective Lenders, participants, prospective participants, hedging counterparties or prospective hedging counterparties referred to above shall be made subject to the acknowledgment and acceptance by such Lender, prospective Lender, participant, prospective participant, hedging counterparty or prospective hedging counterparty that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and us, including, without limitation, as agreed in any confidential information memorandum or other marketing materials) in accordance with our standard syndication processes or customary market standards for dissemination of such type of information; provided, further, that no disclosure of any information may be made to any Disqualified Lender (it being understood that this provision shall not have retroactive application with respect to previously disclosed information). The provisions of this paragraph shall automatically terminate and be superseded by the confidentiality provisions to the extent covered in the definitive documentation for the Facilities upon the initial funding thereunder and shall in any event automatically terminate two years following the date of this Commitment Letter. Please note that we and our affiliates do not provide tax, accounting or legal advice. Notwithstanding any other provision herein, this Commitment Letter does not limit the disclosure of any tax strategies to the extent required by applicable law.
13. Surviving Provisions.
The compensation, reimbursement, indemnification, absence of fiduciary relationship, confidentiality, information, syndication, jurisdiction, governing law and waiver of jury trial provisions contained herein and in the Fee Letter and the provisions of Section 8 of this Commitment Letter shall remain in full force and effect in accordance with their terms notwithstanding the termination of this Commitment Letter or the Initial Lenders' commitments hereunder and our agreements to perform the services described herein; provided, that your obligations under this Commitment Letter and the Fee Letter, other than those provisions relating to confidentiality, compensation and to the syndication of the Facilities, shall automatically terminate and be superseded by the definitive documentation relating to the Facilities upon the initial funding thereunder, and you shall automatically be released from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the Initial Lenders' commitments with respect to the Facilities (or portion thereof pro rata among the Initial Lenders) hereunder at any time subject to the preceding sentence.
14. PATRIOT Act Notification, etc.
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 the requirements of 31 C.F.R. §1010.230 (the "Beneficial Ownership Regulation"), each Lender is 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 such Lender to identify the Borrower and the Guarantors in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to each Financial Institution and each Lender.
15. Acceptance and Termination.
If the foregoing correctly sets forth our agreement with you, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to us executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on December 21, 2020. The Initial Lenders' commitments hereunder, and our agreements to perform the services described herein, will expire automatically and without further action or notice and without further obligation to you at such time in the event that we have not received such executed counterparts in accordance with the immediately preceding sentence. In the event that (i) the Closing Date does not occur on or before the date that is five business days after the End Date (as defined in the Acquisition Agreement as in effect on the date hereof and as it may be extended in accordance with the terms of the Acquisition Agreement as in effect on the date hereof), (ii) the Acquisition Agreement is terminated (and such termination is valid and legally binding) without the consummation of the Acquisition (as defined in the Transaction Description) having occurred or (iii) the closing of the Acquisition occurs (x) in the case of the Senior Facilities, without the use of the Senior Facilities or (y) in the case of the Senior Unsecured Bridge Facility, without the use of the Senior Unsecured Bridge Facility, then this Commitment Letter and the Initial Lenders' commitments hereunder, and our agreements to perform the services described herein, shall automatically terminate with respect to the applicable Facility without further action or notice and without further obligation to you unless we shall, in our discretion, agree to an extension.
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We are pleased to have been given the opportunity to assist you in connection with the financing for the Acquisition.
By: /s/ Charles D. Smith
Name: Charles D. Smith
Title: Managing Director
[Commitment Letter - Signature Page]
By: /s/ George Lee
Name: George Lee
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Celine Catherin
Name: Celine Catherin
By: /s/ John Huntington
Name: John Huntington
DEUTSCHE BANK AG CAYMAN
ISLANDS BRANCH
DEUTSCHE BANK SECURITIES INC.
Title: John Huntington
Name: Managing Director
MIZUHO BANK, LTD.
By: /s/ Raymond Ventura
Name: Raymond Ventura
Accepted and agreed to as of the date first above written:
By: /s/ Robert Kalsow-Ramos
Name: Robert Kalsow-Ramos
Title: Director
Transaction Description2
The Company intends to enter into the Acquisition Agreement with the Target. Pursuant to the Acquisition Agreement, the Company will, directly or indirectly, acquire the Target by way of a scheme of arrangement pursuant to Part 26 of the United Kingdom Companies Act 2006 (the "Acquisition"). Upon consummation of the Acquisition, Target will be a direct wholly-owned subsidiary of the Company. After the consummation of the Acquisition, a direct or indirect wholly-owned subsidiary of the Company organized under the laws of the United States ("US Merger Sub") will be merged with and into a direct or indirect wholly-owned subsidiary of the Target organized under the laws of the United States (the "US Opco"), with the US Opco surviving such merger as a direct or indirect wholly-owned subsidiary of the Company (such merger, the "US Merger").
Holdings will be controlled by investment funds, or affiliates of investment funds, advised, managed or controlled by Apollo Global Management, Inc. or its affiliates (collectively, the "Sponsor") and, at the Sponsor's election, certain co-investors arranged or designated by the Sponsor (collectively with the Sponsor and any roll-over equityholders, the "Investors").
The term "Borrower" means (i) prior to the US Merger, US Merger Sub and (ii) thereafter, the US Opco, as the survivor of the US Merger.
The term "Holdings" means the direct parent of the Company.
In connection with the Acquisition, it is intended that:
1. the Investors will contribute, directly or indirectly, an amount (the "Equity Contribution") to Holdings in the form of common equity, or other equity on terms reasonably acceptable to the Lead Arrangers, which would cause the equity interests of Holdings (including roll-over or contributed equity), to represent not less than the Equity Contribution Percentage (as defined in the Fee Letter) of the total pro forma consolidated capitalization of Holdings (to be defined as the sum of (x) 100% of the aggregate principal amount of funded debt for borrowed money (excluding for purposes of this determination increased levels of debt as a result of all OID and/or upfront fees in respect of the Facilities, the Senior Unsecured Securities (as defined in the Fee Letter) and/or the Senior Unsecured Notes in connection with the exercise of the "Market Flex" and/or "Securities Demand" provisions under the Fee Letter, any amounts borrowed under the Revolving Facility on the Closing Date to fund working capital requirements of the Company and its subsidiaries and any outstanding letters of credit (to the extent undrawn)) net of unrestricted cash and (y) the total amount of equity (including roll-over or contributed equity)); provided that the Sponsor shall directly or indirectly (whether by contract or otherwise) control not less than a majority of the voting and economic interests in Holdings on the Closing Date after giving effect to the Transactions;
2 All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Commitment Letter to which this Exhibit is attached or in the other Exhibits thereto.
Exh. A-1
2. the Borrower will obtain (i) the senior secured first lien term loan facility described in the Senior Facilities Term Sheet in an aggregate principal amount of $1,200 million (the "Term Facility") and (ii) the senior secured first lien revolving credit facility described in the Senior Facilities Term Sheet in an aggregate principal amount of $300 million (the "Revolving Facility" and, together with the Term Facility, the "Senior Facilities");
3. the Borrower will, at its option, either (i) issue senior unsecured notes (the "Senior Unsecured Notes") in a Rule 144A or other private placement yielding $450 million in aggregate gross cash proceeds and/or (ii) if any or all of the Senior Unsecured Notes are not issued on or prior to the Closing Date and the proceeds thereof made available to the Borrower on the Closing Date, borrow up to such unissued or unavailable amount in the form of senior unsecured bridge loans (the "Senior Unsecured Bridge Loans") under a new senior unsecured bridge loan facility described in the Senior Unsecured Bridge Facility Term Sheet (the "Senior Unsecured Bridge Facility");
4. indebtedness under (i) the Term Loan Credit Agreement, dated as of June 29, 2020, by and among Cardtronics plc, Cardtronics USA, Inc., the other obligors party thereto, the financial institutions party thereto as lenders and JPMorgan Chase Bank, N.A., as administrative agent, (ii) the Second Amended and Restated Credit Agreement, dated as of November 19, 2018 (as amended on September 19, 2019, May 29, 2020 and June 29, 2020), by and among Cardtronics plc, the other obligors party thereto, the financial institutions party thereto as lenders and JPMorgan Chase Bank, N.A., as administrative agent, and (iii) the Indenture, dated as of April 4, 2017, by and among Cardtronics, Inc., as an issuer, Cardtronics USA, as an issuer, Cardtronics plc and the other guarantors party thereto and Wells Fargo Bank, National Association, as trustee, will be repaid, prepaid, repurchased, redeemed, defeased or discharged (and any liens related thereto released) or arrangements reasonably satisfactory to the Lead Arrangers for such repayment, prepayment, repurchase, redemption, defeasance, discharge and/or release shall have been made (other than in respect of letters of credit that are either rolled into or back-stopped by letter(s) of credit issued under the Revolving Facility or cash collateralized by the Borrower) and all commitments thereunder will be terminated (and related security interests will be terminated and released) on or prior to the Closing Date; and
5. fees and expenses incurred in connection with the foregoing will be paid.
The Acquisition and the other transactions described in this Exhibit A are collectively referred to herein as the "Transactions".
Summary of Principal Terms and Conditions3
Borrower: As set forth in Exhibit A to the Commitment Letter. In addition, the Company or a direct or indirect wholly-owned subsidiary of the Company organized under the laws of England and Wales will be an additional borrower under the Revolving Facility.
In addition, on or after the Closing Date, with the consent of the revolving facility lenders, additional wholly-owned subsidiaries of the Company organized in jurisdictions to be agreed with the revolving facility lenders may accede as additional borrowers under the Revolving Facility (each, an "Additional Borrower"), provided all 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 Beneficial Ownership Certification (as defined below) for such entities that qualify as a "legal entity customer" under the Beneficial Ownership Regulation (as defined below) has been delivered to any revolving facility lender that has requested such certification (in each case, at least three business days prior to the addition of such entity as an additional borrower).
Transactions: As set forth in Exhibit A to the Commitment Letter.
Agent: RBC, acting through one or more of its branches or affiliates, will act as administrative agent and collateral agent for the Senior Facilities (in such capacities, the "Senior Facilities Agent") for a syndicate of banks, financial institutions and other institutional lenders reasonably acceptable to the Borrower (together with the Initial Lenders, the "Lenders"), and will perform the duties customarily associated with such roles.
Arrangers: RBCCM, Barclays, DBSI and Mizuho will act as joint lead arrangers for the Senior Facilities (together with any additional lead arrangers appointed by the Borrower, each in such capacity, an "Arranger" and, collectively, the "Arrangers"), and will perform the duties customarily associated with such role. Other joint lead arrangers may be appointed by the Borrower as contemplated in the Commitment Letter.
Syndication Agent: At the option of the Borrower, one or more financial institutions identified by the Borrower (in such capacity, the "Syndication Agent").
Documentation Agent: At the option of the Borrower, one or more financial institutions identified by the Borrower (in such capacity, the "Documentation Agent").
3 All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Commitment Letter to which this Term Sheet is attached or in the other Exhibits thereto.
Exh. B-1
Definitive Documentation: The definitive documentation for the Senior Facilities shall, except as otherwise set forth herein, be based on and consistent with the Documentation Precedent (as defined in the Fee Letter).
Senior Facilities: (A) A senior secured term loan facility in an aggregate principal amount of $1,200 million (the "Term Facility" and the loans thereunder, the "Term Loans"). The Term Loans will be funded in full on the Closing Date in United States Dollars.
(B) A senior secured revolving credit facility in an aggregate principal amount of $300 million (together with the swingline facility referred to below, the "Revolving Facility" and, together with the Term Facility, the "Senior Facilities"), under which the Borrower may borrow loans from time to time (the "Revolving Loans") and which will be available through a subfacility in the form of letters of credit for the account of the Company or any of its subsidiaries as described below in an amount not less than the L/C Subfacility Amount (as defined in the Fee Letter). At the Borrower's option, the letter of credit subfacility may be used to issue either letters of credit or, through an issuer's affiliates, bank guarantees (and bank guarantees and trade letters of credit shall be subject to the internal policies and procedures of each Issuing Bank (as defined below) including if such internal policies and procedures do not permit the issuance of bank guarantees or trade letters of credit), and references to letters of credit in this Senior Facilities Term Sheet will also apply to bank guarantees. The Revolving Facility will be funded in United States Dollars, Euros, Pounds, Canadian Dollars or other currencies to be agreed by each Revolving Lender.
In connection with the Revolving Facility, the Senior Facilities Agent (in such capacity, the "Swingline Lender") will make available to the Borrower, upon same-day notice, a swingline facility under which the Borrower may make short-term borrowings in United States Dollars, Euros, Pounds or Canadian Dollars of up to an aggregate amount to be agreed upon; provided that, in the case of swingline loans in Euros or Pounds, such loans shall be available only to a borrower organized under the laws of England and Wales and shall require notice to be provided to the Senior Facilities Agent prior to a time to be agreed during London business hours. Except for purposes of calculating the commitment fee described in Annex B-I hereto, such swingline borrowings will reduce availability under the Revolving Facility on a dollar-for-dollar basis. Each Lender under the Revolving Facility shall, promptly upon request by the Swingline Lender, fund to the Swingline Lender its pro rata share of any swingline borrowings. At the Senior Facilities Agent's election, in lieu of the swingline facility, the definitive documentation may provide that ABR and Canadian Prime Rate borrowings shall be made to the Borrower under the Revolving Facility upon same day notice.
The definitive documentation for the Senior Facilities will include customary provisions consistent with the Documentation Precedent to protect the Swingline Lender in the event any Lender under the Revolving Facility is a "Defaulting Lender" (to be defined in a manner consistent with the Documentation Precedent).
Incremental Facilities: The Borrower will be permitted to increase the Revolving Facility or Term Facility or add one or more additional revolving or term loan credit facilities (collectively, the "Incremental Facilities");
provided that:
(i) the aggregate principal amount of all Incremental Facilities, which may be funded in United States Dollars, Euros, Pounds and/or Canadian Dollars as the Borrower may elect, outstanding at any time shall not exceed the sum of (x) the Incremental Dollar Amount (as defined in the Fee Letter) plus (y) any amounts so long as, in the case of this clause (y), on the date of incurrence thereof (or, at the option of the Borrower, on the date of establishment of the commitments in respect thereof), (i) in the case of loans under such Incremental Facilities secured by liens on the Collateral (as defined below) that rank pari passu with the liens on the Collateral securing the Term Facility, the ratio of funded debt outstanding under the Term Facility plus all other funded debt outstanding that is secured by a lien on the Collateral that ranks pari passu with the liens on the Collateral securing the Term Facility (excluding any funded debt in respect of revolving loans that were incurred for any working capital purposes and revolving loans incurred on such date of incurrence (collectively, the "Excluded Revolving Loans") and net of unrestricted cash and cash equivalents) to EBITDA (to be defined in a manner consistent with the Documentation Precedent) (the "Net First Lien Leverage Ratio") on a Pro Forma Basis (to be defined in a manner consistent with the Documentation Precedent) will be no greater than the First Lien Incurrence Ratio Level (as defined in the Fee Letter)4 (calculated on the date of incurrence without netting the cash proceeds of such Incremental Facility on the date of incurrence and assuming on the date of incurrence in the case of any Incremental Facilities constituting revolving credit facilities, that such incurred facilities were fully drawn on the date of effectiveness thereof), (ii) in the case of loans under such Incremental Facilities secured by liens on the Collateral that rank junior to the liens on the Collateral securing the Term Facility, the ratio of all funded debt outstanding that is secured by a lien on the Collateral (excluding any Excluded Revolving Loans and net of unrestricted cash and cash equivalents) to EBITDA (the "Net Secured Leverage Ratio") on a Pro Forma Basis will be no greater than the Secured Leverage Incurrence Ratio Level (as defined in the Fee Letter) (calculated on the date of incurrence without netting the cash proceeds of such Incremental Facility on the date of incurrence and assuming on the date of incurrence in the case of any Incremental Facilities constituting revolving credit facilities, that such incurred facilities were fully drawn on the date of effectiveness thereof) and (iii) in the case of any Incremental Facilities that are unsecured, either (1) the ratio of EBITDA to total cash interest expense (excluding interest expense in respect of Excluded Revolving Loans) (the "Fixed Charge Coverage Ratio") on a Pro Forma Basis is not less than 2.00 to 1.00 or (2) the ratio of all funded debt outstanding (excluding any Excluded Revolving Loans and net of unrestricted cash and cash equivalents) to EBITDA (the "Net Total Leverage Ratio") (calculated on the date of incurrence without netting the cash proceeds of such Incremental Facility on the date of incurrence and assuming on the date of incurrence in the case of any Incremental Facilities constituting revolving credit facilities, that such incurred facilities were fully drawn on the date of effectiveness thereof) on a Pro Forma Basis will be no greater than the Total Leverage Incurrence Ratio Level (as defined in the Fee Letter); provided that, with respect to any Incremental Facility incurred in connection with an acquisition, investment or new project, the requirements of this clause (y) shall be satisfied if, with respect to the type of debt being incurred, the applicable ratio set forth in clause (y) is satisfied or is no worse on a Pro Forma Basis than such ratio in effect immediately prior to such acquisition, investment or new project (and, for such purposes of the calculation in this proviso, disregarding an aggregate outstanding principal amount of funded debt not to exceed the Incremental Acquisition Debt Cap (as defined in the Fee Letter)) plus (z) the aggregate amount of any voluntary prepayments, reductions, repurchases, redemptions and other retirements of the Term Facility and permanent reductions in the commitments in respect of the Revolving Facility after the Closing Date and prior to such time other than those funded with the proceeds of long-term indebtedness;
4 For purposes of all leverage ratios, if additional debt is incurred to fund any OID or upfront fees in connection with the exercise of the "Market Flex" and/or "Securities Demand" provisions under the Fee Letter, then such leverage ratios will be modified upward to reflect any such additional debt.
(ii) to the extent required by the applicable incremental assumption agreement, no default or event of default shall have occurred and be continuing or would result therefrom (but, in any event, if any such Incremental Facility is established for a purpose other than an acquisition, investment or new project that is permitted by the definitive documentation for the Senior Facilities, no payment or bankruptcy event of default shall have occurred and be continuing or would result therefrom);
(iii) the loans under such additional credit facilities shall be senior secured obligations and shall rank pari passu with or, at the Borrower's option, junior in right of security with the liens on the Collateral securing the Term Facility or be unsecured; provided, that, (A) if such additional credit facilities rank junior in right of security with the liens on the Collateral securing the Term Facility or are unsecured, (x) such additional credit facilities will be established as a separate facility from the Senior Facilities, (y) in the case of additional credit facilities that rank junior in right of security with the liens on the Collateral securing the Term Facility, such additional facilities shall be subject to an intercreditor agreement consistent with the Documentation Precedent and (z) for the avoidance of doubt, such additional credit facilities will not be subject to clause (vii) below and (B) there shall be no borrowers or guarantors in respect of such Incremental Facilities that are not either the Borrower or a Guarantor, and such Incremental Facilities shall not be secured by any assets that do not constitute Collateral;
(iv) the additional revolving loan commitments will mature no earlier than the Revolving Facility and shall have no amortization and all other terms of any such additional revolving loan commitments (other than pricing, maturity, participation in mandatory prepayments or commitment reductions or ranking as to security) shall be substantially similar to the Revolving Facility or otherwise reasonably acceptable to the Senior Facilities Agent; provided that the limitation set forth in this clause (iv) with respect to maturity shall not apply to Incremental Facilities in an aggregate principal amount outstanding not to exceed the Incremental Inside Maturity Date Debt Cap (as defined in the Fee Letter);
(v) the loans under the additional term loan facilities will mature no earlier than, and will have a weighted average life to maturity no shorter than, that of the Term Facility and all other terms of any such additional term loan facility (other than pricing, amortization, maturity, participation in mandatory prepayments or ranking as to security) shall be substantially similar to the Term Facility or otherwise reasonably acceptable to the Senior Facilities Agent; provided that the limitations set forth in this clause (v) with respect to maturity and weighted average life to maturity shall not apply to Incremental Facilities in an aggregate principal amount outstanding not to exceed the Incremental Inside Maturity Date Debt Cap;
(vi) with respect to mandatory prepayments of term loans and borrowings and prepayments and commitment reductions of revolving loans, the Incremental Facilities shall not participate on a greater than pro rata basis than the Term Facility and the Revolving Facility, respectively; and
(vii) the interest rate margins and original issue discount or upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Facility shall be determined by the Borrower and the lenders thereunder; provided that if the "yield" (to be defined to include upfront fees and original issue discount on customary terms and any interest rate floor but excluding any structuring, ticking, commitment, amendment and arranger fees or similar fees) of any Incremental Facility that is a broadly syndicated floating rate term loan facility (an "Incremental Term Facility") that is in an aggregate principal amount in excess of the MFN Exception Amount (as defined in the Fee Letter) and secured by liens on the Collateral that rank pari passu with the liens on the Collateral securing the Term Facility exceeds the "yield" on the Term Facility by more than 75 basis points, the applicable margins for the Term Facility shall be increased to the extent necessary so that the "yield" on the Term Facility is 75 basis points less than the "yield" on such Incremental Term Facility; provided that, if Adjusted LIBOR (as defined in Annex B-I hereto) in respect of such Incremental Term Facility includes a floor greater than the floor applicable to the Term Facility and such floor is greater than Adjusted LIBOR in effect for a 3-month interest period at such time, such increased amount (above the greater of such floor and such Adjusted LIBOR) shall be equated to interest rate for purposes of determining the "yield" applicable to such Incremental Term Facility; provided, further, that this clause (vii) shall not be applicable to any Incremental Term Facility that (w) is incurred more than 6 months after the Closing Date, (x) is established for purposes of financing an acquisition, investment or new project, (y) has a maturity date that is at least two years after the maturity date of the Term Facility or (z) is initially incurred under subclause (x) or subclause (z) of clause (i) above.
