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| Share Name | Share Symbol | Market | Type |
|---|---|---|---|
| Endeavor Group Holdings Inc | NYSE:EDR | NYSE | Common Stock |
| Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
|---|---|---|---|---|---|---|---|---|
| 0.12 | 0.39% | 31.21 | 31.30 | 30.7159 | 30.90 | 1,767,387 | 22:30:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
(Amendment No. 3)
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF
THE SECURITIES EXCHANGE ACT OF 1934
ENDEAVOR GROUP HOLDINGS, INC.
(Name of the Issuer)
Endeavor Group Holdings, Inc.
Endeavor Operating Company, LLC
Endeavor Manager, LLC
Endeavor Executive Holdco, LLC
Endeavor Executive II Holdco, LLC
Endeavor Executive PIU Holdco, LLC
Silver Lake West Holdco, L.P.
Silver Lake West Holdco II, L.P.
Silver Lake West Voteco, L.L.C.
Wildcat EGH Holdco, L.P.
Wildcat OpCo Holdco, L.P.
Wildcat PubCo Merger Sub, Inc.
Wildcat OpCo Merger Sub, L.L.C.
Wildcat Manager Merger Sub, L.L.C.
SLP Wildcat Aggregator GP, L.L.C.
Silver Lake Partners VI, L.P.
Silver Lake Partners VII, L.P.
SL SPV-4, L.P.
Silver Lake Technology Associates VI, L.P.
Silver Lake Technology Associates VII, L.P.
SLTA SPV-4, L.P.
SLTA VI (GP), L.L.C.
SLTA VII (GP), L.L.C.
SLTA SPV-4 (GP), L.L.C.
Silver Lake Group, L.L.C.
Ariel Emanuel
Patrick Whitesell
(Names of Persons Filing Statement)
Common Stock, par value $0.00001 per share
(Title of Class of Securities)
29260Y109
(CUSIP Number of Class of Securities)
| Ariel Emanuel Patrick Whitesell Endeavor Executive Holdco, LLC Endeavor Executive II Holdco, LLC Endeavor Executive PIU Holdco, LLC c/o Endeavor Group Holdings, Inc. 9601 Wilshire Boulevard, 3rd Floor Beverly Hills, CA 90210 (310) 285-9000 |
Endeavor Group Holdings, Inc. Endeavor Operating Company, LLC Endeavor Manager, LLC 9601 Wilshire Boulevard, 3rd Floor Beverly Hills, CA 90210 (310) 285-9000 |
Silver Lake West Holdco, L.P. Silver Lake West Holdco II, L.P. Silver Lake West Voteco, L.L.C. Wildcat EGH Holdco, L.P. Wildcat OpCo Holdco, L.P. Wildcat PubCo Merger Sub, Inc. Wildcat OpCo Merger Sub, L.L.C. Wildcat Manager Merger Sub, L.L.C. SLP Wildcat Aggregator GP, L.L.C. Silver Lake Partners VI, L.P. Silver Lake Partners VII, L.P. SL SPV-4, L.P. Silver Lake Technology Associates VI, L.P. Silver Lake Technology Associates VII, L.P. SLTA SPV-4, L.P. SLTA VI (GP), L.L.C. SLTA VII (GP), L.L.C. SLTA SPV-4 (GP), L.L.C. Silver Lake Group, L.L.C. 2775 Sand Hill Road, Suite 100 Menlo Park, CA 94025 (650) 233-8120 |
(Name, Address and Telephone Numbers of Person Authorized to Receive Notices
and Communications on Behalf of the Persons Filing Statement)
With copies to
| Justin G. Hamill Michael V. Anastasio Ian Nussbaum Benjamin J. Cohen Latham & Watkins LLP 1271 Avenue of the Americas New York, NY 10020 |
Faiza J. Saeed Claudia J. Ricciardi Cravath, Swaine & Moore LLP 375 Ninth Ave New York, NY 10001 |
Elizabeth Cooper Christopher May Mark Myott Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 |
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THIS TRANSACTION, PASSED ON THE MERITS OR THE FAIRNESS OF THE TRANSACTION OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This statement is filed in connection with (check the appropriate box):
| a. |
☒ | The filing of solicitation materials or an information statement subject to Regulation 14A (§§ 240.14a-1 through 240.14b- 2), Regulation 14C (§§ 240.14c-1 through 240.14c-101) or Rule 13e-3(c) (§ 240.13e-3(c)) under the Securities Exchange Act of 1934 (the “Exchange Act”). | ||
| b. |
☐ | The filing of a registration statement under the Securities Act of 1933. | ||
| c. |
☐ | A tender offer. | ||
| d. |
☐ | None of the above. | ||
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: ☐
INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3, together with the exhibits hereto (this “Transaction Statement”), is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Exchange Act, by (a) Endeavor Group Holdings, Inc., a Delaware corporation (the “Company” or “Endeavor”), (b) Endeavor Manager, LLC, a Delaware limited liability company and subsidiary of the Company (“Manager”), (c) Endeavor Operating Company, LLC, a Delaware limited liability company and a subsidiary of Manager and indirect subsidiary of the Company (“OpCo” and, together with the Company and Manager, the “Company Entities” and each, a “Company Entity”), (d) Endeavor Executive Holdco, LLC, a Delaware limited liability company (“Executive Holdco”), (e) Endeavor Executive II Holdco, LLC, a Delaware limited liability company (“Executive II Holdco”), (f) Endeavor Executive PIU Holdco, LLC, a Delaware limited liability company (“Executive PIU” and, together with Executive Holdco and Executive II Holdco, the “Executive Holdcos”), (g) Silver Lake West HoldCo, L.P., a Delaware limited partnership (“West HoldCo”), (h) Silver Lake West HoldCo II, L.P., a Delaware limited partnership (“West HoldCo II”), (i) Silver Lake West Voteco, L.L.C., a Delaware limited liability company, (j) Wildcat EGH Holdco, L.P., a Delaware limited partnership (“Holdco Parent”), (k) Wildcat OpCo Holdco, L.P., a Delaware limited partnership (“OpCo Parent” and, together with Holdco Parent, the “Parent Entities” and each, a “Parent Entity”), (l) Wildcat PubCo Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Holdco Parent (“Company Merger Sub”), (m) Wildcat Manager Merger Sub, L.L.C., a Delaware limited liability company and a wholly owned subsidiary of Company Merger Sub (“Manager Merger Sub”), (n) Wildcat OpCo Merger Sub, L.L.C., a Delaware limited liability company and wholly owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Manager Merger Sub and Company Merger Sub, the “Merger Subs” and each, a “Merger Sub”), (o) SLP Wildcat Aggregator GP, L.L.C., a Delaware limited liability company, (p) Silver Lake Partners VI, L.P., a Delaware limited partnership, (q) Silver Lake Partners VII, L.P., a Delaware limited partnership, (r) SL SPV-4, L.P., a Delaware limited partnership, (s) Silver Lake Technology Associates VI, L.P., a Delaware limited partnership, (t) Silver Lake Technology Associates VII, L.P., a Delaware limited partnership, (u) SLTA SPV-4, L.P., a Delaware limited partnership, (v) SLTA VI (GP), L.L.C., a Delaware limited liability company, (w) SLTA VII (GP), L.L.C., a Delaware limited liability company, (x) SLTA SPV-4 (GP), L.L.C., a Delaware limited liability company, (y) Silver Lake Group, L.L.C., a Delaware limited liability company, (z) Ariel Emanuel, a natural person and (aa) Patrick Whitesell, a natural person. Collectively, the persons filing this Transaction Statement are referred to as the “filing persons”.
This Transaction Statement relates to the Agreement and Plan of Merger, dated April 2, 2024 (the “Merger Agreement”), by and among the Company, Manager, OpCo, Executive Holdco, Executive II Holdco, Executive PIU, Holdco Parent, OpCo Parent, Company Merger Sub, Manager Merger Sub and OpCo Merger Sub. Subject to the terms of the Merger Agreement, (a) OpCo Merger Sub will merge with and into OpCo, with OpCo surviving the merger, collectively owned, directly or indirectly, by OpCo Parent, Manager and certain Rollover Holders (as defined below) (the “OpCo Merger”), (b) immediately following the OpCo Merger, Manager Merger Sub will merge with and into Manager, with Manager surviving the merger, wholly owned by the Company (the “Manager Merger”) and (c) immediately following the Manager Merger, Company Merger Sub will merge with and into the Company, with the Company surviving the merger, collectively owned, directly or indirectly, by Holdco Parent and certain Rollover Holders (the “Company Merger” and, together with the Manager Merger and the OpCo Merger, the “Mergers” and, together with the other transactions contemplated by the Merger Agreement, collectively, the “Transactions”). In connection with the Merger Agreement, Silver Lake Partners VI, L.P. and Silver Lake Partners VII, L.P. have entered into a limited guarantee (the “Limited Guarantee”) with OpCo with respect to the payment of a termination fee that may be payable by the Parent Entities to OpCo under the Merger Agreement, as well as certain reimbursement obligations that may be owed by the Parent Entities pursuant to the Merger Agreement, in each case, subject to the terms of the Merger Agreement and the Limited Guarantee.