Purpose: (A) The proceeds of the Term Facility will be used by the Borrower, together with the proceeds of the Senior Unsecured Notes, Senior Unsecured Bridge Loans and/or the Senior Unsecured Securities, the Equity Contribution and cash on hand of the Borrower, the Target and their subsidiaries, to finance the Transactions.
(B) The proceeds of loans under the Revolving Facility will be used by the Borrower from time to time on or after the Closing Date for general corporate purposes (including without limitation, for permitted acquisitions, investments, new projects, capital expenditures and transaction costs).
Refinancing Facilities: The definitive documentation for the Senior Facilities will permit the Borrower to refinance loans under the Term Facility or replace commitments under the Revolving Facility from time to time, in whole or part, with one or more new term facilities (each, a "Refinancing Term Facility") or new revolving credit facilities (each, a "Refinancing Revolving Facility"; the Refinancing Term Facilities and the Refinancing Revolving Facilities are collectively referred to as "Refinancing Facilities"), respectively, under the definitive documentation for the Senior Facilities with the consent of the institutions providing such Refinancing Term Facility or Refinancing Revolving Facility or with one or more additional series of senior unsecured notes or loans or senior secured notes or loans that will be secured by the Collateral on a pari passu basis with the liens on the Collateral securing the Senior Facilities or secured notes or loans that are junior in right of security with the liens on the Collateral securing the Senior Facilities (any such notes or loans, "Refinancing Notes"); provided that (i) any Refinancing Term Facility or Refinancing Notes do not mature prior to the maturity date of, or have a shorter weighted average life than, or, with respect to notes, have mandatory prepayment provisions (other than related to customary asset sale and change of control offers) that could result in prepayments of such Refinancing Notes prior to, the loans under the Term Facility being refinanced; provided that the limitations set forth in this clause (i) with respect to maturity and weighted average life to maturity shall not apply to Refinancing Notes or Refinancing Term Facilities in an aggregate principal amount outstanding not to exceed the Incremental Inside Maturity Date Debt Cap, (ii) any Refinancing Revolving Facility does not mature (or require commitment reductions or amortization) prior to the maturity date of the revolving commitments being replaced, provided that the limitations set forth in this clause (ii) with respect to maturity and weighted average life to maturity shall not apply to Refinancing Revolving Facilities in an aggregate principal amount outstanding not to exceed the Incremental Inside Maturity Date Debt Cap, (iii) there shall be (1) no borrowers or guarantors in respect of any Refinancing Facility or Refinancing Notes that are not either the Borrower or a Guarantor and (2) no collateral in respect of any Refinancing Facility or Refinancing Notes that is not Collateral, (iv) the other terms and conditions, taken as a whole, of any such Refinancing Term Facility, Refinancing Revolving Facility or Refinancing Notes (excluding pricing (as to which no "most favored nation" clause shall apply) and optional prepayment or redemption terms) are substantially similar to, or not materially less favorable to the Borrower and its subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term Facility or revolving commitments being refinanced or replaced (except for covenants or other provisions applicable only to periods after the latest final maturity date of the Term Facility and revolving credit commitments existing at the time of such refinancing or that are otherwise reasonably satisfactory to the Senior Facilities Agent), (v) with respect to (1) Refinancing Notes secured by liens on the Collateral or (2) any Refinancing Term Facility secured by liens on the Collateral that are junior in priority to the liens on the Collateral securing the Senior Facilities, such liens will be subject to an intercreditor agreement consistent with the Documentation Precedent and (vi) the aggregate principal amount of any Refinancing Facility or Refinancing Notes shall not be greater than the aggregate principal amount (or committed amount) of the Term Facility or Revolving Facility (as applicable) being refinanced or replaced plus any fees, premiums, original issue discount and accrued interest associated therewith, and costs and expenses related thereto, and such Term Facility or Revolving Facility being refinanced or replaced will be permanently reduced substantially simultaneously with the issuance thereof.
Availability: (A) The full amount of the Term Facility must be drawn in a single drawing on the Closing Date. Amounts borrowed under the Term Facility that are repaid or prepaid may not be reborrowed.
(B) From and after the Closing Date, the Revolving Facility will be available at any time prior to the final maturity of the Revolving Facility, in minimum principal amounts and upon notice to be agreed upon but consistent with the Documentation Precedent. Amounts repaid or prepaid under the Revolving Facility may be reborrowed; provided that the amount of loans under the Revolving Facility that may be borrowed on the Closing Date will be limited to an amount sufficient to fund (i) any OID or upfront fees required to be funded on the Closing Date pursuant to the "Market Flex" and/or "Securities Demand" provisions in the Fee Letter, (ii) any ordinary course working capital requirements of the Company and its subsidiaries on the Closing Date and (iii) an additional amount; provided, further, that amounts drawn on the Closing Date under clause (iii) shall not exceed the Closing Date Revolver Additional Amount (as defined in the Fee Letter).
(C) The full amount of the letter of credit subfacility shall be available on and after the Closing Date.
Interest Rates and Fees: As set forth on Annex B-I hereto.
Default Rate: With respect to overdue principal, the applicable interest rate plus 2.00% per annum, and with respect to any other overdue amount (including overdue interest), the interest rate applicable to ABR loans (as defined in Annex B-I hereto) plus 2.00% per annum and in each case, shall be payable on demand.
Letters of Credit: Letters of credit under the Revolving Facility will be issued by the Senior Facilities Agent and, if included as an additional Issuing Bank, one or more Lenders acceptable to the Borrower and the Senior Facilities Agent (each, an "Issuing Bank"); provided, that each Lender that holds commitments under the Revolving Facility shall have a letter of credit commitment that is proportionate with its commitment under the Revolving Facility and shall issue letters of credit pro rata based on such Revolving Facility commitment; provided, further, that no Issuing Bank shall be required to issue trade or commercial letters of credit. Each letter of credit shall expire not later than the earlier of (a) 12 months after its date of issuance (or such longer period as may be agreed by the relevant Issuing Bank and the Borrower) and (b) the fifth business day prior to the final maturity of the Revolving Facility; provided, however, that any letter of credit may provide for renewal thereof for additional periods of up to 12 months (which in no event shall extend beyond the date referred to in clause (b) above, except to the extent cash collateralized or backstopped pursuant to arrangements reasonably acceptable to the relevant Issuing Bank). Existing letters of credit may be rolled over or back-stopped under the Revolving Facility on the Closing Date. Letters of credit will be issued by an Issuing Bank subject to the policies and procedures applicable to such Issuing Bank. Letters of credit shall be issued in United States Dollars, Euros, Pounds, Canadian Dollars or other currencies to be agreed.
Drawings under any letter of credit shall be reimbursed by the Borrower on terms consistent with the Documentation Precedent. To the extent that the Borrower does not reimburse the Issuing Bank on such time frame, the Lenders under the Revolving Facility shall be irrevocably obligated to reimburse the Issuing Bank pro rata based upon their respective Revolving Facility commitments.
The issuance of all letters of credit shall be subject to the customary procedures of the relevant Issuing Bank.
The definitive documentation for the Senior Facilities will include customary provisions consistent with the Documentation Precedent to protect the Issuing Bank in the event any Lender under the Revolving Facility is a Defaulting Lender.
Final Maturity and Amortization: (A) Term Facility:
The Term Facility will mature on the date that is seven years after the Closing Date, and will amortize in equal quarterly installments (commencing with the end of the first full fiscal quarter ending after the Closing Date) in an aggregate annual amount equal to 1.0% of the original principal amount of the Term Facility with the balance payable on the maturity date of the Term Facility.
(B) Revolving Facility:
The Revolving Facility will mature and the commitments thereunder will terminate on the date that is five years after the Closing Date.
Guarantees: All obligations of the Borrower under the Senior Facilities and, at the option of the Borrower, under any interest rate protection or other hedging arrangements entered into with the Senior Facilities Agent, any Arranger, an entity that is a Lender or agent at the time of such transaction (or on the Closing Date, if applicable), or any affiliate of any of the foregoing and, consistent with the Documentation Precedent, certain other designated financial institutions ("Hedging Arrangements"), or any cash management arrangements with any such person ("Cash Management Arrangements") will be, subject to the last paragraph of Exhibit D, unconditionally guaranteed (the "Guarantees") by (i) Holdings, (ii) the Company and (iii) each existing and subsequently acquired or organized wholly-owned subsidiary of the Company organized under the laws of a Security Jurisdiction (as defined below) (other than the Borrower) (such subsidiaries, the "Subsidiary Guarantors" and, together with Holdings and the Company, the "Guarantors"), subject to exceptions and qualifications consistent with the Documentation Precedent and other exceptions and qualifications to be agreed upon, including, without limitation, (a) unrestricted subsidiaries, (b) Immaterial Subsidiaries (to be defined in a manner consistent with the Documentation Precedent), (c) where the Company or any subsidiary is prohibited by applicable law, rule, regulation or contract (with respect to any such contractual restriction, (1) in the case of the Company and subsidiaries owned on the Closing Date, only to the extent existing on the Closing Date and (2) in the case of subsidiaries acquired from a third party after the Closing Date, only to the extent existing on the date the applicable person becomes a direct or indirect subsidiary of the Company and, in each of (1) and (2), not entered into in contemplation thereof (other than in connection with the incurrence of indebtedness of the type contemplated by clause (ii) of paragraph 4 under "Negative Covenants" below)) from guaranteeing the Senior Facilities or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee (unless such consent, approval, license or authorization has been received), (d) any subsidiary for which the providing of a Guarantee would reasonably be expected to result in a material adverse tax consequence to the Company or one of its subsidiaries as determined in good faith by the Borrower, (e) any subsidiary of the Company that owns no material assets other than the equity interests of one or more subsidiaries of the Company organized under the laws of a jurisdiction other than a Security Jurisdiction that are "controlled foreign corporations" within the meaning of Section 957(a) of the Internal Revenue Code of 1986, as amended ("CFCs") and/or one or more FSHCOs (a "FSHCO"), (f) special purpose receivables or securitization entities designated by the Borrower, (g) in the case of any obligation under any Hedging Arrangement that constitutes a "swap" within the meaning of section 1(a)(947) of the Commodity Exchange Act, any subsidiary of the Company that is not an "Eligible Contract Participant" as defined under the Commodity Exchange Act and (h) in each case, any subsidiary of the foregoing subsidiaries excluded under clauses (a) through (g) or any subsidiary of a subsidiary organized under the laws of a jurisdiction other than a Security Jurisdiction.
Exh. B-10
Notwithstanding the foregoing, (1) all guarantees shall be subject to any applicable general mandatory statutory limitations, fraudulent preference, "thin capitalization" rules, exchange control restrictions, applicable maintenance of capital, corporate benefit, financial assistance and similar laws, rules and regulations and customary guarantee limitation language in the relevant jurisdiction, (2) the Company and its subsidiaries shall be excluded from the guarantee requirements in circumstances where (i) such requirements would contravene any legal prohibition (including but not limited to financial assistance laws, rules and regulations) in any relevant jurisdiction or result in a risk of personal or criminal liability on the part of any officer, director, member or manager of the Company or its subsidiaries or (ii) in relation to the Company's subsidiaries only, the Borrower and the Senior Facilities Agent reasonably agree that the cost or other consequence of providing such a guarantee is excessive in relation to the value afforded thereby and (3) each subsidiary of the Company that is a parent company of the Borrower shall be a wholly-owned subsidiary of the Company and shall be a Subsidiary Guarantor (notwithstanding anything in this paragraph to the contrary, but subject to the limitations set forth in the second to last paragraph of this section).
In furtherance of the provisions of clause (2)(i) of the immediately preceding paragraph, no subsidiary shall be required to become a Subsidiary Guarantor where the Borrower and the Senior Facilities Agent reasonably agree that the limit on recoveries recorded in the relevant guarantee renders the realizable value of the guarantee such that there is no material commercial benefit to the proposed beneficiaries of such guarantee in the provision of such guarantee.
For the avoidance of doubt, no guarantee shall be provided by the Company or any of its subsidiaries to which the United Kingdom Companies Act 2006 applies prior to the Company's re-registration as a private company after the Closing Date and any guarantee provided by the Company or any of its subsidiaries will not apply to any liability to the extent that it would result in such guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the United Kingdom Companies Act 2006.
"Security Jurisdiction" means (i) the United States of America, any state thereof or the District of Columbia (the "United States") and (ii) England and Wales ("England and Wales").
Security: Subject to the exceptions described below and other exceptions to be agreed upon, the Senior Facilities, the Guarantees, and, at the option of the Borrower, any Hedging Arrangements and any Cash Management Arrangements will be, subject to the last paragraph of Exhibit D, secured on a perfected first-priority (subject to permitted liens and relevant law and practice in local jurisdictions) basis by (a) all of the equity interests of the Company directly held by Holdings and (b) substantially all the owned assets of the Borrower, each Additional Borrower, the Company and each Subsidiary Guarantor, in each case, whether owned on the Closing Date or thereafter acquired (collectively, the "Collateral"), including but not limited to: (1) a perfected first- priority pledge of or charge over all the equity interests directly held by the Borrower, each Additional Borrower the Company or any Subsidiary Guarantor (which pledge, in the case of any direct or indirect subsidiary of a Guarantor organized under the laws of the United States which subsidiary is a CFC or a FSHCO organized under the laws of a jurisdiction other than a Security Jurisdiction, shall be limited to 65% of the voting capital stock and 100% of the non-voting capital stock of such subsidiary) and (2) perfected first-priority security interests in, and/or mortgages on, substantially all other owned tangible and intangible assets of the Borrower, each Additional Borrower, the Company and each Subsidiary Guarantor (with all required mortgages and insurance certificates and endorsements being permitted to be delivered on a post-closing basis). Security interests granted by any entity organized or incorporated in England and Wales shall be limited to a fixed charge over equity interests of any subsidiaries and a floating charge over all other assets.
Notwithstanding anything to the contrary, the Collateral shall exclude the following (collectively, the "Excluded Property"): (i) any fee- owned real property with a fair market value of less than an amount to be agreed and all leasehold interests in real property; (ii) motor vehicles and other assets subject to certificates of title, letter of credit rights (other than to the extent such rights can be perfected by filing a UCC-1 financing statement) and commercial tort claims with a value of less than an amount to be agreed; (iii) pledges and security interests prohibited by applicable law, rule, regulation (including but not limited to financial assistance laws, rules and regulations) in any relevant jurisdiction or contractual obligation (with respect to any such contractual restriction permitted under the Senior Facilities and binding on such assets, to the extent existing on the Closing Date or on the date of the acquisition thereof or entered into in connection with the incurrence of indebtedness of the type contemplated by clause (ii) of paragraph 4 under "Negative Covenants" below (but not entered into in contemplation thereof (other than in connection with the incurrence of indebtedness of the type contemplated by clause (ii) of paragraph 4 under "Negative Covenants" below))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received); (iv) equity interests in any person other than wholly-owned subsidiaries to the extent the pledge thereof is not permitted by the terms of such person's organizational documents, joint venture agreements or shareholder agreements or similar contractual obligation and other Excluded Securities (to be defined in a manner consistent with the Documentation Precedent); (v) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower; (vi) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code; (vii) those assets as to which the Senior Facilities Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby; (viii) any governmental or regulatory licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code; (ix) "intent-to-use" trademark applications prior to the filing of a statement of use; (x) assets subject to liens securing permitted securitization financings (including receivables financings); (xi) other customary exclusions under applicable local law or in applicable local jurisdictions; (xii) any segregated accounts or funds held or received on behalf of third parties (other than the Borrower or any Guarantor); (xiii) any equipment or other asset subject to liens securing permitted acquired debt (limited to the acquired assets), sale and leaseback transactions, capital lease obligations, finance lease obligations or other purchase money debt, if the contract or other agreement providing for such debt, sale and leaseback transaction, capital lease obligation, finance lease obligation or purchase money debt prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such indebtedness and prohibition or requirement is permitted under the definitive documentation for the Senior Facilities; and (xiv) other exceptions to be mutually agreed upon. In addition, in no event shall (1) control agreements or control, lockbox or similar arrangements be required, (2) landlord, mortgagee and bailee waivers be required, (3) notices be required to be sent to insurers, account debtors or other contractual third parties prior to the occurrence and during the continuance of an event of default or (4) security documents governed by, or perfection actions under, the laws of a jurisdiction other than a Security Jurisdiction be required. Notwithstanding the foregoing, the guarantee by Holdings will be recourse solely to the stock of the Company directly owned by Holdings.
In furtherance of the provisions of clause (vii) of the immediately preceding paragraph, no security shall be pledged by any Subsidiary Guarantor where the Borrower and the Senior Facilities Agent reasonably agree that the limit on recoveries recorded in the relevant security renders the realizable value of the security such that there is no material commercial benefit to the proposed beneficiaries of such security in the provision of such security taking into account not only the realizable value of the security, but also any other benefit which may be associated with the grant of security, including, without limitation, any rights and remedies available on an enforcement of the guarantee granted by the relevant Subsidiary Guarantor.
For the avoidance of doubt, no security shall be provided by the Company or any of its subsidiaries to which the United Kingdom Companies Act 2006 applies prior to the Company's re-registration as a private company after the Closing Date.
All the above-described pledges and security interests shall be created on terms, and pursuant to documentation, consistent with the Documentation Precedent, subject to exceptions to be reasonably agreed.
Mandatory Prepayments: Only the following: Unless the net cash proceeds are reinvested (or committed to be reinvested) in the business or to make acquisitions, investments or new projects within 15 months and, if so committed to be reinvested, are actually reinvested within six months after the end of such initial 15-month period, after a non-ordinary course asset sale or other non-ordinary course disposition of property (other than securitizations) of the Company or any restricted subsidiary (including insurance and condemnation proceeds), 100% of the net cash proceeds in excess of an amount to be agreed upon from such non-ordinary course asset sales or other non-ordinary course dispositions of property, shall be applied to prepay the loans under the Term Facility or, no more than ratably, other indebtedness secured by a lien on the Collateral that ranks pari passu with the liens on the Collateral that secure the Term Facility, subject to customary and other exceptions consistent with the Documentation Precedent and other exceptions to be agreed upon; provided that, if at the time of receipt of the net cash proceeds from any such asset sale or other disposition or at any time during the 15-month reinvestment period, after giving effect to such asset sale and the application of the proceeds thereof on a Pro Forma Basis, (i) the Net First Lien Leverage Ratio is less than or equal to the First Mandatory Prepayment Stepdown Ratio (as defined in the Fee Letter), only 50% of such net cash proceeds shall be subject to the mandatory prepayments and reinvestment requirements or (ii) the Net First Lien Leverage Ratio is less than or equal to the Second Mandatory Prepayment Stepdown Ratio (as defined in the Fee Letter), none of such net cash proceeds shall be subject to the mandatory prepayments and reinvestment requirements.
In addition, beginning with the first full fiscal year of the Company after the Closing Date, 50% of Excess Cash Flow (to be defined in a manner consistent with the Documentation Precedent and subject to a minimum threshold to be agreed) of the Company and its restricted subsidiaries (stepping down to (i) 25% if the Net First Lien Leverage Ratio is less than or equal to the First ECF Stepdown Ratio (as defined in the Fee Letter) and (ii) 0% if the Net First Lien Leverage Ratio is less than or equal to the Second ECF Stepdown Ratio (as defined in the Fee Letter)) shall be used to prepay the loans under the Term Facility or, no more than ratably, other indebtedness secured by a lien on the Collateral that ranks pari passu with the liens on the Collateral that secure the Term Facility; provided that any voluntary prepayments, repurchases, redemptions and other retirements of Term Loans or up to a ratable portion of such other indebtedness made during any fiscal year (including loans under the Revolving Facility to the extent the commitments thereunder are permanently reduced by the amount of such prepayments at the time of such prepayment but excluding in all cases prepayments, repurchases, redemptions and other retirements funded with the incurrence of long-term indebtedness) shall be credited against excess cash flow prepayment obligations for such fiscal year on a dollar-for-dollar basis.
In addition, 100% of the net cash proceeds of issuances of debt obligations of the Company and its restricted subsidiaries after the Closing Date (other than debt permitted under the definitive documentation for the Senior Facilities) shall be used to prepay the loans under the Term Facility.
Notwithstanding the foregoing, each Lender under the Term Facility shall have the right to reject its pro rata share of any mandatory prepayments described above, in which case the amounts so rejected may be retained by the Borrower and used for any purpose not prohibited by the definitive documentation for the Senior Facilities and will be included in the calculation of the "Cumulative Credit" (as defined below).
The above-described mandatory prepayments shall be applied to the Term Loans in direct order of maturity.
With respect to subsidiaries organized outside of the United States, prepayments attributable to such subsidiaries' Excess Cash Flow and asset sale proceeds will be limited under the definitive documentation for the Senior Facilities to the extent the repatriation of funds to fund such prepayments (x) is prohibited, restricted or delayed by applicable local laws or (y) would result in a material adverse tax consequence to the Company or its subsidiaries as determined in good faith by the Borrower; provided that in any event the Borrower shall use its commercially reasonable efforts to eliminate such tax effects in its reasonable control in order to make such prepayments.
Voluntary Prepayments and Reductions in Commitments: Voluntary reductions of the unutilized portion of the commitments under the Senior Facilities and prepayments of borrowings thereunder will be permitted at any time, in minimum principal amounts to be agreed upon (consistent with the Documentation Precedent), without premium or penalty, except as described below, subject to reimbursement of the Lenders' redeployment costs in the case of a prepayment of Adjusted LIBOR, CDOR EURIBOR borrowings other than on the last day of the relevant interest period. All voluntary prepayments of the Term Facility will be applied as the Borrower may direct.
The Borrower shall pay a "prepayment premium" in connection with any Repricing Event (as defined below) with respect to all or any portion of the Term Loans that occurs on or before the date that is six months after the Closing Date, in an amount equal to 1.00% of the principal amount of the Term Facility subject to such Repricing Event.
The term "Repricing Event" shall mean (i) any voluntary prepayment or repayment of Term Loans with the proceeds of, or any conversion of Term Loans into, any new or replacement tranche of long-term secured term loans denominated in the same currency that are broadly syndicated to banks and other institutional investors in financings similar to the Term Loans bearing interest with an "effective yield" that is less than the yield applicable to the Term Loans and (ii) any amendment to the Term Facility which reduces the "yield" applicable to the Term Loans (it being understood that (x) any prepayment premium with respect to a Repricing Event shall apply to any required assignment by a non-consenting Lender in connection with any such amendment pursuant to so-called yank-a-bank procedures and (y) in each case, the yield shall include upfront fees and original issue discount on customary terms and any interest rate floor, but exclude any structuring, ticking, commitment, amendment and arranger fees or other similar fees unless such similar fees are paid to all lenders generally in the primary syndication of such new or replacement tranche of term loans), other than, in the case of each of clauses (i) and (ii), in connection with a qualified IPO, a change of control or a transformative acquisition (each such term to be defined in a manner consistent with the Documentation Precedent).
Representations and Warranties: Only the following representations and warranties will apply (to be applicable to the Company and its restricted subsidiaries and, with respect to customary representations with respect to the validity of the Guarantee by Holdings and certain other customary representations consistent with the Documentation Precedent, Holdings), subject to exceptions and qualifications consistent with the Documentation Precedent and other exceptions and qualifications to be agreed upon: organization, existence, and power; qualification; authorization and enforceability; no conflict; governmental consents; subsidiaries; accuracy of financial statements and other information in all material respects; projections; no material adverse change; absence of litigation; compliance with laws; compliance with PATRIOT Act, OFAC, ERISA, margin regulations, environmental laws, Foreign Corrupt Practices Act and laws with respect to sanctioned persons and any applicable anti-corruption laws; payment of taxes; ownership of properties; governmental regulation; inapplicability of the Investment Company Act; closing date solvency on a consolidated basis; labor matters; validity, priority and perfection of security interests in the Collateral; intellectual property; treatment as designated senior debt under subordinated debt documents (if any); use of proceeds; and insurance.
Conditions Precedent to Initial Borrowing: Only the following (consistent with the Documentation Precedent and subject to the last paragraph of Exhibit D): delivery of customary (consistent with similar transactions for the Sponsor) legal opinions of counsel for the Borrower and for Guarantors organized under New York, Delaware or English law (or other material jurisdictions to be mutually agreed); a certificate from the chief financial officer of the Borrower or the Company in the form attached as Exhibit E (or, at the Borrower's option, a solvency opinion from an independent investment bank or valuation firm of nationally recognized standing) with respect to Closing Date solvency (on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby); all 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 a beneficial ownership certificate (the "Beneficial Ownership Certification") for the Borrower to the extent that it qualifies as a "legal entity customer" under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230) (the "Beneficial Ownership Regulation") to any Lender that has requested such certification (in each case, at least three business days prior to the Closing Date, in each case to the extent requested of the Borrower at least 10 business days prior to the Closing Date); customary corporate documents and customary officers' certifications for the Borrower and the Guarantors; customary closing certificates; all documents and instruments required for the creation and perfection of security interests in the Collateral, subject to permitted liens, any prohibitions pursuant to applicable law, rule, or regulation (including but not limited to financial assistance laws, rules and regulations) in any relevant jurisdiction and the last paragraph of Exhibit D; execution of the Guarantees by the Guarantors, which, (i) with respect to Holdings, shall be in full force and effect, (ii) with respect to the Subsidiary Guarantors organized under the laws of the United States, shall only be effective immediately after the effective time of the Acquisition and (iii) with respect to the Company or any Subsidiary Guarantors organized under the laws of England and Wales, shall only be effective after the Company's re-registration as a private company after the Closing Date and to the extent such Guarantees are not prohibited by applicable law, rule, or regulation (including but not limited to financial assistance laws, rules and regulations) in any relevant jurisdiction; customary evidence of authority for the Borrower and the Guarantors; accuracy in all material respects of the Specified Representations and the Target Representations (each such term as defined in Exhibit D); and delivery of a notice of borrowing.
The initial borrowing under the Senior Facilities will also be subject to the applicable conditions precedent set forth in Section 6 of the Commitment Letter and Exhibit D to the Commitment Letter. The definitive documentation for the Senior Facilities shall not contain (a) any conditions precedent other than the conditions precedent expressly set forth in the preceding paragraph, Section 6 of the Commitment Letter and Exhibit D to the Commitment Letter or (b) any representation or warranty, affirmative, negative or financial covenant or event of default not set forth in Section 6 of the Commitment Letter and Exhibit D thereto, the making, accuracy, compliance or absence, respectively, of or with which would be a condition to the initial borrowing under the Senior Facilities. The failure of any representation or warranty (other than the Specified Representations and the Target Representations) to be true and correct in all material respects on the Closing Date will not constitute the failure of a condition precedent to funding or a default under the Senior Facilities.
Conditions Precedent to all Subsequent Borrowings after the Closing Date: (a) Delivery of notice of borrowing, (b) accuracy of representations and warranties in all material respects and (c) absence of defaults (in each case of clauses (b) and (c), except in connection with Incremental Facilities to the extent not required by the applicable incremental assumption agreement).
Affirmative Covenants: Only the following affirmative covenants will apply (to be applicable to the Company and its restricted subsidiaries), subject to customary exceptions and qualifications consistent with the Documentation Precedent and other baskets, exceptions and qualifications to be agreed upon: maintenance of corporate existence and rights; performance and payment of obligations; delivery of annual and quarterly consolidated financial statements (accompanied by customary management discussion and analysis and (annually) by an audit opinion from nationally recognized auditors that is not subject to any qualification as to scope of such audit or going concern on a consolidated basis (other than with respect to, or resulting from, an upcoming maturity date under any series of indebtedness, any breach of a financial maintenance covenant or any potential inability to satisfy a financial maintenance covenant on a future date or in a future period)) (with extended time periods for delivery of the first annual and certain agreed quarterly financial statements to be delivered after the Closing Date) and an annual budget; quarterly compliance certificates of the most recently ended quarter; delivery of notices of default and material adverse litigation, ERISA events and material adverse change; maintenance of properties in good working order; maintenance of books and records; maintenance of customary insurance; commercially reasonable efforts to maintain ratings (but not a specific rating); compliance with laws; compliance with PATRIOT Act, FCPA and any applicable anti-corruption laws, including Beneficial Ownership Regulation, OFAC and other laws with respect to sanctions; providing updated customary KYC information; inspection of books and properties; environmental; additional guarantors and additional collateral (subject to limitations set forth under the captions "Guarantees" and "Security"); further assurances in respect of collateral matters; use of proceeds; and payment of taxes.
Negative Covenants: Only the following negative covenants will apply (to be applicable to the Company and its restricted subsidiaries and, in the case of paragraph 13, Holdings), subject to customary exceptions and qualifications, exceptions and qualifications consistent with the Documentation Precedent and other baskets, exceptions and qualifications to be agreed upon (including in any event (i) a customary basket amount or "Cumulative Credit" to be based on retained Excess Cash Flow or 50% of consolidated net income of the Company and its subsidiaries from the Closing Date (to be selected by the Borrower prior to the launch of general syndication of the Senior Facilities) and otherwise defined in a manner consistent with the Documentation Precedent and include a "starter" basket equal to the Starter Basket Amount (as defined in the Fee Letter) that may be used for, among other things, investments, dividends and distributions, stock repurchases and the redemption or prepayment of subordinated debt and (ii) the exceptions described below):
1. Limitation on non-ordinary course dispositions of assets, with carveouts permitting, among other things, (i) the non-ordinary course disposition of assets subject only to the Company's receipt of fair market value (as determined by the Borrower in good faith), at least 75% of the proceeds consisting of cash or cash equivalents (including customary designated non-cash consideration consistent with the Documentation Precedent, but not less than the Designated Non-Cash Consideration Cap (as defined in the Fee Letter)), and net cash proceeds being reinvested or used to repay debt to the extent required by the mandatory prepayment provisions above, (ii) sale and leaseback transactions permitted under the covenant described in paragraph 9 below, (iii) securitization financings and receivables financings, (iv) permitted asset swaps with no dollar cap and (v) an exception for the disposition of (1) any assets acquired after the Closing Date that are not used or useful in the core or principal business of the Company and its restricted subsidiaries or (2) any assets made in connection with the approval of any anti-trust authority or otherwise necessary or advisable in the good faith determination of the Borrower to consummate any transaction.
2. Limitation on mergers and acquisitions; provided, there shall be no limitation as to the amount of such mergers and acquisitions (but subject to the limitations set forth in clause (iv) of paragraph 5 below).
3. Limitations on dividends and stock repurchases and optional redemptions (and optional prepayments) of subordinated debt with carveouts for, among other things, (i) permitted refinancings of such debt, (ii) the payment of a regular dividend up to an amount to be agreed but no less than the sum of (1) an amount per annum equal to 7% of the market capitalization of Holdings, the Company or a parent entity following any public equity offering of Holdings, the Company or a parent entity plus (2) 6% per annum of the amount of net cash proceeds received in a public equity offering of Holdings, the Company or a parent entity, (iii) the Cumulative Credit, subject, in the case of dividends and stock repurchases, to no continuing event of default, (iv) other restricted payments in an amount not to exceed the General Restricted Payment Cap (as defined in the Fee Letter), subject, in the case of dividends and stock repurchases, to no continuing event of default, (v) tax distributions and overhead payments, (vi) restricted payments made with certain designated equity contributions and/or equity issuances received after the Closing Date that are excluded from the calculation of the Cumulative Credit and not utilized to incur indebtedness pursuant to clause (xi) of paragraph 4 below and (vii) additional restricted payments and redemptions and prepayments of subordinated debt so long as the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Restricted Payment Ratio Level (as defined in the Fee Letter), subject, in the case of dividends and stock repurchases, to no continuing event of default.
4. Limitation on indebtedness, which shall, among other things, (i) permit the incurrence of indebtedness if, after giving effect to the incurrence of such indebtedness and the use of proceeds thereof, (A) in the case of indebtedness secured by liens on the Collateral ranking pari passu with the liens on the Collateral securing the Term Facility, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than the First Lien Incurrence Ratio Level, (B) in the case of indebtedness secured by liens on the Collateral ranking junior to the liens on the Collateral securing the Term Facility, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than the Secured Leverage Incurrence Ratio Level and (C) in the case of other indebtedness, either (x) the Fixed Charge Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 or (y) the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Total Leverage Incurrence Ratio Level, (ii) permit the incurrence of unlimited capital lease obligations, finance lease obligations or other purchase money debt in respect of property, equipment and other assets used or useful in the business, plus additional capital lease obligations, finance lease obligations or other purchase money debt not to exceed the Purchase Money Debt Cap (as defined in the Fee Letter), (iii) include a general basket for indebtedness in an outstanding principal amount not to exceed the General Debt Cap (as defined in the Fee Letter), (iv) permit indebtedness incurred or assumed in connection with acquisitions, investments or new projects without limit so long as at the time of incurrence or assumption, after giving effect to such acquisition, investment or new project on a Pro Forma Basis, the applicable ratio level set forth in clause (i) with respect to the type of debt being incurred or assumed is satisfied on a Pro Forma Basis for such acquisition, investment or new project or such applicable ratio is no worse on a Pro Forma Basis for such acquisition, investment or new project than such ratio in effect immediately prior to such acquisition, investment or new project and, in each case for purposes of such calculations, disregarding an aggregate outstanding principal amount of indebtedness not to exceed the Acquisition Debt Cap (as defined in the Fee Letter), (v) permit securitization financings (including receivables sales and financings), (vi) permit the incurrence of Refinancing Facilities and Refinancing Notes, (vii) permit indebtedness existing on the Closing Date (and permitted to be existing on the Closing Date under the Acquisition Agreement) and permitted refinancings thereof, (viii) permit indebtedness in lieu of, on a dollar- for-dollar basis, indebtedness permitted under the Incremental Facilities, (ix) permit indebtedness of joint ventures and/or indebtedness incurred on behalf thereof or representing guarantees of indebtedness of joint ventures, in an aggregate outstanding principal amount not to exceed the JV Debt Cap (as defined in the Fee Letter), (x) permit indebtedness of non-Guarantor subsidiaries in an aggregate outstanding principal amount not to exceed the Non-Guarantor Debt Cap (as defined in the Fee Letter), (xi) permit indebtedness in an aggregate outstanding principal amount not to exceed 200% of the net cash proceeds received from sale or issuance of qualified equity interests (or qualifying shareholder loans) or capital contributions that do not constitute "cure equity" and that are excluded from the calculation of the Cumulative Credit, (xii) permit refinancing indebtedness of any debt that was permitted when incurred on terms consistent with the Documentation Precedent; provided that any restrictions with respect to maturity or weighted average life to maturity shall not apply to refinancing indebtedness in an aggregate principal amount outstanding not to exceed the Inside Maturity Date Debt Cap (as defined in the Fee Letter), (xiii) permit bilateral or local facilities in an aggregate outstanding principal amount not to exceed the Local Facilities Debt Cap (as defined in the Fee Letter) in addition to local facilities for working capital purposes without dollar limit, (xiv) permit indebtedness in an aggregate outstanding principal amount not to exceed the aggregate amount of restricted payments that could otherwise be made by the Company at the time of such incurrence (with the aggregate principal amount of such indebtedness utilizing such available restricted payment capacity for so long as such indebtedness remains outstanding) and (xv) permit indebtedness in an aggregate outstanding principal amount not to exceed the principal amount of the Senior Unsecured Notes, Senior Unsecured Bridge Loans and/or the Senior Unsecured Securities outstanding on the Closing Date.
5. Limitation on loans and investments, which shall, among other things, (i) include a general basket for investments in an outstanding amount not to exceed the General Investment Cap (as defined in the Fee Letter) plus the Cumulative Credit, (ii) include a basket for investments in similar businesses in an outstanding amount not to exceed the Similar Business Investment Cap (as defined in the Fee Letter), (iii) permit additional investments in joint ventures in an outstanding amount not to exceed the JV Investment Cap (as defined in the Fee Letter), (iv) include an unlimited exception for permitted business acquisitions, including in respect of investments in entities that will become restricted subsidiaries and assets that will be owned by restricted subsidiaries, (v) permit unlimited investments in restricted subsidiaries, (vi) permit additional investments in unrestricted subsidiaries in an outstanding amount not to exceed the Unrestricted Subsidiary Investment Cap (as defined in the Fee Letter) and (vii) permit additional investments so long as the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Investment Ratio Level (as defined in the Fee Letter).
6. Limitation on liens, which shall, among other things, (i) permit the incurrence of liens on assets of non-Guarantor subsidiaries so long as such liens secure obligations of non-Guarantor subsidiaries that are otherwise permitted, (ii) permit the incurrence of liens on nonCollateral assets so long as such liens secure obligations that are otherwise permitted, (iii) permit the incurrence of junior liens on Collateral, subject to an intercreditor agreement consistent with the Documentation Precedent, (iv) permit the incurrence of other liens, including pari passu liens on Collateral (including liens securing notes or additional credit facilities), subject to compliance with a Net First Lien Leverage Ratio on a Pro Forma Basis that is not greater than the First Lien Incurrence Ratio Level; provided that such notes and additional credit facilities shall be subject to an intercreditor agreement consistent with the Documentation Precedent in the case of liens on the Collateral, (v) permit liens securing indebtedness incurred or assumed in connection with acquisitions, investments or new projects that are permitted under clause (iv) of paragraph 4 above to the extent such debt is permitted to be secured and tested as secured debt; provided that any such indebtedness shall be subject to an intercreditor agreement consistent with the Documentation Precedent in the case of liens on the Collateral, (vi) permit liens existing on the Closing Date, (vii) permit liens securing securitization financings (including receivables financings), (viii) include a general basket for liens in an outstanding amount not to exceed the amount of the general debt basket under clause (iii) of paragraph 4 above, (ix) permit liens securing indebtedness of the type permitted under clauses (ii), (iii), (iv), (vi), (viii), (x), (xi), (xiii) and (xiv) of paragraph 4 above and (x) permit refinancing liens of any liens that were permitted when incurred.
7. Limitation on transactions with affiliates (subject to carveouts for, among other things, agreements to pay annual management fees of up to the Management Fee Cap (as defined in the Fee Letter) (with carryover of unused or deferred amounts to subsequent years), transaction fees, including in respect of the Transactions, of up to the Transaction Fee Cap (as defined in the Fee Letter) and termination fees in respect of the termination of any such agreement, which, in each case, will be added back to EBITDA).
8. Limitation on changes in the business of the Company and its restricted subsidiaries.
9. Limitation on sale/leaseback transactions.
10. Limitation on restrictions of subsidiaries to pay dividends or make distributions and limitations on negative pledges.
11. Limitation on changes to fiscal year.
12. Limitation on modifications to organizational documents and material subordinated debt documents.
13. Holdings covenant consistent with the Documentation Precedent (for the avoidance of doubt, there shall be no restriction on the formation of additional holding companies above Holdings).
For covenant purposes, the Investors and their respective affiliates shall not be considered affiliates of the Company or its subsidiaries with respect to any transaction, so long as such transaction is in the ordinary course of business, or pursuant to an operations management agreement, shared services agreement, transition services agreement or other similar agreement entered into with the Company and/or its subsidiaries or, in each case, amendments thereto or replacements thereof that are not materially adverse to the Company or its subsidiaries.
All ratios and calculations shall be measured on a Pro Forma Basis (to be defined in a manner consistent with the Documentation Precedent).
Financial Covenant: Term Facility: None.