Concurrently with the execution and delivery of the Merger Agreement on April 2, 2024, and as a condition and inducement to the Parent Entities’ willingness to enter into the Merger Agreement, the following directors
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and/or officers of the Company (and certain of their respective affiliates) — Ariel Emanuel, Patrick Whitesell and Mark Shapiro (each, a “Rollover Holder”) — entered into a rollover agreement (each, a “Rollover Agreement”) with the Parent Entities, in connection with the Transactions. Pursuant to the Rollover Agreements, each Rollover Holder agreed, among other things and on the terms and subject to the conditions set forth in the Rollover Agreements, to designate as “Rollover Units” or “Rollover Shares” (as applicable) the following equity interests in OpCo and/or in the Company held by such Rollover Holder and their permitted transferees, with such Rollover Units and Rollover Shares to be treated in accordance with the terms of the Merger Agreement:
| • | in the case of Mr. Emanuel, a number of equity interests in OpCo and/or in the Company held by him and his permitted transferees that are shares of Company Common Stock, OpCo Membership Interests or OpCo Profits Units (each as defined below) that collectively, using the Merger Consideration (as defined below) applicable to such interests, have a value equal to (i) the aggregate value of all such interests (calculated using the Merger Consideration applicable to such interests) minus (ii) $200,000,000, rounded to the nearest Company Common Stock, OpCo Membership Interest or OpCo Profits Unit, as applicable; |
| • | in the case of Mr. Whitesell, a number of equity interests in OpCo and/or in the Company held by him and his permitted transferees that are shares of Company Common Stock, OpCo Membership Interests or OpCo Profits Units that collectively, using the Merger Consideration applicable to such interests, have a value equal to (i) the aggregate value of all such interests (calculated using the Merger Consideration applicable to such interests) minus (ii) $150,000,000, rounded to the nearest Company Common Stock, OpCo Membership Interest or OpCo Profits Unit, as applicable; and |
| • | in the case of Mr. Shapiro, a number of equity interests in OpCo and/or in the Company held by him and his permitted transferees that are outstanding and vested shares of Company Common Stock without any restrictions on such Company Common Stock or Units of OpCo (as defined in the OpCo Operating Agreement) with a value equal to $37,187,970 (based on the applicable Merger Consideration). |
In addition, pursuant to the Rollover Agreements, each Rollover Holder agreed, among other things, unless consented to in writing by the Parent Entities, not to sell, dispose of, assign, pledge, collateralize, encumber or otherwise transfer any of the Rollover Shares or Rollover Units (or, prior to the final designation of equity interests of the Company and/or OpCo held by such Rollover Holder as such, any such equity interests in the Company or OpCo, subject to certain exceptions); however, the Rollover Holders are permitted to transfer the Rollover Shares and/or Rollover Units prior to the closing of the Transactions (the “Closing”) to certain permitted transferees subject to execution of a joinder to the applicable Rollover Agreement by such permitted transferee.
At the effective time of the OpCo Merger (the “OpCo Merger Effective Time”), as a result of the OpCo Merger, (a) each common unit of OpCo outstanding immediately prior to the OpCo Merger Effective Time (each, an “OpCo Membership Interest” and, collectively, the “OpCo Membership Interests”) (subject to certain exceptions, including (i) each OpCo Membership Interest owned by the Company, Manager, OpCo, or any direct or indirect wholly owned subsidiary of OpCo, the Parent Entities or any direct or indirect wholly owned subsidiary of the Parent Entities or, solely to the extent designated in writing by the Parent Entities to the Company at least two business days prior to the Effective Time (as defined below), any affiliate of the Parent Entities so designated, immediately prior to the OpCo Merger Effective Time (collectively, the “Excluded OpCo Membership Interests”) and (ii) the Rollover Units in OpCo held by the Rollover Holders that remain outstanding in the OpCo Merger pursuant to the respective Rollover Holders’ Rollover Agreement) will automatically be cancelled and converted into the right to receive $27.50 in cash minus any amounts that are distributed in respect of an OpCo Membership Interest in respect of the distributions contemplated by the restructuring transactions to be undertaken by the Company Entities prior to Closing pursuant to the Merger Agreement and in accordance with the restructuring steps plan set forth on the Company’s confidential disclosure letter delivered concurrently with the execution of the Merger Agreement (the “Restructuring Steps”, and such amounts, the “OpCo
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Membership Interest Distribution Amount”), without interest (the “OpCo Merger Consideration”) and subject to applicable withholding taxes, certain deferred payments under certain terms of the existing OpCo Membership Interests and certain rights of the holders of OpCo Membership Interests to elect to cause their OpCo Membership Interests to remain outstanding through the OpCo Merger and cause the Company to acquire such OpCo Membership Interests following the OpCo Merger for an amount in cash equal to the OpCo Merger Consideration that would have otherwise been paid in respect of such OpCo Membership Interests and (b) each profits unit of OpCo outstanding immediately prior to the OpCo Merger Effective Time (“OpCo Profits Unit”) (other than any Rollover Units) will automatically be cancelled and converted into the right to receive the OpCo Merger Consideration less the “strike price” of such OpCo Profits Unit in cash, without interest (the “OpCo Profits Units Merger Consideration”), and subject to applicable withholding taxes, certain deferred payments under certain terms of the existing OpCo Profits Units and certain rights of the holders of OpCo Profits Units to elect to cause their OpCo Profits Units to remain outstanding through the OpCo Merger and cause the Company to acquire such OpCo Profits Units following the OpCo Merger for an amount in cash equal to the OpCo Profits Units Merger Consideration that would have otherwise been paid in respect of such OpCo Profits Units.
At the effective time of the Manager Merger (which will occur immediately after the OpCo Merger Effective Time) (the “Manager Merger Effective Time”), as a result of the Manager Merger, each common unit of Manager outstanding immediately prior to the Manager Merger Effective Time (each, a “Manager Membership Interest”) (subject to certain exceptions, including each Manager Membership Interest owned by the Company or the Manager immediately prior to the Manager Merger Effective Time) will automatically be cancelled and converted into the right to receive $27.50 in cash without interest (the “Manager Merger Consideration”), and subject to applicable withholding taxes and certain deferrals to take into account certain terms of the existing Manager Membership Interests.
At the effective time of the Company Merger (which will occur immediately after the Manager Merger Effective Time) (the “Company Merger Effective Time” or the “Effective Time”), as a result of the Company Merger, each share of Company Common Stock outstanding immediately prior to the Company Merger Effective Time (subject to certain exceptions, including (i) (a) shares of Company Common Stock owned by the Company, Manager or OpCo or any of OpCo’s direct or indirect wholly owned subsidiaries, (b) shares of Company Common Stock owned by the Merger Subs or the Parent Entities or any of Parent Entities’ direct or indirect wholly owned subsidiaries, or, any affiliate of the Parent Entities designated in writing by the Parent Entities to the Company at least two business days prior to the Company Merger Effective Time and (c) shares of Class X Common Stock and Class Y Common Stock (each as defined herein) issued and outstanding immediately prior to the Company Merger Effective Time (collectively, the “Excluded Shares”), (ii) each Rollover Share that is owned by a Rollover Holder and will remain outstanding in the Company Merger in accordance with such Rollover Holder’s Rollover Agreement and (iii) shares of Company Common Stock owned by stockholders of the Company who have validly demanded and not withdrawn appraisal rights in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”)) will automatically be cancelled and converted into the right to receive $27.50 in cash, without interest (the “Company Merger Consideration” and, together with the OpCo Merger Consideration, the OpCo Profits Units Merger Consideration and the Manager Merger Consideration, with respect to such applicable equity securities, the “Merger Consideration”), and subject to applicable withholding taxes.
The Company is required to, in each calendar quarter prior to the Effective Time, declare and pay a dividend in respect of each issued and outstanding share of Class A Common Stock at a price equal to $0.06 per share (the “Per Share Dividend Amount” and each dividend, a “Quarterly Dividend”). If, on the date that all other conditions to Closing are satisfied, at least four Quarterly Dividends have not been paid, the Company will be required to pay, within three business days (and in any case prior to the Effective Time), a dividend in respect of each issued and outstanding share of Class A Common Stock of the Company in an amount equal to the product of (i) the Per Share Dividend Amount and (ii) four minus the number of quarters in which a Quarterly Dividend has been declared and paid (or will be paid prior to the Effective Time).
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Following completion of the Mergers, the shares of Company Common Stock will cease to be listed on the New York Stock Exchange and registration of the Company Common Stock under the Exchange Act will be terminated.
The Merger Agreement and the Transactions were unanimously approved by the Executive Committee of the Company (the “Executive Committee”) upon the unanimous recommendation of a special committee of the board of directors of the Company (the “Special Committee” and, such recommendation, the “Special Committee Recommendation”)—a committee comprised solely of independent and disinterested directors that was established by the Executive Committee to review, evaluate and negotiate the Merger Agreement, make a determination as to whether the Transactions are fair to, and in the best interests of, the Company, its stockholders, and the equityholders of Manager and OpCo and make a recommendation to the Executive Committee with respect to the Transactions.
Concurrently with the filing of this Transaction Statement, the Company is filing a notice of written consent and appraisal rights and information statement (the “Information Statement”) under Section 14(c) of the Exchange Act. A copy of the Information Statement is attached hereto as Exhibit (a)(1) and a copy of the Merger Agreement is attached as Annex A to the Information Statement. The adoption of the Merger Agreement and the approval of the Mergers and the other Transactions required the affirmative vote or written consent of the holders of Company Common Stock representing a majority of the aggregate voting power of the outstanding shares of Company Common Stock entitled to vote thereon pursuant to Section 228 and Section 251 of the DGCL. Following execution of the Merger Agreement, (a) Silver Lake West HoldCo, L.P. and Silver Lake West HoldCo II, L.P. (together, the “SLP Holders”) and (b) Ariel Emanuel and Patrick Whitesell and each of their respective personal revocable trusts that holds shares of Company Common Stock and/or OpCo Membership Interests, and the Executive Holdcos (together, the “Management Holders” and, together with the SLP Holders, the “Specified Stockholders”), who collectively held more than a majority of the combined voting power of the outstanding shares of Class A Common Stock, par value $0.00001 per share (the “Class A Common Stock”), Class X common stock of the Company, par value $0.00001 per share (the “Class X Common Stock”) and Class Y common stock of the Company, par value $0.00001 per share (the “Class Y Common Stock” and together with Class A Common Stock and the Class X Common Stock, the “Company Common Stock”), executed and delivered to the Company a written consent (the “Written Consent”) approving and adopting the Merger Agreement and the Transactions, including the Mergers.
Pursuant to General Instruction F to Schedule 13E-3, the information contained in the Information Statement, including all annexes thereto, is expressly incorporated herein by reference in its entirety, and responses to each item herein are qualified in their entirety by the information contained in the Information Statement and the annexes thereto. The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Information Statement of the information required to be included in response to the items of Schedule 13E-3. As of the date hereof, the Information Statement is in preliminary form and is subject to completion.
All information contained in this Transaction Statement concerning any of the filing persons has been provided by such filing person and no filing person has produced any disclosure with respect to any other filing persons.
ITEM 1. SUMMARY TERM SHEET
The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
4
ITEM 2. SUBJECT COMPANY INFORMATION
(a) Name and Address. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“The Parties to the Merger Agreement”
(b) Securities. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
(c) Trading Market and Price. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
(d) Dividends. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“The Merger Agreement — Conduct of Business by the Company Entities Prior to Consummation of the Mergers”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
(e) Prior Public Offerings. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
(f) Prior Stock Purchases. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSONS
(a)–(c) Name and Address; Business and Background of Entities; Business and Background of Natural Persons. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“The Parties to the Merger Agreement”
“Directors, Executive Officers and Controlling Persons of the Company”
“Where You Can Find More Information”
ITEM 4. TERMS OF THE TRANSACTION
(a)(1) Material Terms – Tender Offers. Not applicable.
(a)(2) Material Terms – Merger or Similar Transactions. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
5
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Required Stockholder Approval for the Mergers”
“The Special Factors — Opinion of Centerview”
“The Special Factors — Opinion of Kroll”
“The Special Factors — Opinion of Houlihan Lokey”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Special Factors — Certain Material United States Federal Income Tax Consequences of the Company Merger”
“The Special Factors — Regulatory Approvals”
“The Merger Agreement”
“Annex A: Agreement and Plan of Merger”
“Annex C: Opinion of Centerview Partners LLC”
“Annex D: Opinion of Kroll, LLC”
“Annex E: Opinion of Houlihan Lokey Capital, Inc.”
“Annex F: Voting and Support Agreement”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
(c) Different Terms. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Merger”
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“The Merger Agreement — Consideration to be Received in the Mergers”
“The Merger Agreement — Treatment of Company Equity Awards and Phantom Units”
“Other Agreements”
“Annex F: Voting and Support Agreement”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
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“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
(d) Appraisal Rights. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Merger Agreement — Dissenting Shares”
“Appraisal Rights”
“Annex C: Section 262 of the Delaware General Corporation Law”
(e) Provisions for Unaffiliated Security Holders. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“Provisions for Unaffiliated Stockholders”
“Appraisal Rights”
(f) Eligibility for Listing or Trading. Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
(a) Transactions. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
“Where You Can Find More Information”
(b)–(c) Significant Corporate Events; Negotiations or Contacts. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Merger”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Required Stockholder Approval for the Mergers”
“The Special Factors — Financing”
“The Special Factors — Limited Guarantee”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
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“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Special Factors — Fees and Expenses”
“The Merger Agreement — Form of Mergers”
“The Merger Agreement — Consummation and Effectiveness of the Mergers”
“The Merger Agreement — Consideration to be Received in the Mergers”
“The Merger Agreement — Treatment of Company Equity Awards and Phantom Units”
“The Merger Agreement — Dividends”
“The Merger Agreement — Company Sales”
“The Merger Agreement — Written Consent”
“The Merger Agreement — Pre-Closing Restructuring”
“Other Agreements”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
“Where You Can Find More Information”
“Annex A: Agreement and Plan of Merger”
“Annex F: Voting and Support Agreement”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and SL SPV-4, L.P., attached hereto as Exhibit (b)(1).
Amended and Restated Equity Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(2).
Second Amended and Restated Equity Commitment Letter, dated November 11, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(3).
Third Amended and Restated Equity Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(4).
Preferred Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., DFO Private Investments, L.P. and Thirty Fifth Investment Company L.L.C., attached hereto as Exhibit (b)(9).
Preferred Equity Commitment Letter, dated June 6, 2024, by and among Wildcat EGH Holdco, L.P. and Coatue Tactical Solutions PS Holdings AIV 9 LP, attached hereto as Exhibit (b)(10).
8
Preferred Equity Commitment Letter, dated July 29, 2024, by and among Wildcat EGH Holdco, L.P. and Meritage Fund Select I LLC, attached hereto as Exhibit (b)(11).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., PEV Onshore Holdings 2036 LLC, PEV Offshore Holdings 2014 LP, PEV SB Employee Onshore Aggregator II LLC and PEV SB Employee Offshore Aggregator II LP, attached hereto as Exhibit (b)(12).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., Goldman Sachs Asset Management, L.P., on behalf of certain advised funds and managed accounts, and Broad Street Principal Investments, L.L.C., attached hereto as Exhibit (b)(13).
Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch and Royal Bank of Canada, attached hereto as Exhibit (b)(5).
Amended and Restated Commitment Letter, dated April 19, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., BofA Securities, Inc., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, Inc., Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(6).
Second Amended and Restated Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(7).
Third Amended and Restated Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(8).
Limited Guarantee, dated April 2, 2024, by and among Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and Endeavor Operating Company, LLC, attached hereto as Exhibit (b)(14).
(e) Agreements Involving the Subject Company’s Securities. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Required Stockholder Approval for the Mergers”
“The Special Factors — Financing”
“The Special Factors — Limited Guarantee”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
9
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Special Factors — Fees and Expenses”
“The Merger Agreement — Form of Merger”
“The Merger Agreement — Consummation and Effectiveness of the Mergers”
“The Merger Agreement — Consideration to be Received in the Mergers”
“The Merger Agreement — Treatment of Company Equity Awards and Phantom Units”
“The Merger Agreement — Dividends”
“The Merger Agreement — Company Sales”
“The Merger Agreement — Written Consent”
“The Merger Agreement — Financing Covenant; Company Cooperation”
“The Merger Agreement — Pre-Closing Restructuring”
“Other Agreements”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
“Annex A: Agreement and Plan of Merger”
“Annex F: Voting and Support Agreement”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS
(b) Use of Securities Acquired. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Merger Agreement — Form of Mergers”
“The Merger Agreement — Consideration to be Received in the Mergers”
“The Merger Agreement — Treatment of Company Equity Awards and Phantom Units”
(c)(1)–(8) Plans. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
10
“The Special Factors — Interests of Our Directors and Executive Officers in the Merger”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Special Factors — Fees and Expenses”
“The Merger Agreement”
“Other Agreements”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
“Annex A: Agreement and Plan of Merger”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS
(a) Purposes. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
(b) Alternatives. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
(c) Reasons. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
11
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
(d) Effects. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Merger”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Financing”
“The Special Factors — Limited Guarantee”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“The Special Factors — Delisting and Deregistration of Company Common Stock”
“The Special Factors — Fees and Expenses”
“The Special Factors — Certain Material United States Federal Income Tax Consequences of the Mergers”
“The Merger Agreement — Form of Mergers”
“The Merger Agreement — Consummation and Effectiveness of the Mergers”
“The Merger Agreement — Consideration to be Received in the Mergers”
“The Merger Agreement — Dissenting Shares”
“The Merger Agreement — Treatment of Company Equity Awards and Phantom Units”
“The Merger Agreement — Certificate of Incorporation; Bylaws”
“The Merger Agreement — Continuing Employee Matters”
“The Merger Agreement — Company Sales”
“The Merger Agreement — Indemnification and Insurance”
“Other Agreements”
“Appraisal Rights”
“Annex A: Agreement and Plan of Merger”
“Annex C: Section 262 of the Delaware General Corporation Law”
“Annex F: Voting and Support Agreement”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
12
Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and SL SPV-4, L.P., attached hereto as Exhibit (b)(1).
Amended and Restated Equity Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(2).
Second Amended and Restated Equity Commitment Letter, dated November 11, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(3).
Third Amended and Restated Equity Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(4).
Preferred Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., DFO Private Investments, L.P. and Thirty Fifth Investment Company L.L.C., attached hereto as Exhibit (b)(9).
Preferred Equity Commitment Letter, dated June 6, 2024, by and among Wildcat EGH Holdco, L.P. and Coatue Tactical Solutions PS Holdings AIV 9 LP, attached hereto as Exhibit (b)(10).
Preferred Equity Commitment Letter, dated July 29, 2024, by and among Wildcat EGH Holdco, L.P. and Meritage Fund Select I LLC, attached hereto as Exhibit (b)(11).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., PEV Onshore Holdings 2036 LLC, PEV Offshore Holdings 2014 LP, PEV SB Employee Onshore Aggregator II LLC and PEV SB Employee Offshore Aggregator II LP, attached hereto as Exhibit (b)(12).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., Goldman Sachs Asset Management, L.P., on behalf of certain advised funds and managed accounts, and Broad Street Principal Investments, L.L.C., attached hereto as Exhibit (b)(13).
Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch and Royal Bank of Canada, attached hereto as Exhibit (b)(5).
Amended and Restated Commitment Letter, dated April 19, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., BofA Securities, Inc., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, Inc., Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(6).
Second Amended and Restated Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(7).
13
Third Amended and Restated Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(8).
Limited Guarantee, dated April 2, 2024, by and among Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and Endeavor Operating Company, LLC, attached hereto as Exhibit (b)(14).
ITEM 8. FAIRNESS OF THE TRANSACTION
(a)–(b) Fairness; Factors Considered in Determining Fairness. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Opinion of Centerview”
“The Special Factors — Certain Company Financial Forecasts”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Company, Manager and OpCo in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the Director Rollover Holders in Connection with the Mergers”
“The Special Factors — Purposes and Reasons of the SLP Entities in Connection with the Mergers”
“The Special Factors – Interests of Our Directors and Executive Officers in the Mergers”
“Annex C: Opinion of Centerview Partners LLC”
The confidential discussion materials prepared by Centerview Partners LLC and provided to the Special Committee, dated March 8, 2024, March 21, 2024, March 29, 2024, March 30, 2024, March 30, 2024, March 31, 2024 and April 2, 2024, are attached hereto as Exhibits (c)(2) through and including (c)(8), and are incorporated by reference herein.
(c) Approval of Security Holders. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Background of the Merger”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Required Stockholder Approval for the Mergers”
“The Merger Agreement — Written Consent”
(d) Unaffiliated Representative. Not applicable.
(e) Approval of Directors. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
14
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
(f) Other Offers. The information set forth in the Information Statement under the following captions is incorporated by reference:
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Merger Agreement — No Solicitation”
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS
(a)–(c) Report, Opinion or Appraisal; Preparer and Summary of the Report, Opinion or Appraisal; Availability of Documents.
The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Opinion of Centerview”
“The Special Factors — Opinion of Kroll”
“The Special Factors — Opinion of Houlihan Lokey”
“The Special Factors — Certain Company Financial Forecasts”
“The Special Factors — Position of the Company, Manager and OpCo on the Fairness of the Mergers”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“Annex C: Opinion of Centerview Partners LLC”
“Annex D: Opinion of Kroll, LLC”
“Annex E: Opinion of Houlihan Lokey Capital, Inc.”