Revolving Facility: Consistent with the Documentation Precedent, the definitive documentation for the Senior Facilities will contain only the following financial covenant with regard to the Company and its restricted subsidiaries on a consolidated basis, solely for the benefit of the Lenders under the Revolving Facility and solely when required as provided in the next paragraph:
·	a Net First Lien Leverage Ratio set at the Financial Covenant Ratio Level (as defined in the Fee Letter) (the "Financial Covenant").
The Financial Covenant will be tested as of the last day of each fiscal quarter if the aggregate amount of funded loans and letters of credit (excluding undrawn letters of credit in an amount not to exceed the Excluded L/C Amount (as defined in the Fee Letter) and cash collateralized letters of credit) under the Revolving Facility on such date exceeds an amount equal to the Testing Threshold Percentage (as defined in the Fee Letter) of the then outstanding commitments under the Revolving Facility (the "Testing Threshold"), with the first quarterly covenant test to commence as of the last day of the first full fiscal quarter ending after the Closing Date (if otherwise applicable on such date).
For purposes of determining compliance with the Financial Covenant, any cash equity contribution (which shall be common equity or otherwise in a form reasonably acceptable to the Senior Facilities Agent) made to Holdings and contributed to the Company as common equity following the last day of the applicable fiscal quarter and on or prior to the day that is 10 business days after the day on which financial statements are required to be delivered for such fiscal quarter will be included in the calculation of consolidated EBITDA solely for the purposes of determining compliance with the Financial Covenant at the end of such fiscal quarter and applicable subsequent periods which include such fiscal quarter (any such equity contribution included in the calculation of consolidated EBITDA, a "Specified Equity Contribution"); provided that (a) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (b) no more than five Specified Equity Contributions may be made during the term of the Revolving Facility, (c) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Company to be in pro forma compliance with the Financial Covenant, (d) all Specified Equity Contributions shall be disregarded for purposes of determining any financial ratio-based conditions, pricing or any baskets with respect to the covenants contained in the definitive documentation for the Senior Facilities and shall not build the Cumulative Credit, and (e) there shall be no pro forma reduction in indebtedness with the proceeds of any Specified Equity Contribution for determining compliance with the Financial Covenant for the fiscal quarter in respect of which such Specified Equity Contribution is made (either directly through prepayment or indirectly as a result of the netting of unrestricted cash).
Events of Default: Only the following (subject to customary thresholds and grace periods to be agreed upon, but no lower or shorter than the Documentation Precedent, and applicable to the Company and its restricted subsidiaries and, with respect to the covenant in paragraph 13 of "Negative Covenants" above and bankruptcy related defaults, Holdings): nonpayment of principal, interest or other amounts; violation of covenants (provided that with respect to the Financial Covenant, a breach shall only result in an event of default with respect to the Term Facility upon the Lenders under the Revolving Facility having terminated the commitments under the Revolving Facility and accelerating any Revolving Loans then outstanding thereunder and such Revolving Loans are in excess of the Testing Threshold); incorrectness of representations and warranties in any material respect; cross event of default and cross acceleration to material indebtedness; bankruptcy and similar events; material monetary judgment defaults (same dollar threshold as cross default to material indebtedness); ERISA events; invalidity of guarantees or security documents in each case representing a material portion of the guarantees or the collateral (excluding any invalidity attributed to any financial assistance laws, rules and regulations in any relevant jurisdiction); and change of control (to be defined in a manner consistent with the Documentation Precedent).
Unrestricted Subsidiaries: The definitive documentation for the Senior Facilities will contain provisions pursuant to which, subject to usage of investment capacity consistent with the Documentation Precedent, and for so long as no event of default would result therefrom, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary of the Company (other than the Borrower) as an "unrestricted subsidiary" and, so long as no event of default would result therefrom, subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary. Unrestricted subsidiaries will not be subject to the affirmative or negative covenant or event of default provisions of the definitive documentation for the Senior Facilities, and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of calculating the financial ratios contained in the definitive documentation on terms consistent with the Documentation Precedent.
Voting: Usual for facilities and transactions of this type and consistent with the Documentation Precedent.
For the avoidance of doubt, amendments and waivers of the Financial Covenant (and related defaults) and the conditions to borrowing under the Revolving Facility shall only require the approval of Lenders holding more than 50% of the aggregate amount of the commitments under the Revolving Facility (disregarding Defaulting Lenders).
Cost and Yield Protection: Usual for facilities and transactions of this type, consistent with the Documentation Precedent (including, without limitation, customary provisions relating to Dodd-Frank and Basel III).
Assignments and Participations: The Lenders will be permitted to assign loans and commitments under the Senior Facilities with the consent of the Borrower (not to be unreasonably withheld or delayed and as to which, in the case of the Term Facility, the Borrower will be deemed to have consented 10 business days after any request for consent if the Borrower has not otherwise responded by such date); provided that such consent of the Borrower shall not be required (i) under the Term Facility if such assignment is made to another Lender or an affiliate or approved fund of a Lender or (ii) after the occurrence and during the continuance of an event of default relating to payment default or bankruptcy. All assignments will also require the consent of the Senior Facilities Agent (subject to exceptions consistent with the Documentation Precedent), and, with respect to assignment under the Revolving Facility, the Swingline Lender and the Issuing Bank, not to be unreasonably withheld or delayed. Each assignment, in the case of the Term Facility, will be in an amount of an integral multiple of $1,000,000. Each assignment, in the case of the Revolving Facility, will be in an amount of not less than $5,000,000 and an integral multiple of $1,000,000 in excess thereof. Assignments will not be required to be pro rata between the Senior Facilities. The Senior Facilities Agent will receive a processing and recordation fee of $3,500, payable by the assignor and/or the assignee, with each assignment.
The Lenders will be permitted to sell participations in loans and commitments subject to the restrictions set forth herein, in the Commitment Letter and consistent with the Documentation Precedent. Voting rights of participants (i) shall be limited to matters in respect of (a) increases in commitments of such participant, (b) reductions of principal, interest or fees payable to such participant, (c) extensions of final maturity or interest or fee payment dates or scheduled amortization of the loans or commitments in which such participant participates and (d) releases of all or substantially all of the value of the Guarantees, or all or substantially all of the Collateral (other than in connection with any release of the relevant Guarantees or Collateral permitted by the definitive documentation for the Senior Facilities) and (ii) for clarification purposes, shall not include the right to vote on waivers of defaults or events of default.
Notwithstanding the foregoing, assignments (and, to the extent the Disqualified Lender list is made available to all Lenders, participations; provided that regardless of whether the Disqualified Lender list has been made available to all Lenders, no Lender may sell participations in loans or commitments to Disqualified Lenders without the consent of the Borrower if the Disqualified Lender list has been made available to such Lender) shall not be permitted to Disqualified Lenders (the list of which may be updated from time to time after the Closing Date with respect to competitors of the Company and will remain on file with the Senior Facilities Agent and not be subject to further disclosure); provided that the foregoing shall not apply retroactively to disqualify any assignment or participation interest in the Senior Facilities to the extent such assignment or participation interest was acquired by a party that was not a Disqualified Lender at the time of such assignment or participation, as the case may be; provided, further that the Senior Facilities Agent shall have no duties or responsibilities for monitoring or enforcing prohibitions on assignments or participations to Disqualified Lenders or Affiliated Lenders. Any assigning Lender shall, in connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee) concurrently with its delivery of the same request to the Senior Facilities Agent irrespective of whether or not an event of default relating to payment default or bankruptcy has occurred and is continuing or whether the Borrower otherwise has a consent right.
Assignments shall not be deemed non-pro rata payments. Non-pro rata prepayments will be permitted to the extent required to permit "extension" transactions and "replacement" facility transactions (with existing and/or new Lenders), subject to customary restrictions consistent with the Documentation Precedent.
Assignments to the Sponsor and its affiliates (other than Holdings and its subsidiaries, except as set forth below, and other than to natural persons) (each, an "Affiliated Lender") shall be permitted, subject only to the following limitations:
(i) no receipt of information provided solely to Lenders and no participation in Lender meetings;
(ii) the purchaser shall make a customary representation to the seller at the time of the assignment that it does not possess material non-public information (or, if Holdings is not at the time a public reporting company, material information of a type that would not reasonably be expected to be publicly available if Holdings was a public reporting company) with respect to Holdings and its subsidiaries that has not been disclosed to the seller or the Lenders generally (other than the Lenders that have elected not to receive material non-public information);
(iii) Affiliated Lenders may not purchase loans or commitments under the Revolving Facility;
(iv) the amount of Term Loans owned or held by such Affiliated Lenders may not, in the aggregate, exceed 25% of the outstanding principal amount of such Term Loans, calculated as of the date of such purchase;
(v) for purposes of any amendment, waiver or modification of the loan documents (other than any such amendment requiring the consent of each affected Lender) that does not adversely affect such Affiliated Lender (in its capacity as a Lender) in a disproportionately adverse manner as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as non-affiliated Lenders voting on such matter; and
(vi) any Affiliated Lender that becomes a Lender shall waive its rights to bring actions (in its capacity as a Lender) against the Senior Facilities Agent.
Assignments of Term Loans to Sponsor Debt Fund Affiliates (as defined in the Fee Letter) will be permitted and will not be subject to the foregoing limitations; provided that, for purposes of determining whether the required lenders have consented to any amendment or waiver under the definitive documentation for the Senior Facilities, the aggregate amount of Term Loans of Sponsor Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the outstanding principal amount of Term Loans required to constitute "Required Lenders".
Non-Pro Rata Repurchases: Holdings and its subsidiaries may purchase from any Lender, at individually negotiated prices, outstanding amounts under the Term Facility in a non-pro rata manner; provided that (i) the purchaser shall make a representation to the seller at the time of assignment that it does not possess material non-public information (or, if Holdings is not at the time a public reporting company, material information of a type that would not reasonably be expected to be publicly available if Holdings was a public reporting company) with respect to Holdings and its subsidiaries that has not been disclosed to the seller or Lenders generally (other than the Lenders that have elected not to receive material non-public information), (ii) any loans so repurchased shall be immediately cancelled, (iii) no proceeds of loans under the Revolving Facility shall be utilized to fund such purchases and (iv) no event of default would result therefrom.
Expensesand Indemnification: Indemnification by the Borrower of the Senior Facilities Agent, Arrangers, Syndication Agent, the Documentation Agent, Lenders, Issuing Bank, Swingline Lender, their respective successors and assigns, their respective affiliates and the officers, directors, employees, agents, advisors, controlling persons and members and representatives of each of the foregoing (each, an "Indemnified Person") for matters arising out of or in connection with the Commitment Letter, the Fee Letter, the Transactions, the Facilities, the use or intended use of the proceeds of the Facilities or any related transaction or any claim, actions, suits, inquiries, litigation, investigation or other proceeding (regardless of whether such Indemnified Person is a party thereto and regardless of whether such matter is initiated by the Borrower's or the Target's equity holders, creditors or any other third party or by the Borrower, the Target or any of their respective affiliates) that relates to the Transactions, including the Facilities, the Acquisition or any transactions in connection therewith; provided that no Indemnified Person will be indemnified for any loss, claim, damage, cost, expense or liability (i) to the extent determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of such Indemnified Person's controlled or controlling affiliates or any or its or their respective officers, directors, employees, agents, advisors, controlling persons or members (collectively, "Related Persons"), (ii) arising from a material breach of such Indemnified Person's (or any of its Related Persons) obligations under the definitive documentation for the Senior Facilities (as determined in a final, non-appealable judgment by a court of competent jurisdiction) or (iii) arising from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of its affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Senior Facilities Agent, the Syndication Agent, the Documentation Agent or any Arranger, Issuing Bank or Swingline Bank in its capacity as such). In addition, all reasonable, documented out-of-pocket expenses (including, without limitation, fees, disbursements and other charges of one firm of counsel for all such persons, taken as a whole (and, if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such persons, taken as a whole) (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel with your prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (and local counsel, if applicable) for such affected Indemnified Person)) of (x) the Senior Facilities Agent, Arrangers, the Syndication Agent, the Documentation Agent, the Issuing Bank, the Swingline Lender and the Lenders for the enforcement costs and documentary taxes associated with the Senior Facilities and (y) the Senior Facilities Agent in connection with the preparation, execution and delivery of any amendment, waiver or modification of the Senior Facilities (whether or not such amendment, waiver or modification is approved by the Lenders) will in each case be paid by the Borrower if the Closing Date occurs.
Governing Law and Forum: New York, except for security documents governed by the laws of England and Wales consistent with the Documentation Principles; provided, however, that the interpretation of the definition of "Material Adverse Effect" (as defined in Exhibit D) and whether or not a Material Adverse Effect has occurred shall be governed by the law governing the Acquisition Agreement.
Counsel to Senior Facilities
Agent and Arrangers:
Davis Polk & Wardwell LLP.
ANNEX B-I
Interest Rates: Subject to "Changes in Interest Rate Margins and Commitment Fees" below, the interest rates under the Term Facility will be, at the option of the Borrower, Adjusted LIBOR plus the Term Facility LIBOR Spread (as defined in the Fee Letter) or ABR plus the Term Facility ABR Spread (as defined in the Fee Letter).
Subject to "Changes in Interest Rate Margins and Commitment Fees" below, the interest rates under the Revolving Facility will be, at the option of the Borrower, Adjusted LIBOR, EURIBOR or CDOR, as applicable, plus the Revolving Facility LIBOR Spread (as defined in the Fee Letter) or ABR or Canadian Prime Rate plus the Revolving Facility ABR Spread (as defined in the Fee Letter).
The definitive documentation for the Senior Facilities shall include appropriate language to be mutually agreed reflecting appropriate definitions of CDOR, Canadian Prime Rate and EURIBOR with respect to Revolving Loans.
The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed to by all relevant Lenders, 12 months or, if agreed to by the Senior Facilities Agent, a shorter period) for Adjusted LIBOR, EURIBOR or CDOR borrowings.
Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans determined by reference to the Senior Facilities Agent's Prime Rate (as defined below), CDOR and Canadian Prime Rate loans) and interest shall be payable at the end of each interest period and, in any event, at least every three months.
"ABR" means the Alternate Base Rate, which is the highest of (a) the rate of interest publicly announced by the Senior Facilities Agent as its prime rate in effect at its principal office in New York City (the "Prime Rate"), (b) the federal funds effective rate from time to time plus 0.50% per annum and (c) one-month Adjusted LIBOR plus 1.00% per annum.
"Adjusted LIBOR" means the rate (adjusted for statutory reserve requirements for eurocurrency liabilities) for eurodollar deposits for the applicable interest period appearing on Reuters Screen LIBOR01 Page (or otherwise on the Reuters screen) or other applicable page or screen for loans denominated in United States Dollars; provided that if Adjusted LIBOR shall be less than zero, such rate shall be deemed zero.
Letter of Credit Fees: A per annum fee equal to the spread over Adjusted LIBOR under the Revolving Facility will accrue on the aggregate face amount of outstanding letters of credit under the Revolving Facility, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the Lenders participating in the Revolving Facility pro rata in accordance with the amount of each such Lender's Revolving Facility commitment, with exceptions for Defaulting Lenders. In addition, the Borrower shall pay to the Issuing Bank, for its own account, (a) a fronting fee equal to 0.125% per annum of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.
Exh. B-I-1
Commitment Fees: Subject to "Changes in Interest Rate Margins and Commitment Fees" below, the Revolving Commitment Fee Percentage (as defined in the Fee Letter) per annum on the average daily undrawn portion (treating swingline drawings as undrawn) of the commitments in respect of the Revolving Facility, payable quarterly in arrears after the Closing Date and upon the termination of the commitments, calculated based on the number of days elapsed in a 360-day year. Such fees shall be distributed to the Lenders participating in the Revolving Facility (other than the Swingline Lender in its capacity as such) pro rata in accordance with the amount of each such Lender's Revolving Facility commitment, with exceptions for Defaulting Lenders.
Changes in Interest Rate
Margins and Commitment
Fees: From and after the date of delivery of the Borrower's financial statements for the first full fiscal quarter ended after the Closing Date, interest rate margins under the Senior Facilities will be subject to two reductions, and commitment fees under the Revolving Facility will be subject to one reduction, in each case, based upon Net First Lien Leverage Ratios to be agreed.
EXHIBIT C
Summary of Principal Terms and Conditions 5
Borrower: The Borrower under the Term Facility.
Agent: Barclays, acting through one or more of its branches or affiliates, will act as administrative agent for the Senior Unsecured Bridge Facility (in such capacity, the "Senior Unsecured Bridge Agent") for a syndicate of banks, financial institutions and other institutional lenders reasonably acceptable to the Borrower (together with the Initial Lenders, the "Lenders"), and will perform the duties customarily associated with such role.
Bookrunners and Senior
Unsecured Bridge Arrangers: Barclays, RBCCM, DBSI and Mizuho will act as joint bookrunners and joint lead arrangers for the Senior Unsecured Bridge Facility (together with any additional bookrunners and lead arrangers appointed by the Borrower, each in such capacity, a "Senior Unsecured Bridge Arranger" and collectively, the "Senior Unsecured Bridge Arrangers"), and will perform the duties customarily associated with such roles. Other joint lead arrangers and joint bookrunners may be appointed by the Borrower as contemplated in the Commitment Letter.
Syndication Agent: At the option of the Borrower, one or more financial institutions identified by the Borrower (in such capacity, the "Syndication Agent")
Senior Unsecured Bridge Facility: Senior unsecured increasing rate bridge loans (the "Senior Unsecured Bridge Facility"; and the loans thereunder, the "Senior Unsecured Bridge Loans") in an aggregate principal amount of $450 million. The Senior Unsecured Bridge Loans will be funded in full on the Closing Date in United States Dollars.
Definitive Documentation: The definitive documentation for the Senior Unsecured Bridge Facility (the "Senior Unsecured Bridge Loan Documentation") shall, except as otherwise set forth herein, be based on and consistent with the Documentation Precedent.
5 All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Commitment Letter to which this Term Sheet is attached or the other Exhibits thereto.
Exh. C-1
Purpose: The proceeds of the Senior Unsecured Bridge Loans on the Closing Date will be used by the Borrower, together with the proceeds from the Senior Facilities, the Equity Contribution, the Senior Unsecured Notes (if any), the Senior Unsecured Securities (if any), and cash on hand of the Borrower, the Target and their subsidiaries, to finance the Transactions.
Availability: The full amount of the Senior Unsecured Bridge Facility must be drawn in a single drawing on the Closing Date. Amounts borrowed under the Senior Unsecured Bridge Facility that are repaid or prepaid may not be reborrowed.
Ranking: The Senior Unsecured Bridge Loans will constitute senior unsecured indebtedness of the Borrower, and will rank pari passu in right of payment with all obligations under the Senior Facilities and all other senior indebtedness of the Borrower.
Senior Unsecured Bridge
Facility Guarantees: Subject to the below paragraph and the last paragraph of Exhibit D, the Senior Unsecured Bridge Loans will be guaranteed by the Company, each Additional Borrower and each Subsidiary Guarantor of the Senior Facilities (the "Note Guarantors") on a senior unsecured basis (the "Senior Unsecured Bridge Facility Guarantees"). The Senior Unsecured Bridge Facility Guarantees will rank pari passu in right of payment with all obligations under the Senior Facilities and all other senior indebtedness of the Note Guarantors. The Senior Unsecured Bridge Facility Guarantees will be automatically released upon release of the corresponding guarantees of the Senior Facilities or other indebtedness that triggered the obligation to give a guarantee (other than in connection with the payment in full of the Senior Facilities or such other indebtedness); provided that such released guarantees shall be reinstated if such released guarantors thereof are required to subsequently guarantee the Senior Facilities or such other indebtedness.
Security: None.
Interest Rates: Interest for the first three month period commencing on the Closing Date shall be payable at Adjusted LIBOR (as defined below) plus the Senior Unsecured Bridge Loan Spread (as defined in the Fee Letter) (the "Spread"). At the end of the three-month period commencing on the Closing Date, and at the end of each three-month period thereafter, the Spread shall increase by an additional 50 basis points.
"Adjusted LIBOR" means the rate (adjusted for statutory reserve requirements for eurocurrency liabilities) for eurodollar deposits for a three-month period appearing on the Reuters Screen LIBOR01 Page (or otherwise on the Reuters screen) or other applicable page or screen for loans denominated in United States Dollars; provided that if Adjusted LIBOR shall be less than 0.75%, such rate shall be deemed 0.75%.
Notwithstanding anything to the contrary set forth above, at no time shall the per annum interest rate on the Senior Unsecured Bridge Loans, the Senior Unsecured Term Loans (as defined below) or the Senior Unsecured Exchange Notes (as defined below) exceed a percentage amount per annum specified in the Fee Letter (the "Total Senior Unsecured Cap"), subject to the Default Rate below.
In addition, in no event shall the interest rate on the Senior Unsecured Bridge Loans exceed the highest rate permitted under applicable law.
Interest Payments: Interest on the Senior Unsecured Bridge Loans will be payable in cash, quarterly in arrears.
Default Rate: Overdue principal and interest shall bear interest at the applicable interest rate plus 2.0% per annum.
Conversion and Maturity: On the first anniversary of the Closing Date (the "Conversion Date"), any Senior Unsecured Bridge Loan that has not been previously repaid in full will be automatically converted into a senior unsecured term loan (each a "Senior Unsecured Term Loan") due on the date that is eight years after the Closing Date (the "Senior Unsecured Term Loan Maturity Date"), subject to the Conditions Precedent to Conversion set forth in Annex C-I. At any time on or after the Conversion Date, at the option of the applicable Lender, such Senior Unsecured Term Loans may be exchanged in whole or in part for senior unsecured exchange notes (the "Senior Unsecured Exchange Notes") having an equal principal amount; provided, however, that the Borrower may defer the first issuance of Senior Unsecured Exchange Notes until such time as the Borrower shall have received requests to issue an aggregate of at least $200 million in principal amount of Senior Unsecured Exchange Notes.
The Senior Unsecured Term Loans will be governed by the provisions of the Senior Unsecured Bridge Loan Documentation and will have the same terms as the Senior Unsecured Bridge Loans except as expressly set forth on Annex C-I hereto. The Senior Unsecured Exchange Notes will be issued pursuant to an indenture in a form and on terms (except as set forth on Annex C-II hereto) consistent with the Documentation Precedent.
Mandatory Prepayments: Consistent with the Documentation Precedent, the Senior Unsecured Bridge Loans shall be prepaid with, subject to certain customary and other exceptions and reinvestment rights to be agreed upon, (i) the net cash proceeds from the issuance of the Senior Unsecured Securities (as defined in the Fee Letter) and indebtedness incurred to refinance the Senior Unsecured Bridge Loans; provided that in the event any Lender or affiliate of a Lender purchases debt securities from the Borrower pursuant to a securities demand at a price above the level at which such Lender or affiliate has reasonably determined such debt securities can be resold by such Lender or affiliate to a bona fide third party at the time of such purchase (and notifies the Borrower thereof) the net cash proceeds received by the Borrower in respect of such debt securities may, at the option of such Lender or affiliate, be applied first to prepay the Senior Unsecured Bridge Loans of such Lender or affiliate prior to being applied to prepay the Senior Unsecured Bridge Loans held by other Lenders; and (ii) the net cash proceeds from any non-ordinary course asset sales by the Company or any restricted subsidiary (including proceeds from the sale of stock of any restricted subsidiary) in excess of an amount to be agreed (over the amount required to be paid to the lenders under the Senior Facilities and any other secured indebtedness) and subject to reinvestment rights and other exceptions and step-downs consistent with the Senior Unsecured Exchange Notes.
With respect to subsidiaries organized outside of the United States, prepayments attributable to such subsidiaries' asset sale proceeds will be limited under the Senior Unsecured Bridge Loan Documentation to the extent the repatriation of funds to fund such prepayments (x) is prohibited, restricted or delayed by applicable local laws or (y) would result in a material adverse tax consequence to the Company or its subsidiaries as determined in good faith by the Borrower; provided that in any event the Borrower shall use its commercially reasonable efforts to eliminate such tax effects in its reasonable control in order to make such prepayments.
The Borrower will also be required to offer to prepay the Senior Unsecured Bridge Loans following the occurrence of a change of control (to be defined in a manner consistent with high-yield debt securities and the Documentation Precedent) at 100% of the outstanding principal amount thereof, plus accrued and unpaid interest to, but not including, the date of repayment.
Voluntary Prepayments: The Senior Unsecured Bridge Loans may be prepaid, in whole or in part, at par plus accrued and unpaid interest to, but not including, the date of prepayment but without premium or penalty upon not less than three business days' (or such shorter period as may be agreed by the Senior Unsecured Bridge Agent) prior written notice (which may be conditioned upon the occurrence of a refinancing or other event), at the option of the Borrower at any time.
Conditions Precedent to Initial
Borrowing: Only the following (consistent with the Documentation Precedent and subject to the last paragraph of Exhibit D): delivery of customary (consistent with similar transactions for the Sponsor) legal opinions of counsel for the Borrower and for Note Guarantors organized under New York, Delaware or England and Wales (or other material jurisdictions to be mutually agreed); a certificate from the chief financial officer of the Borrower or the Company in the form attached as Exhibit E (or, at the Borrower's option, a solvency opinion from an independent investment bank or valuation firm of nationally recognized standing) with respect to Closing Date solvency (on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby); all 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 a Beneficial Ownership Certificate for the Borrower to the extent that it qualifies as a "legal entity customer" under the Beneficial Ownership Regulation to any Lender that has requested such certification (in each case, at least three business days prior to the Closing Date, in each case to the extent requested of the Borrower at least 10 business days prior to the Closing Date); customary corporate documents and customary officers' certifications for the Borrower and any Note Guarantor party to the Senior Unsecured Bridge Loan Documentation on the Closing Date; customary evidence of authority for the Borrower and any Note Guarantor party to the Senior Unsecured Bridge Loan Documentation on the Closing Date; customary closing certificates; execution of the Senior Unsecured Bridge Facility Guarantees by the Note Guarantors, which, (i) with respect to the Note Guarantors organized under the laws of the United States, shall only be effective immediately after the effective time of the Acquisition and (ii) with respect to the Company or any Note Guarantors organized under the laws of England and Wales, shall only be effective after the Company's re-registration as a private company after the Closing Date and to the extent such Senior Unsecured Bridge Facility Guarantees are not prohibited by applicable law, rule, or regulation (including but not limited to financial assistance laws, rules and regulations) in any relevant jurisdiction; evidence of authority for the Borrower and the Guarantors; accuracy in all material respects of the Specified Representations and the Target Representations (each such term as defined in Exhibit D); and delivery of a notice of borrowing.
The Senior Unsecured Bridge Loan Documentation shall not contain (a) any conditions precedent other than the conditions precedent expressly set forth in the preceding paragraph, Section 6 of the Commitment Letter and Exhibit D to the Commitment Letter or (b) any representation or warranty, affirmative, negative or financial covenant or event of default not set forth in Section 6 of the Commitment Letter and Exhibit D thereto, the making, accuracy, compliance or absence, respectively, of or with which would be a condition to the initial borrowing under the Senior Unsecured Bridge Facility. The failure of any representation or warranty (other than the Specified Representations and the Target Representations) to be true and correct in all material respects on the Closing Date will not constitute the failure of a condition precedent to funding or a default under the Senior Unsecured Bridge Facility.
Assignments and
Participations: Each Lender shall have the right to assign or sell participations in the Senior Unsecured Bridge Loans held by it in compliance with applicable law to any third party with, solely in the case of assignments, the prior written consent of the Senior Unsecured Bridge Agent (subject to exceptions consistent with the Documentation Precedent and not to be unreasonably withheld or delayed) and shall give notice to the Borrower of any such assignment; provided, however, that prior to any assignment of the Senior Unsecured Bridge Loans which occurs on or before the Conversion Date each Lender will consult with the Borrower regarding any such assignment and, unless there has been a Senior Unsecured Bridge Demand Failure Event (as defined in the Fee Letter) or a payment or bankruptcy event of default has occurred, the consent of the Borrower will be required with respect to any assignment (such consent not to be unreasonably withheld or delayed) if, subsequent thereto, the Initial Lenders would hold less than 50.1% of the outstanding Senior Unsecured Bridge Loans. For any assignments for which the Borrower's consent is required, such consent shall be deemed to have been given if the Borrower has not responded within 10 business days of a request for such consent.
Notwithstanding the foregoing, assignments (and, to the extent the Disqualified Lender list is made available to all Lenders, participations; provided that regardless of whether the Disqualified Lender list has been made available to all Lenders, no Lender may sell participations in loans or commitments to Disqualified Lenders without the consent of the Borrower if the Disqualified Lender list has been made available to such Lender) of the Senior Unsecured Bridge Loans shall not be permitted to Disqualified Lenders (the list of which may be updated from time to time after the Closing Date with respect to competitors of the Borrower and will remain on file with the Senior Unsecured Bridge Agent and not subject to further disclosure); provided that the foregoing shall not apply retroactively to disqualify any assignment or participation interest in the Senior Unsecured Bridge Loans to the extent such assignment or participation interest was acquired by a party that was not a Disqualified Lender at the time of such assignment or participation, as the case may be; provided, further that the Senior Unsecured Bridge Agent shall have no duties or responsibilities for monitoring or enforcing prohibitions on assignments or participations to Disqualified Lenders or Affiliated Lenders. Any assigning Lender shall, in connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee) concurrently with its delivery of the same request to the Senior Unsecured Bridge Agent irrespective of whether or not an event of default relating to payment default or bankruptcy has occurred and is continuing or whether the Borrower otherwise has a consent right.
Assignments to the Sponsor and its affiliates (other than Holdings and its subsidiaries, except as set forth below) (each, an "Affiliated Lender") shall be permitted, subject only to the following limitations:
(iii) the amount of Senior Unsecured Bridge Loans owned or held by such Affiliated Lenders may not, in the aggregate, exceed 25% of the outstanding principal amount of such Senior Unsecured Bridge Loans, calculated as of the date of such purchase;
(iv) for purposes of any amendment, waiver or modification of the loan documents (other than any such amendment requiring the consent of each affected Lender) that does not adversely affect such Affiliated Lender (in its capacity as a Lender) in a disproportionately adverse manner as compared to other Lenders, Affiliated Lenders will be deemed to have voted in the same proportion as non-affiliated Lenders voting on such matter; and
(v) any Affiliated Lender that becomes a Lender shall waive its rights to bring actions (in its capacity as a Lender) against the Senior Unsecured Bridge Agent.
Assignments of Senior Unsecured Bridge Loans to Sponsor Debt Fund Affiliates (as defined in the Fee Letter) will be permitted and will not be subject to the foregoing limitations; provided that, for purposes of determining whether the required lenders have consented to any amendment or waiver under the Senior Unsecured Bridge Loan Documentation, the aggregate amount of Senior Unsecured Bridge Loans of Sponsor Debt Fund Affiliates will be excluded to the extent in excess of 49.9% of the outstanding principal amount of Senior Unsecured Bridge Loans required to constitute "Required Lenders".
Non-Pro Rata Repurchases: Holdings and its subsidiaries may purchase from any Lender, at individually negotiated prices, outstanding principal amounts under the Senior Unsecured Bridge Facility in a non-pro rata manner; provided that (i) the purchaser shall make a representation to the seller at the time of assignment that it does not possess material non-public information (or, if Holdings is not at the time a public reporting company, material information of a type that would not reasonably be expected to be publicly available if Holdings was a public reporting company) with respect to Holdings and its subsidiaries that has not been disclosed to the seller or Lenders generally (other than the Lenders that have elected not to receive material non-public information), (ii) any loans so repurchased shall be immediately cancelled, (iii) no proceeds under the Revolving Facility shall be utilized to make such purchases and (iv) no event of default exists or would result therefrom.
Representations and
Warranties: The Senior Unsecured Bridge Loan Documentation will contain representations and warranties relating to the Company and its restricted subsidiaries specified under the caption "Representations and Warranties" in the Senior Facilities Term Sheet, with such changes as are appropriate to reflect the Senior Unsecured Bridge Loans and consistent with the Documentation Precedent (and in any event such representations and warranties shall not be more restrictive to the Company and its subsidiaries than those set forth in the documentation for the Senior Facilities).
Covenants: The Senior Unsecured Bridge Loan Documentation will contain such affirmative covenants consistent, to the extent applicable, with those of the Term Facility and, in addition, a customary securities demand covenant. The Senior Unsecured Bridge Loan Documentation will contain incurrence-based negative covenants with respect to the Company and its restricted subsidiaries consistent with the Senior Unsecured Exchange Notes. In no event, except as expressly set forth herein, will the covenants be more restrictive than the corresponding covenants in the Senior Facilities; provided that the covenants governing the making of distributions and the incurrence of debt and liens may be more restrictive prior to the Conversion Date in a manner to be agreed.
Financial Covenants: None.
Events of Default: Consistent with the Documentation Precedent.
In case an event of default shall occur and be continuing, the holders of at least 25% in aggregate principal amount of the Senior Unsecured Bridge Loans then outstanding, by notice in writing to the Borrower, may declare the principal of, and all accrued interest on, all Senior Unsecured Bridge Loans to be due and payable immediately. If a bankruptcy event of the Borrower occurs, the principal of and accrued interest on the Senior Unsecured Bridge Loans will be immediately due and payable without any notice, declaration or other act on the part of the holders of the Senior Unsecured Bridge Loans. An acceleration notice may be annulled and past defaults (except for monetary defaults not yet cured) may be waived by the holders of a majority in aggregate principal amount of the Senior Unsecured Bridge Loans.
Voting: Amendments and waivers of the Senior Unsecured Bridge Loan Documentation will require the approval of Lenders holding more than 50% of the aggregate amount of the Senior Unsecured Bridge Loans, except that the consent of each Lender directly adversely affected shall be required with respect to (a) reductions of principal, interest or fees payable to such Lender (provided that, waiver of a default or change to financial ratios shall not constitute a reduction of interest for this purpose), (b) extensions of final maturity of the Senior Unsecured Bridge Loans of such Lender (except as provided under the caption "Conversion and Maturity" above) or interest or fee payment dates, (c) releases of all or substantially all of the value of the Senior Unsecured Bridge Facility Guarantees (other than in connection with any release of the relevant Senior Unsecured Bridge Facility Guarantees permitted by the Senior Unsecured Bridge Loan Documentation), (d) additional restrictions on the right to exchange Senior Unsecured Term Loans for Senior Unsecured Exchange Notes or any amendment of the rate of such exchange, and (e) any reduction of the voting rights of such Lender.
Cost and Yield Protection: Usual for facilities and transactions of this type consistent with the Documentation Precedent (including, without limitation, customary provisions with respect to Dodd-Frank and Basel III).
Expenses and Indemnification: Indemnification by the Borrower of the Senior Unsecured Bridge Facility Agent, Senior Unsecured Bridge Arrangers, Syndication Agent, Documentation Agent, Lenders, their respective successors and assigns, their affiliates and the officers, directors, employees, agents, advisors, controlling persons and members of each of the foregoing (each, an "Indemnified Person") for matters arising out of or in connection with the Commitment Letter, the Fee Letter, the Transactions, the Facilities, the use or intended use of the proceeds of the Facilities or any related transaction or any claim, actions, suits, inquiries, litigation, investigation or other proceeding (regardless of whether such Indemnified Person is a party thereto and regardless of whether such matter is initiated by the Borrower's or the Target's equity holders, creditors or any other third party or by the Borrower, the Target or any of their respective affiliates) that relates to the Transactions, including the Senior Unsecured Bridge Loan Facility, the Acquisition or any transactions in connection therewith; provided that no Indemnified Person will be indemnified for any loss, claim, damage cost, expense or liability (i) to the extent determined by a court of competent jurisdiction in a final, non-appealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnified Person or any of such Indemnified Person's Related Persons (as defined in Exhibit B to the Commitment Letter), (ii) arising from a material breach of such Indemnified Person's (or any of its Related Persons) obligations under the Senior Unsecured Bridge Loan Documentation (as determined in a final, non-appealable judgment by a court of competent jurisdiction) or (iii) arising from any claim, actions, suits, inquiries, litigation, investigation or proceeding that does not involve an act or omission of the Borrower or any of its affiliates and that is brought by an Indemnified Person against any other Indemnified Person (other than any claim, actions, suits, inquiries, litigation, investigation or proceeding against the Senior Unsecured Bridge Agent or any Senior Unsecured Bridge Arranger, the Documentation Agent or the Syndication Agent in its capacity as such). In addition, all reasonable, documented out-of-pocket expenses (including, without limitation, fees, disbursements and other charges of one firm of counsel for all such persons, taken as a whole (and, if necessary, by a single firm of local counsel in each appropriate jurisdiction for all such persons, taken as a whole) (and, in the case of an actual or perceived conflict of interest where the Indemnified Person affected by such conflict informs you of such conflict and thereafter retains its own counsel with your prior written consent (not to be unreasonably withheld or delayed), of another firm of counsel (and local counsel, if applicable, for such affected Indemnified Person)) of (x) the Senior Unsecured Bridge Agent, Senior Unsecured Bridge Arrangers, the Syndication Agent, the Documentation Agent and the Lenders for the enforcement costs and documentary taxes associated with the Senior Unsecured Bridge Facility and (y) the Senior Unsecured Bridge Agent in connection with the preparation, execution and delivery of any amendment, waiver or modification of the Senior Unsecured Bridge Facility (whether or not such amendment, waiver or modification is approved by the Lenders) will in each case be paid by the Borrower if the Closing Date occurs.
Governing Law and Forum: New York; provided, however, that the interpretation of the definition of "Material Adverse Effect" (as defined in Exhibit D) and whether or not a Material Adverse Effect has occurred shall be governed by the law governing the Acquisition Agreement.
Counsel to the Senior
Unsecured Bridge Agent and
the Senior Unsecured Bridge
Arrangers: Davis Polk & Wardwell LLP.
Exh. C-10
ANNEX C-I
Senior Unsecured Term Loans
Maturity: The Senior Unsecured Term Loans will mature on the date that is eight years after the Closing Date.
Interest Rate: The Senior Unsecured Term Loans will bear interest at an interest rate per annum equal to the Total Senior Unsecured Cap. Interest shall be payable on the last day of each fiscal quarter of the Borrower and on the Senior Unsecured Term Loan Maturity Date, in each case payable in arrears and computed on the basis of a 360 day year.
Guarantees: Same as the Senior Unsecured Bridge Loans.
Covenants, Prepayments,
Events of Default and Voting: Upon and after the Conversion Date, the covenants, mandatory prepayment provisions, events of default and voting provisions that would be applicable to the Senior Unsecured Exchange Notes, if issued, will also be applicable to the Senior Unsecured Term Loans in lieu of the corresponding provisions of the Senior Unsecured Bridge Loan Documentation; provided that the optional prepayment provisions applicable to the Senior Unsecured Bridge Loans shall remain applicable to the Senior Unsecured Term Loans.
Conditions Precedent to
Conversion: The conversion of the Senior Unsecured Bridge Loans into Senior Unsecured Term Loans on the Conversion Date is subject to no event of default in effect with respect to a payment or bankruptcy event of default.
Exh. C-I-1
ANNEX C-II
Senior Unsecured Exchange Notes
Issuer: The Borrower, in its capacity as the issuer of the Senior Unsecured Exchange Notes, is referred to as the "Issuer."
Issue: The Senior Unsecured Exchange Notes will be issued under an indenture in a form and on terms (other than as set forth herein) consistent with the Documentation Precedent.
Maturity: The Senior Unsecured Exchange Notes will mature on the date that is eight years after the Closing Date.
Interest Rate: The Senior Unsecured Exchange Notes will bear interest at a fixed rate equal to the Total Senior Unsecured Cap.
Ranking: Consistent with the Senior Unsecured Bridge Loans.
Mandatory Redemption: None.
Optional Redemption: Unless a Senior Unsecured Bridge Demand Failure Event has occurred, in the case of Senior Unsecured Exchange Notes held by an Initial Lender under the Senior Unsecured Bridge Facility or any affiliate of any such Initial Lender (other than an Asset Management Affiliate (as defined below) or with respect to Senior Unsecured Exchange Notes acquired in ordinary course market making), the Issuer may redeem such Senior Unsecured Exchange Notes in whole or in part at par plus accrued and unpaid interest at any time after the issuance thereof. The redemption provisions of the Senior Unsecured Exchange Notes will provide for non-ratable voluntary redemptions of Senior Unsecured Exchange Notes held by any Initial Lender and its affiliates (other than Asset Management Affiliates or with respect to Senior Unsecured Exchange Notes acquired in ordinary course market making) at such prices for so long as such Senior Unsecured Exchange Notes are held by them; provided that such non-ratable voluntary redemption shall, as between such Initial Lender and such affiliates, be made on a pro rata basis.
Except as set forth below, Senior Unsecured Exchange Notes held by any party that is not an Initial Lender under the Senior Unsecured Bridge Facility and is not affiliated with any such Initial Lender (other than bona fide investment funds and entities that manage assets on behalf of unaffiliated third parties (the "Asset Management Affiliates") or in ordinary course market making), will be non-callable until the third anniversary of the Closing Date.