The confidential discussion materials prepared by Centerview Partners LLC and provided to the Special Committee, dated March 8, 2024, March 21, 2024, March 29, 2024, March 30, 2024, March 30, 2024, March 31, 2024 and April 2, 2024, are attached hereto as Exhibits (c)(2) through and including (c)(8), and are incorporated by reference herein.
The reports, opinions or appraisals referenced in this Item 9 are filed herewith and will be made available for inspection and copying at the principal executive offices of Endeavor during its regular business hours by any interested holder of Company Common Stock or representative who has been designated in writing, and copies may be obtained by requesting them in writing from Endeavor at the email address provided under the caption “Where You Can Find More Information” in the Information Statement, which is incorporated herein by reference.
15
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION
(a)—(b) Source of Funds; Conditions. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Mergers”
“The Special Factors — Financing”
“The Special Factors — Limited Guarantee”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Merger Agreement — Consummation and Effectiveness of the Mergers”
“The Merger Agreement — Financing Covenant; Company Cooperation”
(c) Expenses. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“The Special Factors — Fees and Expenses”
(d) Borrowed Funds. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“Questions and Answers about the Merger”
“The Special Factors — Financing”
“The Special Factors — Limited Guarantee”
“The Special Factors — Position of the SLP Entities and the Director Rollover Holders in Connection with the Mergers”
“The Merger Agreement — Financing Covenant; Company Cooperation”
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a) Securities Ownership. The information set forth in the Information Statement under the following caption is incorporated herein by reference:
“Security Ownership of Certain Beneficial Owners and Management”
(b) Securities Transactions. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“The Special Factors — Background of the Mergers”
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
“The Merger Agreement”
“Other Agreements”
“Market Information, Dividends and Certain Transactions in the Shares of Company Common Stock”
“Annex A: Agreement and Plan of Merger”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
16
ITEM 12. THE SOLICITATION OR RECOMMENDATION
(d) Intent to Tender or Vote in a Going-Private Transaction. Not applicable.
(e) Recommendations of Others. Not applicable.
ITEM 13. FINANCIAL STATEMENTS
(a) Financial Statements. The audited financial statements set forth in Endeavor’s Current Report on Form 8-K filed on September 20, 2024 and the unaudited balance sheets, comparative year-to-date statements of comprehensive income and related earnings per share data and statements of cash flows set forth in Endeavor’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2024 are incorporated by reference herein. The information is set forth in the Information Statement under the following caption is incorporated herein by reference:
“Summary Financial Information”
“Where You Can Find More Information”
(b) Pro Forma Information. Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED
(a) Solicitations or Recommendations. Not applicable.
(b) Employees and Corporate Assets. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“Summary”
“The Special Factors — Background of the Mergers”
“The Special Factors — Recommendation of the Executive Committee; Reasons for the Mergers”
“The Special Factors — Recommendation of the Special Committee; Reasons for the Recommendation”
“The Special Factors — Opinion of Centerview”
“The Special Factors — Opinion of Kroll”
“The Special Factors — Opinion of Houlihan Lokey”
“The Special Factors — Interests of Our Directors and Executive Officers in the Merger”
“The Special Factors — Fees and Expenses”
“Other Agreements”
“Annex C: Opinion of Centerview Partners LLC”
“Annex D: Opinion of Kroll, LLC”
“Annex E: Opinion of Houlihan Lokey Capital, Inc.”
“Annex G: Emanuel Rollover Agreement”
“Annex H: Whitesell Rollover Agreement”
“Annex I: Shapiro Rollover Agreement”
“Annex J: Emanuel Letter Agreement”
“Annex K: Whitesell Letter Agreement”
“Annex L: Second Shapiro Employment Agreement Amendment”
“Annex M: Shapiro A&R Employment Agreement”
“Annex N: Emanuel Letter Agreement Amendment”
“Annex O: Third Shapiro Employment Agreement Amendment”
“Annex P: Shapiro A&R Employment Agreement Amendment”
17
ITEM 15. ADDITIONAL INFORMATION
(b) Golden Parachute Compensation. The information set forth in the Information Statement under the following captions is incorporated herein by reference:
“The Special Factors — Interests of Our Directors and Executive Officers in the Mergers”
(c) Other Material Information. The information set forth in the Information Statement, including all annexes thereto, is incorporated herein by reference.
Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and SL SPV-4, L.P., attached hereto as Exhibit (b)(1).
Amended and Restated Equity Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(2).
Second Amended and Restated Equity Commitment Letter, dated November 11, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(3).
Third Amended and Restated Equity Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., Wildcat OpCo Holdco, L.P., Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P., SL SPV-4, L.P. and Endeavor Group Holdings, Inc., attached hereto as Exhibit (b)(4).
Preferred Equity Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., DFO Private Investments, L.P. and Thirty Fifth Investment Company L.L.C., attached hereto as Exhibit (b)(9).
Preferred Equity Commitment Letter, dated June 6, 2024, by and among Wildcat EGH Holdco, L.P. and Coatue Tactical Solutions PS Holdings AIV 9 LP, attached hereto as Exhibit (b)(10).
Preferred Equity Commitment Letter, dated July 29, 2024, by and among Wildcat EGH Holdco, L.P. and Meritage Fund Select I LLC, attached hereto as Exhibit (b)(11).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., PEV Onshore Holdings 2036 LLC, PEV Offshore Holdings 2014 LP, PEV SB Employee Onshore Aggregator II LLC and PEV SB Employee Offshore Aggregator II LP, attached hereto as Exhibit (b)(12).
Preferred Equity Commitment Letter, dated November 12, 2024, by and among Wildcat EGH Holdco, L.P., Goldman Sachs Asset Management, L.P., on behalf of certain advised funds and managed accounts, and Broad Street Principal Investments, L.L.C., attached hereto as Exhibit (b)(13).
Commitment Letter, dated April 2, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch and Royal Bank of Canada, attached hereto as Exhibit (b)(5).
Amended and Restated Commitment Letter, dated April 19, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., BofA Securities, Inc., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, Inc., Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(6).
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Second Amended and Restated Commitment Letter, dated September 13, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(7).
Third Amended and Restated Commitment Letter, dated December 16, 2024, by and among Wildcat EGH Holdco, L.P., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., Bank of America, N.A., BofA Securities, Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Royal Bank of Canada, Wells Fargo Bank, National Association, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., HSBC Bank USA, National Association and HSBC Securities (USA) Inc., attached hereto as Exhibit (b)(8).
Limited Guarantee, dated April 2, 2024, by and among Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and Endeavor Operating Company, LLC, attached hereto as Exhibit (b)(14).
ITEM 16. EXHIBITS
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20
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| † | Certain portions of this exhibit have been redacted and separately filed with the SEC pursuant to a request for confidential treatment. |
| * | To be filed herewith |
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SIGNATURES
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.
Dated as of December 20, 2024
| ENDEAVOR GROUP HOLDINGS, INC. | ||
| By: | /s/ Jason Lublin | |
| Name: Jason Lublin | ||
| Title: Chief Financial Officer | ||
| ENDEAVOR OPERATING COMPANY, LLC | ||
| By: | /s/ Jason Lublin | |
| Name: Jason Lublin | ||
| Title: Chief Financial Officer | ||
| ENDEAVOR MANAGER, LLC | ||
| By: | /s/ Jason Lublin | |
| Name: Jason Lublin | ||
| Title: Chief Financial Officer | ||
| ENDEAVOR EXECUTIVE HOLDCO, LLC | ||
| By: | /s/ Patrick Whitesell | |
| Name: Patrick Whitesell | ||
| Title: Director | ||
| ENDEAVOR EXECUTIVE II HOLDCO, LLC | ||
| By: | /s/ Patrick Whitesell | |
| Name: Patrick Whitesell | ||
| Title: Director | ||
| ENDEAVOR EXECUTIVE PIU HOLDCO, LLC | ||
| By: | /s/ Patrick Whitesell | |
| Name: Patrick Whitesell | ||
| Title: Director | ||
| SILVER LAKE WEST HOLDCO, L.P. | ||
| By: SILVER LAKE WEST VOTECO, L.L.C., its general partner | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Managing Member | ||
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| SILVER LAKE WEST HOLDCO II, L.P. | ||
| By: SILVER LAKE WEST VOTECO, L.L.C., its general partner | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Managing Member | ||
| SILVER LAKE WEST VOTECO, L.L.C. | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Managing Member | ||
| WILDCAT EGH HOLDCO, L.P. | ||
| By: SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| WILDCAT OPCO HOLDCO, L.P. | ||
| By: SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
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| WILDCAT PUBCO MERGER SUB, INC. | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: President | ||
| WILDCAT OPCO MERGER SUB, L.L.C. | ||
| By: WILDCAT OPCO HOLDCO, L.P., its managing member | ||
| By: SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| WILDCAT MANAGER MERGER SUB, L.L.C. | ||
| By: WILDCAT PUBCO MERGER SUB, INC., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: President | ||
| SLP WILDCAT AGGREGATOR GP, L.L.C. | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
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| SILVER LAKE PARTNERS VI, L.P. | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VI, L.P., its general partner | ||
| By: SLTA VI (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SILVER LAKE PARTNERS VII, L.P. | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its general partner | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SL SPV-4, L.P. | ||
| By: SLTA SPV-4, L.P., its general partner | ||
| By: SLTA SPV-4 (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SILVER LAKE TECHNOLOGY ASSOCIATES VI, L.P. | ||
| By: SLTA VI (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
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| SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P. | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SLTA SPV-4, L.P. | ||
| By: SLTA SPV-4 (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SLTA VI (GP), L.L.C. | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SLTA VII (GP), L.L.C. | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| SLTA SPV-4 (GP), L.L.C. | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
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| SILVER LAKE GROUP, L.L.C. | ||
| By: | /s/ Egon Durban | |
| Name: Egon Durban | ||
| Title: Co-CEO | ||
| ARIEL EMANUEL | ||
| /s/ Ariel Emanuel | ||
| PATRICK WHITESELL | ||
| /s/ Patrick Whitesell | ||
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| Exhibit (b)(3) |
| CONFIDENTIAL |
| FOR DISCUSSION PURPOSES ONLY |
November 11, 2024
Wildcat EGH Holdco, L.P.
c/o Silver Lake Partners
2775 Sand Hill Road, Suite 100
Menlo Park, CA 94025
c/o Wildcat OpCo Holdco, L.P.
c/o Silver Lake Partners
2775 Sand Hill Road, Suite 100
Menlo Park, CA 94025
| Re: | Equity Financing Commitment |
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of April 2, 2024 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Wildcat EGH Holdco, L.P., a Delaware limited partnership (“Holdco Parent”), Wildcat OpCo Holdco, L.P., a Delaware limited partnership (“OpCo Parent” and, together with Holdco Parent, the “Parent Entities” and each, a “Parent Entity”), Wildcat PubCo Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Holdco Parent (“Company Merger Sub”), Wildcat Manager Merger Sub, L.L.C., a Delaware limited liability company and wholly-owned subsidiary of Company Merger Sub (“Manager Merger Sub”), Wildcat OpCo Merger Sub, L.L.C., a Delaware limited liability company and wholly-owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Company Merger Sub and Manager Merger Sub, the “Merger Subs” and each, a “Merger Sub”), Endeavor Group Holdings, Inc., a Delaware corporation (the “Company”), Endeavor Manager, LLC, a Delaware limited liability company and subsidiary of the Company (the “Manager”), and Endeavor Operating Company, LLC, a Delaware limited liability company and subsidiary of the Manager (“OpCo” and, together with the Company and the Manager, the “Company Entities” and each, a “Company Entity”), pursuant to which, upon the terms and subject to the conditions set forth therein, among other things, the Parent Entities will acquire the Company Entities by (i) causing Company Merger Sub to merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of Holdco Parent, (ii) causing Manager Merger Sub to merge with and into the Manager, with the Manager surviving as an indirect subsidiary of Holdco Parent and (iii) causing OpCo Merger Sub to merge with and into OpCo, with the OpCo surviving as the surviving company owned by the OpCo Parent, the Manager and the Rollover Holders (as defined therein). Each capitalized term or other term used and not defined herein but defined in the Merger Agreement shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided. Each of Silver Lake Partners VI, L.P. (“SLP Fund VI”), Silver Lake Partners VII, L.P. (“SLP Fund VII”) and SL SPV-4, L.P. (“SLP SPV”) is referred to herein as an “Equity Investor” and collectively, the “Equity Investors”. The parties hereto agree that this letter agreement hereby amends, restates and supersedes in its entirety that certain Equity Commitment Letter, dated as of April 2, 2024, by and between the Equity Investors and the Parent Entities, as amended and restated as of September 13, 2024.
1. Commitment. Subject to the conditions set forth herein, each Equity Investor hereby agrees to purchase immediately prior to the Closing, equity interests of Holdco Parent (or, to the extent designated by Holdco Parent prior to Closing, OpCo Parent) (collectively, the “Subject Equity Securities”) for an aggregate purchase price equal to, or otherwise make contributions to or invest funds as equity in Holdco Parent (or, to the extent designated by Holdco Parent prior to Closing, OpCo Parent) in an aggregate amount equal to, the respective proportion set forth opposite such Equity Investor’s name on Schedule A hereto (such proportion for such Equity Investor, as may be adjusted pursuant to the terms hereof, being its “Respective Proportion”) such that the aggregate purchase price for all such equity interests purchased by all such Equity Investors shall equal an aggregate purchase price of $6,551,940,000 plus the Asset Sale Commitment Amount (as defined below) (if any) (the “Equity Financing Commitment”) (the allocation of the Equity Financing Commitment between Holdco Parent and OpCo Parent to be designated in writing by the Equity Investors prior to Closing). The Equity Financing Commitment shall be used by the Parent Entities solely for the purpose of funding, along with the proceeds of the Debt Financing, the Required Amount pursuant to and in accordance with the terms and conditions of the Merger Agreement, and not for any other purpose; provided, each Equity Investor (together with its permitted assigns, as applicable) shall not under any circumstances be obligated under this letter agreement to fund an amount in excess of its Respective Proportion of the Equity Financing Commitment. The Equity Investors’ obligations to fund their Respective Proportions of the Equity Financing Commitment is several and not joint such that each Equity Investor (together with its permitted assigns, as applicable) is only obligated to funds its Respective Proportion of the Equity Financing Commitment. The obligation of each Equity Investor (together with its permitted assigns, as applicable) to fund its Respective Proportion of the Equity Financing Commitment is subject solely to:
(a) the satisfaction or waiver of the conditions precedent to the Parent Entities’ obligations to effect the Closing set forth in Sections 8.01 and 8.02 of the Merger Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being able to be satisfied (or waived));
(b) the prior or substantially concurrent funding of the proceeds of the Debt Financing pursuant to the Debt Commitment Letter (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms) solely with respect to amounts required to consummate the Mergers; and
(c) the substantially concurrent consummation of the Closing on the terms and subject to the conditions of the Merger Agreement (including, if applicable, pursuant to an order requiring the Parent Entities to specifically perform their obligations to effectuate the Closing pursuant to the terms of the Merger Agreement).
The amount to be funded under this letter agreement may be reduced dollar for dollar (any such reduction to be allocated between the Equity Investors as designated in writing by the Parent Entities or otherwise on a pro rata basis between the Equity Investors) solely to the extent that the
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Parent Entities and the Merger Subs do not require the full amount of the Equity Financing Commitment in connection with the payment of the Required Amount, it being understood that any such reduction pursuant to this paragraph shall only occur to the extent that, after giving effect to any such reduction, the Parent Entities would still be able to fully and timely consummate the Transactions (including, for the avoidance of doubt, payment of the Required Amount) in accordance with the terms of the Merger Agreement. The amount to be funded under this letter agreement may also be reduced dollar for dollar (and such reduction to be allocated between the Equity Investors as designated by the Parent Entities) by an amount equal to the value (based on the applicable Merger Consideration) of Shares and OpCo Membership Interests that are beneficially owned by the Equity Investors or their Affiliates and for which the Equity Investors agree irrevocably in writing that such Shares and OpCo Membership Interests shall be Rollover Shares or Rollover Units, as applicable, pursuant to the applicable Rollover Agreements, it being understood that any such reduction pursuant to this paragraph shall only occur to the extent that such Rollover Shares or Rollover Units, as applicable, are treated as Rollover Shares or Rollover Units under the Merger Agreement at the Company Merger Effective Time and OpCo Merger Effective Time, as applicable. Notwithstanding anything to the contrary set forth herein, the Asset Sale Commitment Amount shall only be effective and included in the Equity Financing Commitment upon the closing of the transactions contemplated by the agreement listed on Annex A hereto and thereafter shall be subject to the terms and conditions hereof. The “Asset Sale Commitment Amount” shall mean the lesser of (A) $40,000,000 and (B) the Company Sale Net Proceeds Deficit (if any).
2. Termination. This letter agreement and each Equity Investor’s obligation to fund its Respective Proportion of the Equity Financing Commitment will terminate automatically and immediately upon the earliest to occur of:
(a) the valid termination of the Merger Agreement in accordance with its terms (provided that, for the avoidance of doubt, any purported termination of the Merger Agreement that is not, or is later determined not to have been, a valid termination shall not give rise to a termination pursuant to this Section 2(a));
(b) the filing by the Company or any of its Subsidiaries of any Action against the Equity Investors, the Parent Entities or Merger Subs or any Parent Related Party (as defined below) in respect of this letter agreement, the limited guarantee of the Equity Investors, dated as of April 2, 2024 (the “Guarantee”), or the Merger Agreement (including in respect of any oral representations made or alleged to be made in connection therewith) other than in connection with any claims or other Actions (i) for (A) equitable relief against the Parent Entities or the Merger Subs (or their respective permitted assignees and successors) pursuant to, and subject to any applicable limitations set forth in, Section 10.08 of the Merger Agreement and this letter agreement, if any, (B) payment of the Parent Termination Fee and any Additional Obligations, and/or (C) other remedies (whether for equitable relief or otherwise) available to the Company Entities against the Parent Entities or the Merger Subs (or their respective permitted assignees and successors) under the Merger Agreement, in each case in accordance with, and solely to the extent permitted under, the Merger Agreement, (ii) against the Equity Investors (or their respective permitted assignees or successors) for (X) payment of their respective obligations under the
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Guarantee in accordance with, and solely to the extent permitted under, the Guarantee, (Y) specific performance of, or other equitable relief that enforces, the Equity Investors’ obligations to fund the Equity Financing Commitment in accordance with, and solely to the extent permitted under, the terms hereof and the terms of the Merger Agreement, and/or (Z) other remedies available to the Company Entities against the Equity Investors (or their respective permitted assignees and successors) under the terms of the Guarantee, in each case in accordance with, and solely to the extent permitted under, the terms thereof, (iii) against Silver Lake Technology Management, L.L.C. (or its permitted assignees or successors) under the Confidentiality Agreement in accordance with, and solely to the extent permitted under, the terms thereunder, (iv) against the Equity Investors (or their permitted assignees or successors), the Parent Entities (or their permitted assignees or successors) or the Merger Subs (or their permitted assignees or successors) under any other agreement entered into by any such Persons and the Company or its Subsidiaries after April 2, 2024, in each case, in accordance with, and solely to the extent permitted under, such agreements, and (v) to enforce the terms of the Rollover Agreements with the Management Holders and the Voting Agreement, as applicable, in accordance with, and solely to the extent permitted by, the terms of the Rollover Agreements with the Management Holders and the Voting Agreement, as applicable (the Actions contemplated by the foregoing clauses (i), (ii), (iii), (iv) and (v), the “Non-Prohibited Claims”);
(c) any final, non-appealable judgment of a court of competent jurisdiction against the Equity Investors with respect to any Non-Prohibited Claim by the Company or any of its Subsidiaries that includes an award of the Parent Termination Fee and/or the Additional Obligations; and
(d) the Closing and the payment of the Required Amount in accordance with the terms of the Merger Agreement (only after which the obligations hereunder shall be discharged).
Upon termination of this letter agreement pursuant to the terms hereof, the Equity Investors shall not have any further obligations or liabilities hereunder. Sections 2 (Termination), 4 (Assignment; Amendments and Waivers; Entire Agreement), 5 (Parties in Interest), 6 (Limited Recourse; Enforcement), 7 (Confidentiality) and 8 (Governing Law; Jurisdiction; Waiver of Jury Trial) of this letter agreement shall survive and remain in full force and effect, notwithstanding any termination of this letter agreement. For the avoidance of doubt, upon the valid termination of this letter agreement pursuant to the terms hereof, all obligations of the Equity Investors to fund the Equity Financing Commitment shall terminate and no surviving provision shall be deemed to require the Equity Investors to fund any portion of the Equity Financing Commitment.