Exh. C-II-1
Prior to the third anniversary of the Closing Date, the Issuer may redeem such Senior Unsecured Exchange Notes at a make-whole price based on U.S. Treasury notes with a maturity closest to the third anniversary of the Closing Date plus 50 basis points.
Prior to the third anniversary of the Closing Date, the Issuer may redeem up to 40% of such Senior Unsecured Exchange Notes in a principal amount not in excess of an amount equal to the amount of proceeds from an equity offering at a price equal to par plus the coupon on such Senior Unsecured Exchange Notes.
After the third anniversary of the Closing Date, Senior Unsecured Exchange Notes will be callable at par plus accrued interest plus a premium equal to 50% of the coupon on such Senior Unsecured Exchange Notes, which premium shall decline to 25% of the coupon on such Senior Unsecured Exchange Notes on the fourth anniversary of the Closing Date and to zero on the fifth anniversary of the Closing Date.
Offer to Purchase from
Asset Sale Proceeds: The Issuer will be required to make an offer to repurchase the Senior Unsecured Exchange Notes with 100% of the net cash proceeds from any non-ordinary course asset sales or dispositions by the Company or any restricted subsidiary in accordance with the Documentation Precedent to the extent any such proceeds are not otherwise applied in a manner consistent with the Documentation Precedent; provided that the amount of any net cash proceeds that would otherwise be subject to any asset sale offer requirements will be reduced to 50% and 0% respectively of such net cash proceeds, if at the time of receipt of the net cash proceeds from any such asset sale or other disposition or at any time during the reinvestment period, after giving effect to such asset sale and the application of the proceeds thereof on a Pro Forma Basis, the Net Total Leverage Ratio is no greater, relative to the Net Total Leverage Ratio on the Closing Date, than the First Mandatory Prepayment Stepdown Ratio and the Second Mandatory Prepayment Stepdown Ratio (applicable to the Senior Facilities) are relative to the Net First Lien Leverage Ratio on the Closing Date.
Offer to Repurchase Upon a
Change of Control: The Issuer will be required to make an offer to repurchase the Senior Unsecured Exchange Notes following the occurrence of a "change of control" (to be defined in a manner consistent with the Documentation Precedent) at a price in cash equal to 101% of the outstanding principal amount thereof, plus accrued and unpaid interest to, but not including, the date of repurchase.
Defeasance and Discharge
Provisions: Customary for high yield debt securities consistent with the Documentation Precedent.
Modification: Customary for high yield debt securities consistent with the Documentation Precedent.
Registration Rights: None (Rule 144A for life).
Covenants: Substantially the same as those in the Documentation Precedent for high yield debt securities (including in respect of baskets and carveouts to such covenants), subject to the provisions below; provided, that, such covenants shall in no event be more restrictive than the corresponding covenant in the Term Facility (including, without limitation, with respect to acquisitions, dispositions and restricted payments). For the avoidance of doubt, there shall be no financial maintenance covenants.
1. The provisions limiting indebtedness shall, in addition to carveouts consistent with the Documentation Precedent:
· permit the incurrence of indebtedness by the Company and its restricted subsidiaries if either (x) the Fixed Charge Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 or (y) the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Senior Unsecured Bridge Total Debt Incurrence Ratio Level (as defined in the Fee Letter);
· provide for the incurrence of indebtedness pursuant to baskets consistent with the Documentation Precedent and include a general indebtedness basket of at least the Senior Unsecured Bridge Facility General Debt Cap (as defined in the Fee Letter); and
· provide that the amount of indebtedness incurred under the "bank basket" will not exceed an amount equal to the sum of (i) the aggregate amount of the Senior Facilities on the Closing Date (including the Incremental Dollar Amount of the accordion provisions thereunder), plus a cushion equal to the Senior Unsecured Bridge Facility Bank Basket Cushion (as defined in the Fee Letter), plus (ii) such additional amount of indebtedness that may be incurred that would not cause the Net First Lien Leverage Ratio on a Pro Forma Basis to exceed the Senior Unsecured Bridge First Lien Incurrence Ratio Level (as defined in the Fee Letter) on the date of incurrence (or, in connection with an acquisition, investment or new project, would not cause the Net First Lien Leverage Ratio to be worse on a Pro Forma Basis than the Net First Lien Leverage Ratio in effect immediately prior to such acquisition, investment or new project and, in each case for purposes of such calculations, disregarding an aggregate outstanding principal amount of indebtedness not to exceed the Acquisition Debt Cap (as defined in the Fee Letter)) (it being understood that any indebtedness incurred under clause (ii) above shall be included in the calculation of the Net First Lien Leverage Ratio for such purpose).
2. The provisions limiting liens shall provide for customary permitted liens consistent with the Documentation Precedent and include (i) a general permitted liens basket of at least the Senior Unsecured Bridge Facility General Lien Cap (as defined in the Fee Letter), (ii) the ability to incur liens to secure indebtedness to the extent that the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than the Senior Unsecured Bridge Secured Debt Incurrence Ratio Level (as defined in the Fee Letter) (or, in connection with an acquisition, investment or new project, would not cause the Net Secured Leverage Ratio to be worse on a Pro Forma Basis than the Net Secured Leverage Ratio in effect immediately prior to such acquisition, investment or new project and, in each case for purposes of such calculations, disregarding an aggregate outstanding principal amount of indebtedness not to exceed the Acquisition Debt Cap) and (iii) the ability to incur liens on assets of non-Note Guarantor subsidiaries so long as such liens secure obligations of non-Note Guarantor subsidiaries that are otherwise permitted.
3. The provisions limiting restricted payments shall provide (i) that the restricted payment "builder" will be based on 50% of consolidated net income (to be defined in a manner consistent with the Documentation Precedent) of the Company and its subsidiaries from the Closing Date and include a "starter" basket equal to the Senior Unsecured Bridge Starter Basket Amount (as defined in the Fee Letter), subject, in the case of dividends and stock repurchases, to no continuing event of default, (ii) for the making of other restricted payments and restricted investments pursuant to baskets consistent with the Documentation Precedent and (x) include a general restricted payment basket of the Senior Unsecured Bridge Facility General Restricted Payment Cap (as defined in the Fee Letter), (y) permit restricted payments so long as the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Senior Unsecured Bridge Restricted Payment Ratio (as defined in the Fee Letter), subject, in the case of dividends and stock repurchase, to no continuing event of default, and (z) permit investments so long as the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the Senior Unsecured Bridge Investment Ratio (as defined in the Fee Letter) and (iii) the amount of the restricted payment "builder" will be increased by an amount equal to the amount of any net cash proceeds that are either declined by any holder of Senior Unsecured Exchange Notes that is made pursuant to any asset sale offer for the Senior Unsecured Exchange Notes or are not required to be applied to make an asset sale offer in accordance with the terms of the definitive documentation for the Senior Unsecured Exchange Notes.
Events of Default: Customary for high yield debt securities and consistent with the Documentation Precedent.
EXHIBIT D
Conditions Precedent to Initial Borrowings 6
Except as otherwise set forth below, the initial borrowing under each of the Facilities shall be subject to the following additional conditions precedent (which shall be satisfied or waived prior to or substantially concurrent with the other Transactions):
1. The Acquisition shall be consummated substantially simultaneously or substantially concurrent with the closing under the Senior Facilities substantially on the terms described in the Acquisition Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by the Company that is materially adverse to the interests of the Initial Lenders (in their capacities as such) unless it is approved by the Lead Arrangers (which approval shall not be unreasonably withheld, delayed or conditioned). For purposes of the foregoing condition, it is hereby understood and agreed that any reduction in the purchase price in connection with the Acquisition Agreement, other than a reduction in accordance with the terms of the Acquisition Agreement as in effect on the date hereof (including, without limitation, working capital adjustments), shall be deemed to be materially adverse to the interests of the Initial Lenders (in their capacities as such), unless either such reduction of the purchase price is less than the Purchase Price Reduction Cap (as defined in the Fee Letter), or such reduction is applied as follows: (x) to reduce the required Equity Contribution by the Equity Contribution Reduction Percentage (as defined in the Fee Letter) and (y) to reduce the amount of the Term Facility and the Senior Unsecured Bridge Facility on a pro rata basis by the Facilities Reduction Percentage (as defined in the Fee Letter). The Equity Contribution shall have been made (or substantially simultaneously or substantially concurrently with the closing under the Senior Facilities shall be made) in at least the amount set forth in Exhibit A.
2. Since the date of the Acquisition Agreement, there shall not been, nor shall there be, any Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the date hereof). This condition shall be tested on the date of the Court Hearing (as defined in the Acquisition Agreement).
3. The Financial Institutions shall have received a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of the Company and its subsidiaries (based on the financial statements of the Target referred to in paragraph 4 below) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date, or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which reflect adjustments customary for Rule 144A transactions, it being understood that such pro forma financial statements need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, and that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower.
6 All capitalized terms used but not defined herein shall have the meanings assigned thereto in the Commitment Letter to which this Exhibit D is attached or in the other Exhibits thereto.
Exh. D-1
4. The Financial Institutions shall have received (a) audited consolidated balance sheets of the Target and its subsidiaries as of (i) the fiscal years ended December 31, 2018 and December 31, 2019 and (ii) if the Closing Date occurs after March 31, 2021, the fiscal year ending December 31, 2020 and related statements of operations, shareholders' equity and cash flows of the Target and its subsidiaries for the two most recently completed fiscal years ended at least 90 days before the Closing Date and (b) unaudited consolidated balance sheet and related statements of operations, shareholders' equity and cash flows of the Target and its subsidiaries, for each subsequent fiscal quarter ended after January 1, 2021 at least 45 days before the Closing Date (other than the fiscal fourth quarter of any fiscal year), in each case prepared in accordance with GAAP, subject to normal year-end adjustments, reclassifications and the absence of footnotes; provided that the filing of the foregoing financial statements with SEC within the time periods specified in clauses (a) and (b) above will satisfy the foregoing requirements. Each Lead Arranger and each Initial Lender acknowledges and agrees that it has received the financial statements described in clause (a)(i) of this paragraph 4.
5. With respect to the Senior Unsecured Bridge Facility, (i) one or more investment banks reasonably satisfactory to the Financial Institutions (such investment banks, collectively, the "Investment Banks") shall have been engaged to privately place the Senior Unsecured Notes (the Financial Institutions hereby acknowledge the satisfaction of the engagement requirement as of the date hereof), and the Borrower shall have used commercially reasonable efforts to ensure that such Investment Banks each shall have received, not later than 10 business days prior to the Closing Date, a customary preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum for the Senior Unsecured Notes suitable for use in a customary (for high yield debt securities consistent with the Documentation Precedent) "high-yield road show" relating to the Senior Unsecured Notes in a form customary for offerings under Rule 144A, which contains all customary financial statements, pro forma financial statements and other data to be included therein (including all audited financial statements, all unaudited financial statements and, in the case of unaudited financial statements, reviewed by its independent accountants as provided in Statement on Auditing Standards No. 100) (subject to exceptions customary for a Rule 144A offering involving high yield debt securities, including that such offering memorandum shall not be required to include "segment" financial information, financial statements or information required by Rules 3-09, 3-10 or 3-16 of Regulation S-X, Item 402 and Item 601 of Regulation S-K, XBRL exhibits, information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A and other information regarding executive compensation and related party disclosure and any Compensation Discussion and Analysis otherwise required by Regulation S-K Item 402(b) or other information customarily excluded from a Rule 144A offering memorandum), necessary for the Investment Banks to receive customary (for high yield debt securities) "comfort" (including "negative assurance" comfort) in connection with the offering of the Senior Unsecured Notes and (ii) the Borrower shall have used commercially reasonable efforts to ensure that the Investment Banks shall have been afforded a period of at least 10 business days following receipt of an offering document including the information described in clause (i) to seek to place the Senior Unsecured Notes (the "Bridge Marketing Period"); provided that (x) January 18, 2021, February 15, 2021 and May 31, 2021 shall not constitute business days for purposes of such Bridge Marketing Period (provided, however, that such exclusions shall not restart such period) and (y) if such Bridge Marketing Period has not been completed on or prior to December 21, 2020, such Bridge Marketing Period shall not commence until January 4, 2021.
6. With respect to the Term Facility the Borrower shall have used commercially reasonable efforts to ensure that the Arrangers shall have been afforded a period of at least 10 business days to seek to syndicate the Term Facility (the "Bank Marketing Period"); provided that (x) January 18, 2021, February 15, 2021 and May 31, 2021 shall not constitute business days for purposes of such Bank Marketing Period (provided, however, that such exclusions shall not restart such period) and (y) if such Bank Marketing Period has not been completed on or prior to December 21, 2020, such Bank Marketing Period shall not commence until January 4, 2021.
7. All (a) fees required to be paid on the Closing Date pursuant to the Commitment Letter and the Fee Letter and (b) reasonable and documented out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, in the case of this clause (b), to the extent invoiced at least three business days prior to the Closing Date, shall, in each case, upon the initial borrowing under the Senior Facilities, have been paid (which amounts may be offset against the proceeds of the Term Facility).
Notwithstanding anything in this Exhibit D, the Commitment Letter, the Term Sheets, the Fee Letter or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (a) the only representations (and related defaults) the making or accuracy of which shall be a condition to the availability of the Facilities on the Closing Date shall be (i) such of the representations made by or with respect to the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders (in their capacities as such) (but only to the extent that the Company has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement) (the "Target Representations") and (ii) the Specified Representations (as defined below) made by the Borrower and the Guarantors in the definitive documentation for the Facilities, and (b) the terms of the definitive documentation for the Facilities shall be such that they do not impair the availability of the Facilities on the Closing Date if the conditions set forth in this Exhibit D, in Section 6 of the Commitment Letter and in each of the Term Sheets under the paragraph titled "Conditions Precedent to Initial Borrowing" are satisfied (or waived by the Initial Lenders) (it being understood that, to the extent any security interest in the intended Collateral or any deliverable related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the possession of the stock certificate of the Borrower) is not or cannot be provided and/or perfected on the Closing Date (1) without undue burden or expense or (2) after your use of commercially reasonable efforts to do so, then the provision and/or perfection of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but shall be required to be delivered after the Closing Date pursuant to arrangements and timing to be mutually agreed by the Senior Facilities Agent and the Borrower). "Specified Representations" means the representations of the Borrower and each Guarantor (to the extent applicable to such Guarantor in the Documentation Precedent) in the definitive documentation with respect to the Facilities relating to organizational existence, corporate power and authority to enter into the definitive documentation relating to the Facilities, due authorization and execution of the definitive documentation relating to the Facilities, no conflict with the Borrower's or the Guarantors' organizational documents with respect to the definitive documentation relating to the Facilities, delivery and enforceability of such definitive documentation relating to the Facilities against the Borrower and the Guarantors, as applicable, Closing Date solvency of the Company on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby (solvency to be defined in a manner consistent with the solvency certificate set forth in Exhibit E hereto), Federal Reserve margin regulations, the Investment Company Act, PATRIOT Act, the creation, validity and perfection of the security interest granted in the intended Collateral to be perfected (except as provided above) and, with respect to the use of proceeds of the Facilities, FCPA, OFAC and laws against sanctioned persons.
EXHIBIT E
FORM OF
SOLVENCY CERTIFICATE
[ ], 20[ ]
This Solvency Certificate is delivered pursuant to Section [ ] of the Credit Agreement dated as of [ ], 20[ ], among [ ] (the "Credit Agreement"). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby certifies, solely in [his] [her] capacity as an officer of the Company and not in [his] [her] individual capacity, as follows:
1. I am the [Chief Financial Officer] of the Company. I am familiar with the Transactions, and have reviewed the Credit Agreement, financial statements referred to in Section [ ] of the Credit Agreement and such documents and made such investigation as I have deemed relevant for the purposes of this Solvency Certificate.
2. As of the date hereof, immediately after giving effect to the consummation of the Transactions, on and as of such date (i) the fair value of the assets of the Company and its subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Company and its subsidiaries on a consolidated basis; (ii) the present fair saleable value of the property of the Company and its subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Company and its subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Company and its subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Company and its subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
3. As of the date hereof, immediately after giving effect to the consummation of the Transactions, the Company does not intend to, and the Company does not believe that it or any of its subsidiaries will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it or any such subsidiary and the timing and amounts of cash to be payable on or in respect of its debts or the debts of any such subsidiary.
This Solvency Certificate is being delivered by the undersigned officer only in [his] [her] capacity as [Chief Financial Officer] of the Company and not individually and the undersigned shall have no personal liability to the Administrative Agent or the Lenders with respect thereto.
[Remainder of Page Intentionally Left Blank]
Exh. E-1
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate on the date first written above.
Title: [Chief Financial Officer]
APOLLO OVERSEAS PARTNERS (DELAWARE 892) IX, L.P.
1. Reference is made to that certain Acquisition Agreement, dated as of the date hereof (as may be amended, restated, supplemented or otherwise modified, the "Acquisition Agreement"), by and between, Catalyst Holdings Limited, a private limited company incorporated in England and Wales (registered no. 13078098) ("BidCo"), and Cardtronics plc, a public limited company incorporated in England and Wales (registered no. 10057418 (the "Company"). Except as otherwise specified herein, each capitalized term used in this letter agreement and not defined herein shall have the meaning ascribed to such term in the Acquisition Agreement.
2. On the terms and subject to the conditions of this letter agreement and of the Acquisition Agreement, each entity listed on Exhibit A attached hereto (each, an "Equity Investor" and together, the "Equity Investors") hereby severally, and not jointly, commits to purchase, or will cause one or more of its Affiliates to purchase, directly or indirectly, its pro rata percentage (as set forth on Exhibit A) of the equity interests of BidCo (or one or more of its Affiliates who are assigned BidCo's rights, interests and obligations under the Acquisition Agreement), immediately prior to the time BidCo and the Company become obligated unconditionally under the Acquisition Agreement to effect the Acquisition for the purpose of enabling BidCo to pay the Consideration pursuant to Section 2.1 of the Acquisition Agreement, which amount, for the avoidance of doubt, excludes any consideration in respect of Excluded Shares (the "Acquisition Amount") for an aggregate amount equal to the percentage of the Commitment set forth opposite such Equity Investor's name on Exhibit A hereto (such amount with respect to each Equity Investor is such Equity Investor's "Maximum Investor Commitment"); provided, that no Equity Investor shall, under any circumstances, be obligated to purchase equity interests or otherwise provide any funds to BidCo in an amount exceeding the amount of such Equity Investor's Maximum Investor Commitment, and the Equity Investors, collectively, shall not, under any circumstances, be obligated to purchase equity interests or otherwise provide any funds to BidCo in an amount exceeding the Commitment. As used in this letter agreement, the term "Commitment" means an amount equal to $845,400,000.00 or such lesser amount that, together with the funds under the Debt Commitment Letters, suffices to fully fund the Acquisition Amount pursuant to, and in accordance with, the Acquisition Agreement. Consummation of the equity investment is subject in all respects to the terms and conditions of this letter agreement and to (i) the satisfaction in full or valid waiver, on or before the Effective Date, of all of the conditions precedent to the obligations of BidCo set forth in Sections 7.1 and 7.2 of the Acquisition Agreement (other than those conditions precedent that by their nature are to be satisfied on the Effective Date, but subject to the concurrent satisfaction or valid waiver of such conditions precedent on the Effective Date), (ii) the satisfaction in full or valid waiver, on or before the Effective Date, of all the conditions precedent to the funding of the Debt Financing (other than the funding of the Commitment) and the concurrent receipt by BidCo of the net cash proceeds of the Debt Financing (on the terms and subject to the conditions described in the Debt Commitment Letters) and (iii) the concurrent consummation of the Acquisition on the terms and subject to the conditions of the Acquisition Agreement. The Commitment shall be used solely as will be required, and solely to the extent necessary, to fund the Acquisition Amount, solely to the extent and when required to be paid by BidCo on the terms and subject to the conditions set forth herein and in the Acquisition Agreement and not for any other purpose whatsoever.