3. Representations and Warranties. Each Equity Investor hereby represents and warrants (and makes no other representations or warranties, express or implied) that:
(a) It is duly organized or incorporated, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation.
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(b) The execution, delivery of and performance under this letter agreement by it is within its organizational or corporate powers and has been duly authorized by all necessary organizational or corporate (or equivalent) action.
(c) This letter agreement has been duly executed and delivered by it and, assuming the due authorization, execution and delivery by the Parent Entities, constitutes its valid and binding agreement, enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
(d) The execution and delivery of and performance under, this letter agreement by it do not and will not (i) violate its organizational documents, (ii) violate any provision of applicable Law or (iii) conflict with any Contract binding upon it, except in the case of (ii) and (iii) as would not reasonably be expected to, individually or in the aggregate, materially affect its ability to enter into this letter agreement or timely perform its obligations hereunder.
(e) All authorizations, consents, Orders, approvals, licenses, permits, expirations or terminations of waiting periods, and waivers of, and all notices, reports and other filings to, all Governmental Authorities that may be or become necessary for the due execution, delivery and performance of this letter by such Equity Investor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this letter except as would not reasonably be expected to, individually or in the aggregate, materially affect such Equity Investor’s ability to enter into this letter or timely perform its obligations hereunder.
(f) From the date hereof until the termination of this letter agreement in accordance with Section 2 hereof, such Equity Investor has, and until such time will maintain, uncalled capital commitments or unrestricted funds on hand in an amount not less than the its Respective Proportion of the Equity Financing Commitment plus the aggregate amount of all other unfunded contractually binding commitments of such Equity Investor then outstanding.
(g) Such Equity Investor’s Respective Proportion of the Equity Financing Commitment is less than the maximum amount that such Equity Investor is permitted to invest in any one portfolio investment pursuant to the terms of its organizational or governing documents.
4. Assignment; Amendments and Waivers; Entire Agreement.
(a) The rights and obligations under this letter agreement may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise) by any party hereto without the prior written consent of the other parties and the Company (acting with the prior approval of the Special Committee) (and the Company shall be an express and intended third-party beneficiary of this Section 4(a) and shall be entitled to grant such consent in its sole discretion), and any attempted assignment shall be null and void and of no force or effect. Notwithstanding the foregoing, (i) the Parent Entities may assign, delegate or otherwise transfer all or a portion of their rights or obligations under this letter agreement to any assignee of the Parent Entities’ obligations under the Merger Agreement pursuant to an assignment in accordance
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with Section 10.06 of the Merger Agreement, (ii) each Equity Investor may assign, delegate or otherwise transfer all or a portion of its obligation to fund the Equity Financing Commitment to one or more of its Affiliated investment vehicles or any Person that is, directly or indirectly, wholly owned or otherwise controlled by or Affiliated with such Equity Investor or such Affiliated investment vehicles and (iii) each of SLP Fund VI, SLP Fund VII and SLP SPV shall be entitled, in its sole discretion, to assign, delegate or otherwise transfer all or a portion of its obligation to fund its Respective Proportion of the Equity Financing Commitment to either or both of the other Equity Investors and, upon any such assignment, delegation or transfer pursuant to this clause (iii), SLP Fund VI, SLP Fund VII or SLP SPV, as applicable, shall be irrevocably relieved of all such assigned, delegated or transferred obligations to fund its Respective Proportion of the Equity Financing Commitment hereunder; provided that, (a) in each case of the foregoing clauses (i) and (ii), no such assignment, delegation or transfer shall relieve such Equity Investor of its obligations hereunder, and (b) in each case of the foregoing clauses (i), (ii) and (iii), such assignment, delegation and/or transfer does not have the effect of preventing, impairing or delaying the Transactions or the funding of the Equity Financing Commitment at the time set forth in Section 1. Following any valid assignment, delegation or transfer by an Equity Investor of its obligations hereunder pursuant to the second sentence of this Section 4(a), such Equity Investor will provide the Parent Entities and the Company Entities written notice of such assignment, delegation or transfer. Upon any such assignment, delegation or transfer by an Equity Investor of its obligations hereunder pursuant to the second sentence of this Section 4(a), such assignee, delegate or transferee shall be deemed to have given the representations and warranties set forth in Section 3 of this letter agreement as of the time of such assignment, delegation or transfer. Any assignment, delegation or transfer in breach of Section 3 (in respect of the representations and warranties deemed to be made as of the time of such assignment, delegation or transfer) or in violation of this Section 4(a) shall be null and void and of no force and effect. As used herein, the term “Affiliated” shall have the correlative meaning of “Affiliate” as defined in the Merger Agreement.
(b) This letter agreement may not be amended, and no provision hereof waived or modified, except by an instrument duly executed by each of the parties hereto and the Company (acting with the prior approval of the Special Committee) (and the Company shall be an express and intended third-party beneficiary of this Section 4(b) and shall be entitled to grant such consent in its sole discretion). The failure of any party or third-party beneficiary to assert any of its rights under this letter agreement or otherwise shall not constitute a waiver of those rights.
(c) This letter agreement, including Schedule A attached hereto, the Guarantee and the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and undertakings, both written and oral, between the Equity Investors or any of their Affiliates, on the one hand, and the Parent Entities or any of their Affiliates, on the other hand, with respect to the subject matter hereof and thereof.
5. Parties in Interest. Except to the extent set forth in Section 4(a), Section 4(b) and Section 6(b), this letter agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and permitted assigns, and nothing in this letter agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this letter agreement, or any
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rights to enforce or cause the Parent Entities to enforce, the Equity Financing Commitment or any provisions of this letter agreement; provided, however that the Parent Related Parties are express, intended third party beneficiaries of Section 6(a) hereto.
6. Limited Recourse; Enforcement.
(a) Notwithstanding anything that may be expressed or implied in this letter agreement, the Guarantee, the Merger Agreement or any document or instrument delivered in connection herewith or therewith, the Parent Entities, by their acceptance of the benefits of the Equity Financing Commitment provided herein, covenant, agree and acknowledge that no Person other than the Equity Investors (and their successors and permitted assigns) shall have any obligations hereunder and that, notwithstanding that each Equity Investor or any of its permitted assigns may be a partnership or limited liability company, no Person has any rights of recovery against, and no recourse hereunder or under any documents or instruments delivered in connection herewith or in respect of any oral representations made or alleged to have been made in connection herewith or therewith shall be had against, any of the Parent Entities’, the Merger Subs’, the Equity Investors’ or any of their or their respective Affiliates’ respective former, current or future directors, officers, employees, direct or indirect holders of any equity, stockholders, controlling persons, attorneys, members, managers, general or limited partners, assignees (other than a permitted assignee hereunder), agents, representatives or representatives of any of the foregoing (other than, in each applicable case, the Parent Entities, the Merger Subs and the Equity Investors and their respective successors and permitted assigns, a “Parent Related Party” and together, the “Parent Related Parties”), whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim (whether at law or equity or in tort, contract or otherwise) by or on behalf of the Equity Investor against any Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, or otherwise, it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Parent Related Party for any obligations of any Equity Investor or any of its successors or permitted assigns under this letter agreement, the Merger Agreement or under any documents or instruments delivered in connection herewith or therewith in respect of any transaction contemplated hereby or in respect of any oral representations made or alleged to have been made in connection herewith or for any claim (whether at law or equity or in tort, contract or otherwise) based on, in respect of, or by reason of such obligations or their creation; provided, however, that notwithstanding anything to the contrary provided herein or any document or instrument delivered in connection herewith, nothing herein (including this Section 6) shall limit the Non-Prohibited Claims or the third-party beneficiary rights made expressly available to the Company hereunder.
(b) Subject to the proviso in Section 5, this letter agreement may only be enforced by the Parent Entities, and none of the Parent Entities’ creditors nor any other Person that is not a party to this letter agreement shall have any right to enforce this letter agreement or to cause the Parent Entities to enforce this letter agreement; provided, however, that the Company is hereby made an express and intended third party beneficiary of the rights granted to the Parent Entities under this letter agreement (which third party beneficiary rights the Special Committee shall be entitled to enforce) only for the purpose of seeking (and, if applicable, obtaining) specific performance or injunction(s) (A) to cause the Equity Investors (or their respective successors or
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permitted assigns), or to cause the Parent Entities to cause the Equity Investors (or their respective successors or permitted assigns), to comply with the terms of this letter agreement, including to satisfy the Equity Investors’ obligation to fund the Equity Financing Commitment hereunder (subject to the limitations set forth in this letter agreement, including Section 1 of this letter agreement), in each case subject to the conditions of the Merger Agreement, including the conditions set forth in Section 10.08(a) of the Merger Agreement (solely to the extent that the Parent Entities can enforce the Equity Financing Commitment pursuant to the terms hereof), and for no other purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) and (B) with respect to its express rights to notice of or consent pursuant to Sections 4(a) and 4(b). The Equity Investor acknowledges and agrees that (I) the Parent Entities are delivering a copy of this letter agreement to the Company and that the Company is relying on the third-party beneficiary rights, representations, warranties, obligations and commitments of the Equity Investor hereunder in connection with the Company’s decision to enter into the Merger Agreement and consummate the Transactions, and (II) the enforcement rights under this Section 6(b) (subject to the requirements and limitations herein and in the Merger Agreement) are an integral part of the Transactions and without those rights, the Company would not have entered into the Merger Agreement.
(c) Except as expressly set forth in Section 4(a), Section 4(b) and Section 6(b) hereof or in the Confidentiality Agreement, the Company’s remedies against the Equity Investors under this letter agreement and under the Guarantee are intended to be the sole and exclusive direct or indirect remedies available to the Company Related Parties against the Equity Investors or any Parent Related Party for any liability, loss, damage or recovery of any kind in connection with, relating to, arising out of or resulting from any breach of the Merger Agreement, the failure of the Transactions to be consummated for any reason or otherwise in connection with the transactions contemplated hereby and thereby or in respect of any representations made or alleged to have been made in connection therewith, whether in equity or at law, in contract, in tort or otherwise (whether or not a Parent Entity’s or a Merger Sub’s breach is caused by the breach by the Equity Investor of its obligations under this letter agreement) and neither the Equity Investors nor any Parent Related Party shall have any further liability or obligation relating to or arising out of such matters; provided, however, that nothing herein (including this Section 6) shall limit the Non-Prohibited Claims, the third-party beneficiary rights made expressly available to the Company hereunder or the remedies available to the Company Entities under the Rollover Agreement or the Voting Agreement.