3. Each Equity Investor hereby represents and warrants that: (i) it has all the power and authority to execute, deliver and perform this letter agreement; (ii) the execution, delivery and performance of this letter agreement by each Equity Investor has been duly and validly authorized and approved by all necessary limited partnership, or corporate action, as applicable; (iii) this letter agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against each Equity Investor by Bidco and the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at Law or in equity); and (iv) the execution, delivery and performance by it of this letter agreement do not and will not violate or conflict with any term or provision of the organizational documents of the Equity Investor, including, but not limited to, the Equity Investor's limited partnership agreement, any Law, any order, writ, injunction or decree applicable to such Equity Investor. Notwithstanding anything in this letter agreement to the contrary, in no event will any Equity Investor (together with its assigns) be under any obligation under any circumstances to provide an aggregate amount of funds of more than its Maximum Investor Commitment to BidCo or any other Person (and in no event will the Equity Investors (together with their respective assigns), in the aggregate, be under any obligation under any circumstances to provide an aggregate amount of funds of more than the amount of the Commitment to BidCo or any other Person). The Equity Investors hereby represent and warrant to BidCo that, as of the date hereof, the Equity Investors collectively have, and on the Effective Date will have available, sufficient cash, available lines of credit, capital commitments or other sources of available funds to fulfill the Commitment in full in accordance with the terms and subject to the conditions set forth herein.
4. This letter agreement is being provided to BidCo solely in connection with the Acquisition Agreement and the transactions contemplated thereby. Each party hereto (and any other Person who shall receive a copy hereof as permitted pursuant hereto) shall keep strictly confidential this letter agreement and all information obtained by it with respect to the other parties hereto in connection with this letter agreement, and will use such information solely in connection with the transactions contemplated hereby. Notwithstanding the foregoing, any party hereto and its Representatives (as defined below) may disclose this letter agreement and its terms and conditions (i) to any of such party's Affiliates and its and their respective Affiliates' controlling persons, general or limited partners, officers, directors, employees, investment professionals, managers, equity holders, stockholders, members, agents, assignees, financing sources or other representatives of any of the foregoing (all of the foregoing, collectively, "Representatives") or (ii) if required by applicable Law or by any court order or by a recognized stock exchange, governmental department or agency or other Governmental Entity. Except as set forth herein, this letter agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Equity Investors.
5. Notwithstanding anything that may be expressed or implied in this letter agreement, the Limited Guarantee (as defined below), the Debt Commitment Letters, the Acquisition Agreement or any other document or instrument delivered in connection herewith or therewith, BidCo, by its acceptance of the benefits hereof, and the Company, in its capacity as a third party beneficiary solely as and to the extent specified in, and on the terms and subject to the conditions of Section 6 hereof, each unconditionally and irrevocably covenants, agrees and acknowledges that no Person other than the Equity Investors shall have any obligation or liability hereunder (subject to the terms and conditions set forth herein), and that notwithstanding that each Equity Investor is a partnership, limited partnership or limited liability company (i) no right or remedy, recourse or recovery (whether at Law or equity or in tort, contract or otherwise) hereunder, under the Acquisition Agreement, the Limited Guarantee, the Debt Commitment Letters or under any documents or instruments delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (or the termination or abandonment thereof) or otherwise, or in respect of any oral representations made or alleged to be made in connection herewith or therewith, shall be had against any former, current or future direct or indirect equity holder, controlling person, general or limited partner, officer, director, employee, investment professional, manager, stockholder, member, agent, Affiliate, assignee, financing source or Representative of any of the foregoing or any of their respective successors or assigns (other than BidCo under the Acquisition Agreement and subject to the terms and conditions set forth therein) (any such Person, a "Related Party") of any Equity Investor or any Related Party of any Related Party (including any liabilities or obligations arising under, or in connection with, this letter agreement, the Limited Guarantee, the Debt Commitment Letters, the Acquisition Agreement or any other document or instrument delivered in connection herewith or therewith or the transactions contemplated hereby or thereby (or the termination or abandonment thereof) or otherwise, or in respect of any oral representations made or alleged to be made in connection herewith or therewith, or in respect of any claim (whether at Law or equity or in tort, contract or otherwise), including in the event BidCo breaches (whether willfully, intentionally, unintentionally or otherwise) its obligations under this letter agreement, the Acquisition Agreement, the Limited Guarantee, the Debt Commitment Letters or any other document or instrument delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (or the termination or abandonment thereof), whether or not any such breach is caused by any Equity Investor's breach (whether willfully, intentionally, unintentionally or otherwise) of its obligations under this letter agreement), whether, in each case, by or through piercing of the corporate, limited liability company or limited partnership veil or similar action, by or through a claim by or on behalf of any Equity Investor against any Related Party of an Equity Investor or any Related Party of such Related Party, whether by the enforcement of any judgment or assessment or by any legal or equitable proceedings, or by virtue of any statute, regulation or other applicable Law or otherwise, (ii) it is expressly agreed and acknowledged that no personal liability or obligation whatsoever shall attach to, be imposed on, or otherwise be incurred by any Related Party of any Equity Investor or any Related Party of such Related Party for any liabilities or obligations of the Equity Investors under this letter agreement, the Limited Guarantee, the Acquisition Agreement, the Debt Commitment Letters or any documents or instruments delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (or the termination or abandonment thereof) or otherwise, in respect of any oral representation made or alleged to have been made in connection herewith or therewith or for any claim (whether at Law or equity or in tort, contract or otherwise) based on, in respect of, in connection with, or by reason of such obligations or their creation, and each party hereto hereby irrevocably and unconditionally waives and irrevocably and unconditionally releases all claims (whether arising under equity, contract, tort or otherwise) against such Persons for any such liability or obligation and (iii) none of BidCo or any of its Representatives, on the one hand, or the Company or any of its Affiliates or its or their respective Representatives, on the other hand, shall have any right of remedy, recourse or recovery (whether at Law or equity or in tort, contract or otherwise) against the Equity Investors or otherwise, whether by piercing of the corporate, limited liability company or limited partnership veil or similar action, by a claim (whether at Law or equity or in tort, contract or otherwise), whether by the enforcement of any judgment or assessment or by any legal or equitable proceedings, or by virtue of any applicable Law or otherwise, against the Equity Investors or otherwise, except for (x) BidCo's right to receive the Commitment, as applicable and without duplication, solely to the extent provided in this letter agreement and on the terms and subject to the conditions hereof, (y) the Company's right to receive the Guaranteed Obligation (as defined in the Limited Guarantee), solely to the extent provided in the Limited Guarantee and subject to the terms and conditions set forth therein and (z) the Company's right to enforce this letter agreement as a third party beneficiary in respect of the Commitment solely as and to the extent specified in, and on the terms and subject to the conditions of, Section 6 hereof; provided, however (and notwithstanding anything to the contrary provided herein), that nothing herein shall limit the rights of the Company against BidCo solely to the extent provided in the Acquisition Agreement and subject to the terms and conditions set forth therein.
6. The parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of each other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this letter agreement, and that this letter agreement is not intended to, and does not, confer upon any Person (including the Company or its Affiliates and the Debt Financing Sources and all of the respective Representatives of any of the foregoing) other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause BidCo to enforce, the obligations set forth herein; provided, that the Company may rely upon this letter agreement as an express third party beneficiary solely in the event that the Company is awarded in accordance with, and subject to the terms and conditions of, Section 9.12 of the Acquisition Agreement, specific performance of BidCo's obligation to cause the Equity Financing to be funded in accordance with the terms and conditions of this letter agreement; provided, further, that each Related Party of any Equity Investor and any Related Party of such Related Party may rely upon Section 5 of this letter agreement as a third party beneficiary. Subject to the foregoing sentence, this letter agreement may only be enforced by BidCo at the direction of Apollo Management IX, L.P. (the "Sponsor") in its sole discretion, and BidCo shall have no right to enforce or seek to enforce this letter agreement unless directed to do so by the Sponsor in its sole discretion. BidCo's creditors shall have no right to enforce this or seek to enforce this letter agreement or to cause BidCo to enforce this letter agreement. In no event may the Company, its Affiliates or any of its or their respective Representatives or any other Person (other than BidCo at the direction of the Sponsor in its sole discretion) enforce any aspect of this letter agreement (including with respect to the Commitment) if the Guaranteed Obligation has been paid in full under the Limited Guarantee. This letter agreement may not be amended, restated, supplemented or otherwise modified, and no provision hereof waived or modified, except by an instrument in writing signed by BidCo and each of the Equity Investors.
7. This letter agreement and each Equity Investor's obligation to fund all or any portion of the Commitment will automatically terminate and cease to be of any further force or effect without the need for any further action by any Person (at which time the obligations of each Equity Investor hereunder shall be immediately discharged in full) upon the earliest of (i) the valid termination of the Acquisition Agreement in accordance with its terms, (ii) the Effective Date, (iii) the payment in full by the Equity Investors of their Guaranteed Obligation pursuant to the Limited Guarantee and (iv) the assertion, directly or indirectly, by the Company or any of its Affiliates, or any of its or their respective Representatives, or any other Person, directly or indirectly, claiming by, through or for the benefit of any of the foregoing, of any claim (whether at Law or equity or in tort, contract or otherwise) against any Equity Investor or any Related Party of an Equity Investor or any Related Party of a Related Party in connection with this letter agreement, the Acquisition Agreement, the Debt Commitment Letters, the Limited Guarantee or any other document or instrument delivered in connection herewith or therewith or any of the transactions contemplated hereby or thereby (including the termination or abandonment thereof) or otherwise (including in respect of any oral representations made or alleged to be made in connection therewith or herewith); except, in the case of clause (iv), for (A) claims under the Acquisition Agreement, solely to the extent provided therein, solely against the parties thereto and subject to the terms and conditions set forth therein, (B) exercising third party beneficiary rights under this letter agreement, solely to the extent provided herein, solely against the parties thereto and subject to the terms and conditions hereof, including seeking specific performance of BidCo's obligation to cause the Commitment to be funded to effect the closing of the transactions contemplated by the Acquisition Agreement or (C) claims under the Limited Guarantee, solely to the extent provided therein, solely against the parties thereto and subject to the terms and conditions set forth therein. This Section 7 and Sections 10, 11 and 12 hereof shall survive the termination of this letter agreement. Immediately upon termination of this letter agreement and without the need for any further action by any Person, no Equity Investor or any Related Party of an Equity Investor or any Related Party of a Related Party shall have any further obligation or liability hereunder.
8. Concurrently with the execution and delivery of this letter agreement, the Equity Investors are executing and delivering to the Company a Limited Guarantee, dated as of the date hereof (as may be amended, restated, supplemented or otherwise modified, the "Limited Guarantee"). Notwithstanding anything to the contrary in this letter agreement, the Acquisition Agreement, the Debt Commitment Letters or the Limited Guarantee or any other document or instrument delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (or the termination or abandonment thereof) or otherwise the Company's remedies against the Equity Investors under the Limited Guarantee (subject to the terms and conditions set forth therein) shall, and are intended to, be the sole and exclusive direct or indirect remedies available to the Company and its Affiliates or their respective Representatives and any other Person, directly or indirectly, claiming by, through or for the benefit of any of the foregoing, against the Equity Investors or any Related Party of the Equity Investors or any Related Party of a Related Party for any liability, obligation, loss, damage or recovery of any kind whatsoever (including any multiple, consequential, indirect, special, statutory, exemplary or punitive damages or damages arising from loss of profits, business opportunities or goodwill, diminution in value or any other losses, whether at Law, in equity, in contract, in tort or otherwise) arising under or in connection with any breach of this letter agreement, the Acquisition Agreement, the Limited Guarantee, the Debt Commitment Letters, or any documents or instruments delivered in connection herewith or therewith or the transactions contemplated hereby or thereby (including the termination or abandonment thereof) or otherwise (in each case, whether willfully, intentionally, unintentionally or otherwise) or the failure of the Acquisition to be consummated for any reason or otherwise in connection with the transactions contemplated hereby and thereby or otherwise or in respect of any oral representations made or alleged to have been made in connection herewith or therewith (whether or not BidCo's breach is willful, intentional, unintentional or otherwise, or whether or not caused by the breach (whether willful, intentional, unintentional or otherwise) of an Equity Investor of its obligations under this letter agreement); provided, that if (i) the Commitment is made in full hereunder and the Effective Date occurs, neither the Company nor any of its Affiliates or any of its or their respective Representatives, nor any other Person, directly or indirectly, claiming by, through or for the benefit of any of the foregoing, may recover any amount whatsoever under the Limited Guarantee and (ii) the Guaranteed Obligations are satisfied in full, neither the Company nor any of its Affiliates or any of its or their respective Representatives, nor any other Person, directly or indirectly, claiming by, through or for the benefit of any of the foregoing, may cause the Commitment to be funded. Notwithstanding anything that may be expressed or implied in this letter agreement, the Acquisition Agreement, the Debt Commitment Letters, the Limited Guarantee or any other document or instrument delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (including the termination or abandonment thereof) or otherwise, for the avoidance of doubt, in no event shall any Equity Investor have any obligation to make any payment or contribution hereunder at any time if the Effective Date does not occur.
9. BidCo shall indemnify and hold harmless each of the Equity Investors and their respective Affiliates from and against any and all out-of-pocket losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the Equity Investors' or their Affiliates' direct or indirect ownership of equity of BidCo or its successors; provided, that no Equity Investor or any Affiliate thereof shall be entitled to any indemnification pursuant to this letter agreement with respect to any investment losses or other liabilities that may be incurred by such Equity Investor or its Affiliates solely in their capacity as an investor (directly or indirectly) in BidCo and its Affiliates. Notwithstanding anything to the contrary in this letter agreement, the Acquisition Agreement, the Debt Commitment Letters, the Limited Guarantee or any other or any document or instrument delivered in connection herewith or therewith or in connection with the transactions contemplated hereby or thereby (including the termination or abandonment thereof), this Section 9 shall survive the Effective Date indefinitely and shall be binding, jointly and severally, on all successors, assigns, heirs or representatives of BidCo and its Affiliates.
10. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY DISPUTE ARISING OUT OF OR RELATING TO THE FINANCING OR THE COMMITMENT LETTERS OR THE PERFORMANCE OF SERVICES THEREUNDER OR RELATED THERETO).
11. This letter agreement, and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon, arise out of or relate to this letter agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice or conflict of Law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably agrees that any Proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, solely in the case that the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware) (the "Chosen Courts"). Each of the parties hereto hereby irrevocably submits with regard to any such Proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the Chosen Courts and agrees that it will not bring any action relating to this letter agreement or any of the transactions contemplated by this letter agreement in any court other than the Chosen Courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any Proceeding with respect to this letter agreement, (A) any claim that it is not personally subject to the jurisdiction of the Chosen Courts, (B) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) to the fullest extent permitted by applicable Law, any claim that (1) the Proceeding in such court is brought in an inconvenient forum, (2) the venue of such Proceeding is improper or (3) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts. To the fullest extent permitted by applicable Law, each of the parties hereto hereby consents to the service of process in accordance with Section 9.13 of the Acquisition Agreement; provided, that (i) nothing herein shall affect the right of any party to serve legal process in any other manner permitted by Law and (ii) each such party's consent to jurisdiction and service contained in this Section 11 is solely for the purpose referred to in this Section 11 and shall not be deemed to be a general submission to said courts or in the State of Delaware other than for such purpose.
12. This letter agreement may be executed (including by facsimile transmission, ".pdf," or other electronic transmission) in one or more counterparts, and by the different parties to this letter agreement in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties to this letter agreement and delivered (including by facsimile transmission, ".pdf" or other electronic transmission) to the other parties to this letter agreement.
13. This letter agreement, together with the Acquisition Agreement and the Limited Guarantee, constitute the entire agreement, and supersede and cancel all prior and contemporaneous agreements, understandings and statements, written or oral, among the undersigned or any of their respective Affiliates or any other Person, with respect to the subject matter hereof.
14. For purposes of this letter agreement, references to (i) the "Financing" and "Debt Financing" shall include the Debt Financing contemplated by the Debt Commitment Letters and any Alternative Financing, (ii) the "Commitment Letter" and the "Debt Commitment Letters" shall include the Debt Commitment Letters to the extent not superseded by the Alternative Financing Commitment Letter and any such Alternative Financing Commitment Letter, and (iii) the "Debt Financing Sources" shall include the financial institutions and other entities party to any Alternative Financing Commitment Letter.