7. Confidentiality. This letter agreement shall be treated as confidential and is being provided to the Parent Entities solely in connection with the Merger Agreement. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Equity Investor; provided that no such written consent shall be required for disclosures by the Parent Entities to the Company Entities (or their respective Representatives) so long as the Company Entities agree to (and to cause their respective Representatives to) keep such information confidential on terms substantially identical to the terms contained in this Section 7; provided, further, that any party hereto may disclose the existence of this letter agreement to the extent required by any applicable Law, the applicable rules of any national securities exchange, in connection with any securities regulatory agency filings relating to the transactions contemplated by the Merger Agreement, or in connection with the enforcement of any such party’s rights hereunder or under the Guarantee or the Merger Agreement.
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8. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This letter agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware.
(b) The parties hereto agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this letter agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided, however, that, if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any federal or state court located in the State of Delaware. Consistent with the preceding sentence, each of the parties hereto hereby (i) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action arising out of or relating to this letter agreement brought by either party hereto, (ii) agrees that service of process will be validly effected by sending notice in accordance with Section 10.02 of the Merger Agreement and (iii) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this letter agreement or the transactions contemplated hereby may not be enforced in or by any of the above named courts.
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS LETTER AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(c).
9. Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this letter agreement. When a reference is made in this letter agreement to a Section, such reference shall be to a Section of this letter agreement unless otherwise indicated.
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10. Counterparts. This letter agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form) in counterparts, and by the different parties hereto 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 letter agreement.
[Remainder of this page intentionally left blank.]
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| Very truly yours, | ||
| EQUITY INVESTORS: | ||
| SILVER LAKE PARTNERS VI, L.P. | ||
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES VI, L.P., its general partner | |
| By: | SLTA VI (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Andrew J. Schader | |
| Name: | Andrew J. Schader | |
| Title: | Managing Director and General Counsel | |
| SILVER LAKE PARTNERS VII, L.P. | ||
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES L.P., its general partner | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Andrew J. Schader | |
| Name: | Andrew J. Schader | |
| Title: | Managing Director and General Counsel | |
| SL SPV-4, L.P. | ||
| By: | SLTA SPV-4, L.P., its general partner | |
| By: | SLTA SPV-4 (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Andrew J. Schader | |
| Name: | Andrew J. Schader | |
| Title: | Managing Director and General Counsel | |
[Second Amended and Restated Equity Commitment Letter]
| Accepted and acknowledged: | ||
| WILDCAT EGH HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Andrew J. Schader | |
| Name: | Andrew J. Schader | |
| Title: | Managing Director and General Counsel | |
| WILDCAT OPCO HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Andrew J. Schader | |
| Name: | Andrew J. Schader | |
| Title: | Managing Director and General Counsel | |
[Second Amended and Restated Equity Commitment Letter]
Solely for purposes of Section 4(b),
| ENDEAVOR GROUP HOLDINGS, INC. | ||
| By: | /s/ Jason Lublin | |
| Name: | Jason Lublin | |
| Title: | Chief Financial Offier | |
[Second Amended and Restated Equity Commitment Letter]
Schedule A
Proportions
| Equity Investor |
Respective Proportion | |||
| Silver Lake Partners VI, L.P. |
12.29178 | % | ||
| Silver Lake Partners VII, L.P. |
68.24834 | % | ||
| SL SPV-4, L.P. |
19.45988 | % | ||
| Aggregate Proportion |
100.00 | % | ||
Annex A
| 1. | The Transaction Agreement, dated as of November 11, 2024 (as amended, restated, supplemented, replaced or otherwise modified from time to time), by and among OB Global Holdings LLC, a Delaware limited liability company, WME IMG, LLC, Delaware limited liability company, OB US Parent, LLC, a Delaware limited liability company and IMG Arena US Parent, LLC, a Delaware limited liability company. |
Exhibit (b)(4)
Execution Version
CONFIDENTIAL
FOR DISCUSSION PURPOSES ONLY
December 16, 2024
Wildcat EGH Holdco, L.P.
c/o Silver Lake Partners
2775 Sand Hill Road, Suite 100
Menlo Park, CA 94025
c/o Wildcat OpCo Holdco, L.P.
c/o Silver Lake Partners
2775 Sand Hill Road, Suite 100
Menlo Park, CA 94025
| Re: | Equity Financing Commitment |
Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of April 2, 2024 (as amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Wildcat EGH Holdco, L.P., a Delaware limited partnership (“Holdco Parent”), Wildcat OpCo Holdco, L.P., a Delaware limited partnership (“OpCo Parent” and, together with Holdco Parent, the “Parent Entities” and each, a “Parent Entity”), Wildcat PubCo Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Holdco Parent (“Company Merger Sub”), Wildcat Manager Merger Sub, L.L.C., a Delaware limited liability company and wholly-owned subsidiary of Company Merger Sub (“Manager Merger Sub”), Wildcat OpCo Merger Sub, L.L.C., a Delaware limited liability company and wholly-owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Company Merger Sub and Manager Merger Sub, the “Merger Subs” and each, a “Merger Sub”), Endeavor Group Holdings, Inc., a Delaware corporation (the “Company”), Endeavor Manager, LLC, a Delaware limited liability company and subsidiary of the Company (the “Manager”), and Endeavor Operating Company, LLC, a Delaware limited liability company and subsidiary of the Manager (“OpCo” and, together with the Company and the Manager, the “Company Entities” and each, a “Company Entity”), pursuant to which, upon the terms and subject to the conditions set forth therein, among other things, the Parent Entities will acquire the Company Entities by (i) causing Company Merger Sub to merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of Holdco Parent, (ii) causing Manager Merger Sub to merge with and into the Manager, with the Manager surviving as an indirect subsidiary of Holdco Parent and (iii) causing OpCo Merger Sub to merge with and into OpCo, with the OpCo surviving as the surviving company owned by the OpCo Parent, the Manager and the Rollover Holders (as defined therein). Each capitalized term or other term used and not defined herein but defined in the Merger Agreement shall have the meaning ascribed to it in the Merger Agreement, except as otherwise provided. Each of Silver Lake Partners VI, L.P. (“SLP Fund VI”), Silver Lake Partners VII, L.P. (“SLP Fund VII”) and SL SPV-4, L.P. (“SLP SPV”) is referred to herein as an “Equity Investor” and collectively, the “Equity Investors”. The parties hereto agree that this letter agreement hereby amends, restates and supersedes in its entirety that certain Equity Commitment Letter, dated as of
April 2, 2024, by and between the Equity Investors and the Parent Entities, as amended and restated as of September 13, 2024, as further amended and restated as of November 11, 2024.
1. Commitment. Subject to the conditions set forth herein, each Equity Investor hereby agrees to purchase immediately prior to the Closing, equity interests of Holdco Parent (or, to the extent designated by Holdco Parent prior to Closing, OpCo Parent) (collectively, the “Subject Equity Securities”) for an aggregate purchase price equal to, or otherwise make contributions to or invest funds as equity in Holdco Parent (or, to the extent designated by Holdco Parent prior to Closing, OpCo Parent) in an aggregate amount equal to, the respective proportion set forth opposite such Equity Investor’s name on Schedule A hereto (such proportion for such Equity Investor, as may be adjusted pursuant to the terms hereof, being its “Respective Proportion”) such that the aggregate purchase price for all such equity interests purchased by all such Equity Investors shall equal an aggregate purchase price of $7,051,940,000 plus the Asset Sale Commitment Amount (as defined below) (if any) (the “Equity Financing Commitment”) (the allocation of the Equity Financing Commitment between Holdco Parent and OpCo Parent to be designated in writing by the Equity Investors prior to Closing). The Equity Financing Commitment shall be used by the Parent Entities solely for the purpose of funding, along with the proceeds of the Debt Financing, the Required Amount pursuant to and in accordance with the terms and conditions of the Merger Agreement, and not for any other purpose; provided, each Equity Investor (together with its permitted assigns, as applicable) shall not under any circumstances be obligated under this letter agreement to fund an amount in excess of its Respective Proportion of the Equity Financing Commitment. The Equity Investors’ obligations to fund their Respective Proportions of the Equity Financing Commitment is several and not joint such that each Equity Investor (together with its permitted assigns, as applicable) is only obligated to funds its Respective Proportion of the Equity Financing Commitment. The obligation of each Equity Investor (together with its permitted assigns, as applicable) to fund its Respective Proportion of the Equity Financing Commitment is subject solely to:
(a) the satisfaction or waiver of the conditions precedent to the Parent Entities’ obligations to effect the Closing set forth in Sections 8.01 and 8.02 of the Merger Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but subject to such conditions being able to be satisfied (or waived));
(b) the prior or substantially concurrent funding of the proceeds of the Debt Financing pursuant to the Debt Commitment Letter (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms) solely with respect to amounts required to consummate the Mergers; and
(c) the substantially concurrent consummation of the Closing on the terms and subject to the conditions of the Merger Agreement (including, if applicable, pursuant to an order requiring the Parent Entities to specifically perform their obligations to effectuate the Closing pursuant to the terms of the Merger Agreement).
The amount to be funded under this letter agreement may be reduced dollar for dollar (any such reduction to be allocated between the Equity Investors as designated in writing by the Parent Entities or otherwise on a pro rata basis between the Equity Investors) solely to the extent that the Parent Entities and the Merger Subs do not require the full amount of the Equity Financing
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Commitment in connection with the payment of the Required Amount, it being understood that any such reduction pursuant to this paragraph shall only occur to the extent that, after giving effect to any such reduction, the Parent Entities would still be able to fully and timely consummate the Transactions (including, for the avoidance of doubt, payment of the Required Amount) in accordance with the terms of the Merger Agreement. The amount to be funded under this letter agreement may also be reduced dollar for dollar (and such reduction to be allocated between the Equity Investors as designated by the Parent Entities) by an amount equal to the value (based on the applicable Merger Consideration) of Shares and OpCo Membership Interests that are beneficially owned by the Equity Investors or their Affiliates and for which the Equity Investors agree irrevocably in writing that such Shares and OpCo Membership Interests shall be Rollover Shares or Rollover Units, as applicable, pursuant to the applicable Rollover Agreements, it being understood that any such reduction pursuant to this paragraph shall only occur to the extent that such Rollover Shares or Rollover Units, as applicable, are treated as Rollover Shares or Rollover Units under the Merger Agreement at the Company Merger Effective Time and OpCo Merger Effective Time, as applicable. Notwithstanding anything to the contrary set forth herein, the Asset Sale Commitment Amount shall only be effective and included in the Equity Financing Commitment upon the closing of the transactions contemplated by the agreement listed on Annex A hereto and thereafter shall be subject to the terms and conditions hereof. The “Asset Sale Commitment Amount” shall mean the lesser of (A) $40,000,000 and (B) the Company Sale Net Proceeds Deficit (if any).