By: Apollo Advisors IX, L.P.,
its general partner
By: Apollo Capital Management IX, LLC,
By: /s/ Laurie D. Medley
Name: Laurie D. Medley
Title: Vice President
By: Apollo Overseas Partners (Lux) IX GP S.A R.L.,
By: Apollo Investment Management Europe LLP,
its alternative investment fund manager
By: Apollo Management IX L.P.,
its delegee
By: AIF IX Management, LLC,
Accepted and Agreed
By: /s/ Robert Kalso-Ramos
Equity Investor Maximum Investor
Commitment Pro Rata Percentage
Apollo Investment Fund IX, L.P. $ 365,889,120.00 43.28 %
Apollo Overseas Partners (Delaware) IX, L.P. $ 212,956,260.00 25.19 %
Apollo Overseas Partners (Delaware 892) IX, L.P. $ 74,479,740.00 8.81 %
Apollo Overseas Partners IX, L.P. $ 52,752,960.00 6.24 %
APOLLO OVERSEAS PARTNERS (LUX) IX, SCSP $ 139,321,920.00 16.48 %
Total $ 845,400,000.00 100.00 %
Exhibit (c)(2)
December 14, 2020 Cardtron i cs plc Board Discussion Materials
2 These materials have been prepared and are provided by Goldman Sachs on a confidential basis solely for the information and assistance of the Board of Directors (the "Board") of Cardtronics Plc (the "Company") in connection with its consideration of the matters referred to herein . These materials and Goldman Sachs' presentation relating to these materials (the "Confidential Information") may not be disclosed to any third party or circulated or referred to publicly or used for or relied upon for any other purpose without the prior written consent of Goldman Sachs . The Confidential Information was not prepared with a view to public disclosure or to conform to any disclosure standards under any state, federal or international securities laws or other laws, rules or regulations, and Goldman Sachs does not take any responsibility for the use of the Confidential Information by persons other than those set forth above . Notwithstanding anything in this Confidential Information to the contrary, the Company may disclose to any person the US federal income and state income tax treatment and tax structure of any transaction described herein and all materials of any kind (including tax opinions and other tax analyses) that are provided to the Company relating to such tax treatment and tax structure, without Goldman Sachs imposing any limitation of any kind . The Confidential Information has been prepared by the Investment Banking Division of Goldman Sachs and is not a product of its research department . Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non - financial activities and services for various persons and entities . Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co - invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of the Company, any other party to any transaction and any of their respective affiliates or any currency or commodity that may be involved in any transaction . Goldman Sachs' investment banking division maintains regular, ordinary course client service dialogues with clients and potential clients to review events, opportunities, and conditions in particular sectors and industries and, in that connection, Goldman Sachs may make reference to the Company, but Goldman Sachs will not disclose any confidential information received from the Company . The Confidential Information has been prepared based on historical financial information, forecasts and other information obtained by Goldman Sachs from publicly available sources, the management of the Company or other sources (approved for our use by the Company in the case of information from management and non - public information) . In preparing the Confidential Information, Goldman Sachs has relied upon and assumed, without assuming any responsibility for independent verification, the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by us, and Goldman Sachs does not assume any liability for any such information . Goldman Sachs does not provide accounting, tax, legal or regulatory advice . Goldman Sachs has not made an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off - balance sheet assets and liabilities) of the Company or any other party to any transaction or any of their respective affiliates and has no obligation to evaluate the solvency of the Company or any other party to any transaction under any state or federal laws relating to bankruptcy, insolvency or similar matters . The analyses contained in the Confidential Information do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold or purchased . Goldman Sachs' role in any due diligence review is limited solely to performing such a review as it shall deem necessary to support its own advice and analysis and shall not be on behalf of the Company . Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses, and Goldman Sachs does not assume responsibility if future results are materially different from those forecast . The Confidential Information does not address the underlying business decision of the Company to engage in any transaction, or the relative merits of any transaction or strategic alternative referred to herein as compared to any other transaction or alternative that may be available to the Company . The Confidential Information is necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Goldman Sachs as of, the date of such Confidential Information and Goldman Sachs assumes no responsibility for updating or revising the Confidential Information based on circumstances, developments or events occurring after such date . The Confidential Information does not constitute any opinion, nor does the Confidential Information constitute a recommendation to the Board, any security holder of the Company or any other person as to how to vote or act with respect to any transaction or any other matter . The Confidential Information, including this disclaimer, is subject to, and governed by, any written agreement between the Company, the Board and/or any committee thereof, on the one hand, and Goldman Sachs, on the other hand . Disclaimer
3 As of Dec - 2020 | ($ in millions, except per share) Review of Management's Synthesis Case Source: Management Synthesis Case approved for Goldman Sachs' use by Catalyst ("Management Synthesis Case"). 1 2020E and 2021E Adj. EBITDA includes business rate recovery of $37mm and $12.7mm, respectively. Actuals Projections CAGR FYE Dec-31 2019A 2020E 2021E 2022E 2023E 2024E 2025E '20E-'25E '22E-'25E Income Statement North America $863 $778 $831 $886 $928 $966 $1,007 5.3% 4.4% % Growth 6.9% 6.6% 4.7% 4.1% 4.2% Europe & Africa $396 $268 $319 $321 $335 $342 $348 5.4% 2.7% % Growth 18.8% 0.9% 4.4% 2.1% 1.7% Australia & New Zealand $100 $70 $72 $69 $65 $61 $57 (3.8)% (6.0)% % Growth 3.4% (4.3)% (6.4)% (5.8)% (5.7)% Eliminations and Other $(10) $(6) $0 $(5) $(5) $(5) $(5) Revenue $1,349 $1,110 $1,222 $1,271 $1,323 $1,364 $1,407 4.9% 3.5% % Growth (17.7)% 10.1% 4.0% 4.1% 3.1% 3.2% Cost of Revenue $(885) $(704) $(778) $(804) $(838) $(866) $(887) % of Revenue (65.6)% (63.4)% (63.7)% (63.3)% (63.3)% (63.5)% (63.0)% SG&A $(158) $(141) $(163) $(171) $(175) $(178) $(182) % of Revenue (11.7)% (12.7)% (13.3)% (13.4)% (13.2)% (13.1)% (12.9)% Stock-Based Compensation $21 $22 $22 $22 $22 $22 $22 % of Revenue 1.6% 2.0% 1.8% 1.7% 1.7% 1.6% 1.6% Adjusted EBITDA¹ $308 $267 $281 $296 $311 $320 $339 4.9% 4.6% % Growth (13.5)% 5.6% 5.2% 4.9% 3.2% 5.8% % Margin 22.8% 24.0% 23.0% 23.3% 23.5% 23.5% 24.1% Adjusted EPS $2.52 $1.73 $1.90 $2.29 $2.79 $3.14 $3.48 15.0% 15.0% % Growth (31.2)% 9.7% 20.4% 22.2% 12.3% 10.8% h h Cash Flow Capex $125 $90 $98 $102 $106 $109 $113 4.6% 3.5% % of Revenue 9.3% 8.1% 8.0% 8.0% 8.0% 8.0% 8.0% EBITDA - Capex $183 $176 $184 $194 $205 $211 $226 5.1% 5.2% % Growth (3.6)% 4.1% 5.9% 5.3% 3.2% 7.2% % Margin 13.6% 15.9% 15.0% 15.3% 15.5% 15.5% 16.1%
4 ($ in millions, except per share values) Illustrative Transaction Overview Source: CapitalIQ , Management Synthesis Case. 1 Share price of $25.87 on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing on 09 - Dec - 2020. 2 Denotes implied fully diluted market capitalization based on 44.490mm basic shares outstanding, and options diluted calculated using the Treasury Stock Method, based on 1.298mm PSUs, 614k RSUs, 217k options at $22.31 strike price, 133k options at $31.99 strike price, and 234k options at $20.92 strike price as of 13 - Dec - 2020, per Catalyst management. 3 Based on Q3 2020A data, per latest Company filings. 4 Denotes trading day VWAPs calculated as of unaffected date of 08 - Dec - 2020. 5 Since pre - COVID S&P high of 20 - Feb - 2020. Unaffected¹ Apollo Final Bid Purchase Price per Share $25.87 $35.00 Premium to Unaffected Share Price¹ $ 25.87 0.0% 35.3% Basic Shares Outstanding 44.490 44.490 Options Dilution 1.987 2.097 Fully Diluted Shares Outstanding 46.477 46.587 Diluted Equity Value² $1,202.4 $1,630.5 (+) Total Debt³ 914.4 914.4 (-) Cash and Cash Equivalents³ (263.5) (263.5) (+) Minority Interest³ (0.1) (0.1) Enterprise Value $1,853.2 $2,281.3 Premium to Unaffected Prices ⁴ Price VWAP 30 Days $ 21.93 18.0% 59.6% VWAP 90 Days 21.51 20.3 62.7 VWAP 180 Days 21.85 18.4 60.2 VWAP Since COVID ⁵ 23.62 9.5 48.2 52 Week High (on 01/22/2020) 46.94 (44.9) (25.4) 52 Week Low (on 04/01/2020) 15.93 62.4 119.7 Multiples Analysis Metric Management Synthesis Case 2020E EV/EBITDA $267 7.0x 8.6x 2021E EV/EBITDA 281 6.6 8.1 2022E EV/EBITDA 296 6.3 7.7 2020E P/E $1.73 14.9x 20.2x 2021E P/E 1.90 13.6 18.4 2022E P/E 2.29 11.3 15.3
5 $ 27.06 $ 36.20 $ 6.01 $ 58.74 $ 22.67 $ 37.11 $ 28.46 $ 35.70 $ 20.62 $ 38.11 $ 15.93 $ 46.94 $ 21.00 $ 35.00 - $ 40.00 4 Key Metric Preliminary Range Assumptions / Observations Discounted Cash Flow Analysis – Synthesis Case uFCF 5 - year DCF, cash flow discounted back to 30 - Sep - 2020 Low: 8.5% WACC, 6.0x LTM EBITDA High: 7.5% WACC, 7.5x LTM EBITDA Present Value of Future Share Price NTM Adj. P/E Multiple range of 12.0x - 16.0x NTM Adj. P/E 9.5% cost of equity Premia Analysis Premium range of 10% – 38% based on range of 25 th – 75 th percentile of 1 - day premia for precedent transactions; all - cash, control transactions of U.S. - based targets $1 - $10bn in EV since 2015 1 Precedent Transactions 3 2020E EBITDA $267mm Low: 3.5x LTM EBITDA High: 12.7x LTM EBITDA Based on LTM EBITDA multiples for selected payments transactions For Reference Public Comps 2021E EBITDA $281mm Low: 5.7x 2021E EBITDA High: 8.6x 2021E EBITDA Based on range of 2021E EBITDA multiple for selected core ATM / Cash peers, as of 11 - Dec - 2020 52 - Week Range High: 22 - Jan - 2020 Low: 01 - Apr - 2020 Analyst Price Targets Range of price targets for 5 analysts High: Wells Fargo (10 - Dec - 2020) 5 Low: Barclays (30 - Oct - 2020) Implied Share Prices | ($ in millions) Illustrative Summary of Financial Analyses Source: Management Synthesis Case. Market data per CapitalIQ . 1 Premia analysis calculated on unaffected share price of $25.87. 2 Share price on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing, per CapitalIQ . 3 Implied share price calculated based on Q3 2020A net debt balance of $651mm and minority interest of $(0.1)mm; 44.490mm basic shares outstanding; and options diluted calculated using the Treasury Stock Method, based on 1.298mm PSUs, 614 k R SUs, 217k options at $22.31 strike price, 133k options at $31.99 strike price, and 234k options at $20.92 strike price as of 13 - Dec - 2020, per Catalyst management. 4 $35 denotes upper range prior to 13D filing on 09 - Dec - 2020; $40 denotes upper range per reports available as of 11 - Dec - 2020. 5 Note Wells Fargo (10 - Dec - 2020) research report states that bids could fall between the $40 - $45 range. Apollo Final Bid: $35.00 Unaffected Share Price 2 : $25.87
6 Management Synthesis Case | ($ in millions) Illustrative Discounted Cash Flow Source: Company filings, Management Synthesis Case. Note: Valuation as of 30 - Sep - 2020. 1 Implied share price calculated based on Q3 2020A net debt balance of $651mm and minority interest of $(0.1)mm; 44.490mm basic shares outstanding; and options diluted calculated using the Treasury Stock Me thod, based on 1.298mm PSUs, 614k RSUs, 217k options at $22.31 strike price, 133k options at $31.99 strike price, and 234k options at $20.92 strike price as of 13 - Dec - 2020, per Catalyst management. Implied Share Price 1 Implied Perpetuity Growth Rate 12 Month Period Ending December 31st Terminal CAGR 2021E 2022E 2023E 2024E 2025E Value '21E - '25E Unlevered Free Cash Flows Revenue $1,222 $1,271 $1,323 $1,364 $1,407 $1,407 3.6% Adj. EBITDA $281 $296 $311 $320 $339 $339 4.8% (-) D&A (158) (148) (141) (132) (126) (126) (-) Stock Based Compensation Expense (22) (22) (22) (22) (22) (22) EBIT $102 $127 $148 $167 $191 $191 17.1% (-) Cash Taxes (26) (33) (38) (43) (50) (50) NOPAT $75 $94 $109 $124 $141 $141 17.1% (+) D&A 158 148 141 132 126 126 (-) Capital Expenditures (98) (102) (106) (109) (113) (113) (-) ∆ Working Capital (8) 7 5 3 3 3 Unlevered Free Cash Flows $127 $147 $150 $149 $158 $158 5.5% Growth (%) 15.1% 2.2% (0.6)% 6.1% Terminal LTM Exit Multiple 6.0x 6.5x 7.0x 7.5x 7.5% $ 28.78 $ 31.26 $ 33.73 $ 36.20 7.8% 28.35 30.79 33.23 35.67 8.0% 27.91 30.33 32.74 35.15 8.3% 27.48 29.87 32.26 34.63 8.5% 27.06 29.42 31.78 34.13 WACC Terminal LTM Exit Multiple Terminal Exit Multiple 6.0x 6.5x 7.0x 7.5x 7.5% (0.2)% 0.3 % 0.8 % 1.2 % 7.8% (0.0) 0.5 1.0 1.4 8.0% 0.2 0.8 1.3 1.7 8.3% 0.5 1.0 1.5 1.9 8.5% 0.7 1.2 1.7 2.2 WACC
7 Present Value of Future Share Price Source: Management Synthesis Case. Future share price discounted to 11 - Dec - 2020. Note: Present Value includes the projected future share price based on the assumed range of NTM Adj. P/E multiples discounted ba ck to 11 - Dec - 2020 at 9.5% cost of equity, based on an Axioma historical Beta of 1.44. Note: Assumes no dividend payout, in line with Catalyst historical patterns. 1 Share price on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing. Dec - 2021 Dec - 2022 Dec - 2023 EPS $1.90 $2.29 $2.79 Cost of Equity 9.5% Apollo final bid: $35.00 Unaffected price 1 : $25.87 Future Value of Share Price Present Value of Future Share Price $ 22.67 $ 24.93 $ 27.83 $ 26.45 $ 29.09 $ 32.47 $ 30.23 $ 33.24 $ 37.11 $15 $20 $25 $30 $35 $40 $45 $50 2020 2021 2022 $ 22.79 $ 27.44 $ 33.54 $ 26.59 $ 32.01 $ 39.12 $ 30.38 $ 36.58 $ 44.71 $15 $20 $25 $30 $35 $40 $45 $50 2020 2021 2022 12.0x NTM Adj. P/E 14.0x NTM Adj. P/E 16.0x NTM Adj. P/E
8 5.5 x 12.5 x 12.7 x 7.7 x 3.5 x 11.0 x Precedent Transaction Analysis Multiples of LTM EBITDA | ($ in millions) Target: G4S Verifone Paysafe DirectCash Payments Outerwall Wincor Nixdorf Acquirer: Brink's Francisco Partners Blackstone, CVC Catalyst Apollo Diebold Announced: Feb - 20 Apr - 18 Jul - 17 Oct - 16 Jul - 16 Nov - 15 Deal Value (USD): $ 860 $ 3,381 $ 4,152 $ 464 $ 1,533 $ 1,832 Source: Company filings, investor presentations, press releases. Note: Consistent with Catalyst Adj. EBITDA, multiples of LTM EB ITDA represent EBITDA with SBC added back, where possible. Catalyst / DirectCash Payments is pro forma for DirectCash Payments' simultaneous acquisition of First Data's Australian ATM assets, estimated to contribute US $10mm in annual EBITDA
9 Historical M&A Premia Source: Dealogic , CapitalIQ . Data as of 11 - Dec - 2020. Note: Premium is relative to target share price 1 trading day, 30 trading day, 90 trading day, and 52 - week high prior to announc ement for all - cash control deals with U.S. targets $1 - $10 billion in value. 1 Premium is relative to Catalyst share price 1 trading day, 30 trading day, 90 trading day, and 52 - week high prior to the most r ecent 13D filing on 09 - Dec - 2020. Deal Count: 41 56 41 47 38 19 U.S. Based Targets | $1 - $10bn EV | Cash - Only Deals | All Industries 17.4 % 21.2 % 14.4 % 17.2 % 20.1 % 26.8 % 34.9 % 39.2 % 29.7 % 25.1 % 37.2 % 47.9 % 35.2 % 49.0 % 32.5 % 35.5 % 42.8 % 64.1 % 10.2 % 3.5 % 8.0 % 5.6 % 6.9 % 12.2 % 2015 2016 2017 2018 2019 YTD2020 1 Day 30 Day 90 Day 52 Week High 1 Day 30 Day 90 Day 52 Week High 25th Percentile 9.9% 20.5% 23.8% (2.5)% 75th Percentile 37.9% 50.1% 61.0% 16.6% Apollo Final Bid ($35.00)¹ 35.3% 84.3% 59.2% (25.4)%
10 Comparison of Selected Companies Source: Company filings, IBES, CapitalIQ , pricing date as of 11 - Dec - 2020. 1 Denotes implied fully diluted market capitalization based on 44.490mm basic shares outstanding, and options diluted calculated using the Treasury Stock Method, based on 1.298mm PSUs, 614k RSUs, 217k options a t $ 22.31 strike price, 133k options at $31.99 strike price, and 234k options at $20.92 strike price as of 11 - Dec - 2020, per Catalyst management. 2 Based on share price of $25.87 on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing on 09 - Dec - 2020. 3 Enterprise value calculated based on Q3 2020A net debt balance of $651mm and minority interest of $(0.1)mm. 3 , Closing % of 52 Equity Price Week Market Enterprise EV/EBITDA Company 11-Dec-2020 High Cap Value 2020 2021 2020 2021 Catalyst Unaffected (08-Dec-2020)¹ ² $25.87 55.1% $1,202 $1,853 7.2x 6.6x 16.0x 14.1x ATM / Cash NCR $33.51 93.7% 4,494 7,423 8.3x 7.2x 19.8x 13.4x The Brink's Co 69.18 71.8 3,570 5,587 10.6 8.6 23.1 15.8 Loomis 27.43 56.0 2,064 2,800 6.4 5.7 15.3 11.0 Diebold Nixdorf 10.86 86.4 879 3,080 7.0 6.2 16.7 6.4 Median - ATM / Cash 79.1% 7.6x 6.7x 18.3x 12.2x Reference FIS $147.82 93.9% $92,514 $110,891 21.0x 17.9x 27.0x 22.2x Fiserv 114.82 92.7 78,709 99,929 18.3 15.8 26.0 21.2 Jack Henry & Associates 155.82 78.3 11,939 11,744 21.4 20.4 31.4 30.8 Western Union 22.13 78.2 9,265 11,064 9.0 8.4 12.0 11.1 Euronet Worldwide 132.89 79.5 7,173 6,889 24.1 12.8 54.5 23.6 Green Dot 56.18 87.0 3,109 2,957 14.9 13.0 28.3 24.8 Evertec 40.30 100.0 2,956 3,304 13.9 13.4 19.9 17.4 Median - Reference 87.0% 18.3x 13.4x 27.0x 22.2x Cash P/E Multiples
11 Research Views on Catalyst (For Reference) Analyst Price Targets 1 Source: Wall Street Research . Market data as of 08 - Dec - 2020. 1 Excludes analysts without price targets , including Barrington ( sell ), Northcoast ( hold ), Gabelli & Co ( hold ) and William Blair (NA). 2 Based on share price of $25.87 on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing on 09 - Dec - 2020. 3 On 10 - Dec - 2020, Wells Fargo upgraded price target from $35 to $40. On 09 - Dec - 2020, DA Davidson upgraded price target from $34 to $39 and Truist price target of $35 remained unchanged . Other listed analyst price targets remain unchanged as of end of Oct - 2020. 4 Wells Fargo states that bids could fall between $40 - $45. 5 DA Davidson states that bids could fall between $37 - $42. 6 Truist states ~$40 is a " more reasonable " price . Prem. to 08 - Dec - 2020 Share Price (Unaffected) 2 55 % 51 % 35 % 4 % (19) % Price Target Date 3 12/10 12/9 12/9 10/30 10/30 Buy Hold 5 4 6 Post - 13D Increase $35.00 $34.00 $35.00 $27.00 $21.00 $40.00 $39.00
12 Weighted Average Cost of Capital Source: 3Q2020 company filings. Market data as of 11 - Dec - 2020. Assumes tax rate of 26% per Management Synthesis Case (2022E and thereafter). Note: ATM / Cash includes NCR, Brink's, Diebold Nixdorf, and Loomis. Financial Technology includes Euronet , FIS, Fiserv, Western Union, Jack Henry, GreenDot , and Evertec . 1 Target estimate based on average historical capital structure at May 2019, YE 2019, and projected capital structure 2020E - 2023E ; 2 Current Yield on the U.S. 20 - Year Treasury; 3 Axioma historical beta; 4 Duff & Phelps' US Risk Premium since 1957; 5 Pre - tax cost of debt and blended company tax rate as provided by management, accounting for debt and statutory rates abroad. Evolution of Historical Beta WACC Sensitivities Catalyst ATM / Cash Financial Technology Debt / Total Capitalization 7.52% 30% 35% 40% 45% 5.0% 7.8 % 7.5 % 7.2 % 6.9 % 5.2% 7.8 7.5 7.2 7.0 5.4% 7.8 7.6 7.3 7.0 5.6% 7.9 7.6 7.4 7.1 Pre-Tax Cost of Debt Historical Beta 7.52% 1.30 1.40 1.50 1.60 5.0% 7.0 % 7.3 % 7.7 % 8.0 % 5.2% 7.0 7.4 7.7 8.1 5.4% 7.1 7.4 7.8 8.2 5.6% 7.1 7.5 7.8 8.2 Pre-Tax Cost of Debt Target Capital Structure¹ Debt / Total Capitalization 35.0% Equity / Total Capitalization 65.0% Cost of Equity Risk-Free Rate² 1.4% Levered Beta³ 1.44 Equity Risk Premium ⁴ 5.6% Cost of Equity 9.5% Cost of Debt Pre-Tax Cost of Debt 5.2% Tax Shield Percentage ⁵ 26.0% After-Tax Cost of Debt 3.8% Weighted-Average Cost of Capital 7.5% 0.50 0.75 1.00 1.25 1.50 1.75 2.00 Dec-15 Dec-16 Dec-17 Dec-18 Dec-19 Dec-20 1.44 1.65 1.01
13 Catalyst Valuation Evolution Unaffected Date (08 - Dec - 2020) 1 NTM EV/EBITDA Multiple NTM Adj. P / E Multiple LTM EV / EBITDA Multiple Source: Capital IQ and IBES estimates as of 08 - Dec - 2020. 1 Based on share price of $25.87 on unaffected date of 08 - Dec - 2020, denoting date prior to most recent 13D filing on 09 - Dec - 2020. Current Multiple (11 - Dec - 2020): 9.4x Current Multiple (11 - Dec - 2020): 19.7x EV/ LTM EBITDA 5Y Avg. 3Y Avg. 1Y Avg. 6M Avg. 3M Avg. 5Y
Δ 10th 25th 50th 75th 90th Catalyst 7.5x 7.2x 7.0x 6.5x 6.5x (0.7)x 5.9x 6.5x 7.6x 8.4x 9.2x Percentile NTM P/E 5Y Avg. 3Y Avg. 1Y Avg. 6M Avg. 3M Avg. 5Y Δ 10th 25th 50th 75th 90th Catalyst 13.6x 14.2x 13.3x 13.5x 12.3x 3.2x 9.5x 11.5x 13.8x 15.8x 17.3x Percentile 0.0x 5.0x 10.0x 15.0x Dec-2015 Oct-2016 Aug-2017 Jun-2018 Apr-2019 Feb-2020 Dec-2020 LTM EBITDA Multiple 7.5 x 0.0x 10.0x 20.0x 30.0x Dec-2015 Oct-2016 Aug-2017 Jun-2018 Apr-2019 Feb-2020 Dec-2020 NTM P/E Multiple 14.1 x