2. Termination. This letter agreement and each Equity Investor’s obligation to fund its Respective Proportion of the Equity Financing Commitment will terminate automatically and immediately upon the earliest to occur of:
(a) the valid termination of the Merger Agreement in accordance with its terms (provided that, for the avoidance of doubt, any purported termination of the Merger Agreement that is not, or is later determined not to have been, a valid termination shall not give rise to a termination pursuant to this Section 2(a));
(b) the filing by the Company or any of its Subsidiaries of any Action against the Equity Investors, the Parent Entities or Merger Subs or any Parent Related Party (as defined below) in respect of this letter agreement, the limited guarantee of the Equity Investors, dated as of April 2, 2024 (the “Guarantee”), or the Merger Agreement (including in respect of any oral representations made or alleged to be made in connection therewith) other than in connection with any claims or other Actions (i) for (A) equitable relief against the Parent Entities or the Merger Subs (or their respective permitted assignees and successors) pursuant to, and subject to any applicable limitations set forth in, Section 10.08 of the Merger Agreement and this letter agreement, if any, (B) payment of the Parent Termination Fee and any Additional Obligations, and/or (C) other remedies (whether for equitable relief or otherwise) available to the Company Entities against the Parent Entities or the Merger Subs (or their respective permitted assignees and successors) under the Merger Agreement, in each case in accordance with, and solely to the extent permitted under, the Merger Agreement, (ii) against the Equity Investors (or their respective permitted assignees or successors) for (X) payment of their respective obligations under the Guarantee in accordance with, and solely to the extent permitted under, the Guarantee, (Y) specific performance of, or other equitable relief that enforces, the Equity Investors’ obligations to fund
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the Equity Financing Commitment in accordance with, and solely to the extent permitted under, the terms hereof and the terms of the Merger Agreement, and/or (Z) other remedies available to the Company Entities against the Equity Investors (or their respective permitted assignees and successors) under the terms of the Guarantee, in each case in accordance with, and solely to the extent permitted under, the terms thereof, (iii) against Silver Lake Technology Management, L.L.C. (or its permitted assignees or successors) under the Confidentiality Agreement in accordance with, and solely to the extent permitted under, the terms thereunder, (iv) against the Equity Investors (or their permitted assignees or successors), the Parent Entities (or their permitted assignees or successors) or the Merger Subs (or their permitted assignees or successors) under any other agreement entered into by any such Persons and the Company or its Subsidiaries after April 2, 2024, in each case, in accordance with, and solely to the extent permitted under, such agreements, and (v) to enforce the terms of the Rollover Agreements with the Management Holders and the Voting Agreement, as applicable, in accordance with, and solely to the extent permitted by, the terms of the Rollover Agreements with the Management Holders and the Voting Agreement, as applicable (the Actions contemplated by the foregoing clauses (i), (ii), (iii), (iv) and (v), the “Non-Prohibited Claims”);
(c) any final, non-appealable judgment of a court of competent jurisdiction against the Equity Investors with respect to any Non-Prohibited Claim by the Company or any of its Subsidiaries that includes an award of the Parent Termination Fee and/or the Additional Obligations; and
(d) the Closing and the payment of the Required Amount in accordance with the terms of the Merger Agreement (only after which the obligations hereunder shall be discharged).
Upon termination of this letter agreement pursuant to the terms hereof, the Equity Investors shall not have any further obligations or liabilities hereunder. Sections 2 (Termination), 4 (Assignment; Amendments and Waivers; Entire Agreement), 5 (Parties in Interest), 6 (Limited Recourse; Enforcement), 7 (Confidentiality) and 8 (Governing Law; Jurisdiction; Waiver of Jury Trial) of this letter agreement shall survive and remain in full force and effect, notwithstanding any termination of this letter agreement. For the avoidance of doubt, upon the valid termination of this letter agreement pursuant to the terms hereof, all obligations of the Equity Investors to fund the Equity Financing Commitment shall terminate and no surviving provision shall be deemed to require the Equity Investors to fund any portion of the Equity Financing Commitment.
3. Representations and Warranties. Each Equity Investor hereby represents and warrants (and makes no other representations or warranties, express or implied) that:
(a) It is duly organized or incorporated, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation.
(b) The execution, delivery of and performance under this letter agreement by it is within its organizational or corporate powers and has been duly authorized by all necessary organizational or corporate (or equivalent) action.
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(c) This letter agreement has been duly executed and delivered by it and, assuming the due authorization, execution and delivery by the Parent Entities, constitutes its valid and binding agreement, enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
(d) The execution and delivery of and performance under, this letter agreement by it do not and will not (i) violate its organizational documents, (ii) violate any provision of applicable Law or (iii) conflict with any Contract binding upon it, except in the case of (ii) and (iii) as would not reasonably be expected to, individually or in the aggregate, materially affect its ability to enter into this letter agreement or timely perform its obligations hereunder.
(e) All authorizations, consents, Orders, approvals, licenses, permits, expirations or terminations of waiting periods, and waivers of, and all notices, reports and other filings to, all Governmental Authorities that may be or become necessary for the due execution, delivery and performance of this letter by such Equity Investor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this letter except as would not reasonably be expected to, individually or in the aggregate, materially affect such Equity Investor’s ability to enter into this letter or timely perform its obligations hereunder.
(f) From the date hereof until the termination of this letter agreement in accordance with Section 2 hereof, such Equity Investor has, and until such time will maintain, uncalled capital commitments or unrestricted funds on hand in an amount not less than the its Respective Proportion of the Equity Financing Commitment plus the aggregate amount of all other unfunded contractually binding commitments of such Equity Investor then outstanding.
(g) Such Equity Investor’s Respective Proportion of the Equity Financing Commitment is less than the maximum amount that such Equity Investor is permitted to invest in any one portfolio investment pursuant to the terms of its organizational or governing documents.
4. Assignment; Amendments and Waivers; Entire Agreement.
(a) The rights and obligations under this letter agreement may not be assigned or delegated (whether by operation of law, merger, consolidation or otherwise) by any party hereto without the prior written consent of the other parties and the Company (acting with the prior approval of the Special Committee) (and the Company shall be an express and intended third-party beneficiary of this Section 4(a) and shall be entitled to grant such consent in its sole discretion), and any attempted assignment shall be null and void and of no force or effect. Notwithstanding the foregoing, (i) the Parent Entities may assign, delegate or otherwise transfer all or a portion of their rights or obligations under this letter agreement to any assignee of the Parent Entities’ obligations under the Merger Agreement pursuant to an assignment in accordance with Section 10.06 of the Merger Agreement, (ii) each Equity Investor may assign, delegate or otherwise transfer all or a portion of its obligation to fund the Equity Financing Commitment to one or more of its Affiliated investment vehicles or any Person that is, directly or indirectly, wholly owned or otherwise controlled by or Affiliated with such Equity Investor or such Affiliated investment vehicles and (iii) each of SLP Fund VI, SLP Fund VII and SLP SPV shall be entitled,
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in its sole discretion, to assign, delegate or otherwise transfer all or a portion of its obligation to fund its Respective Proportion of the Equity Financing Commitment to either or both of the other Equity Investors and, upon any such assignment, delegation or transfer pursuant to this clause (iii), SLP Fund VI, SLP Fund VII or SLP SPV, as applicable, shall be irrevocably relieved of all such assigned, delegated or transferred obligations to fund its Respective Proportion of the Equity Financing Commitment hereunder; provided that, (a) in each case of the foregoing clauses (i) and (ii), no such assignment, delegation or transfer shall relieve such Equity Investor of its obligations hereunder, and (b) in each case of the foregoing clauses (i), (ii) and (iii), such assignment, delegation and/or transfer does not have the effect of preventing, impairing or delaying the Transactions or the funding of the Equity Financing Commitment at the time set forth in Section 1. Following any valid assignment, delegation or transfer by an Equity Investor of its obligations hereunder pursuant to the second sentence of this Section 4(a), such Equity Investor will provide the Parent Entities and the Company Entities written notice of such assignment, delegation or transfer. Upon any such assignment, delegation or transfer by an Equity Investor of its obligations hereunder pursuant to the second sentence of this Section 4(a), such assignee, delegate or transferee shall be deemed to have given the representations and warranties set forth in Section 3 of this letter agreement as of the time of such assignment, delegation or transfer. Any assignment, delegation or transfer in breach of Section 3 (in respect of the representations and warranties deemed to be made as of the time of such assignment, delegation or transfer) or in violation of this Section 4(a) shall be null and void and of no force and effect. As used herein, the term “Affiliated” shall have the correlative meaning of “Affiliate” as defined in the Merger Agreement.
(b) This letter agreement may not be amended, and no provision hereof waived or modified, except by an instrument duly executed by each of the parties hereto and the Company (acting with the prior approval of the Special Committee) (and the Company shall be an express and intended third-party beneficiary of this Section 4(b) and shall be entitled to grant such consent in its sole discretion). The failure of any party or third-party beneficiary to assert any of its rights under this letter agreement or otherwise shall not constitute a waiver of those rights.
(c) This letter agreement, including Schedule A attached hereto, the Guarantee and the Merger Agreement constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and undertakings, both written and oral, between the Equity Investors or any of their Affiliates, on the one hand, and the Parent Entities or any of their Affiliates, on the other hand, with respect to the subject matter hereof and thereof.
5. Parties in Interest. Except to the extent set forth in Section 4(a), Section 4(b) and Section 6(b), this letter agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and permitted assigns, and nothing in this letter agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this letter agreement, or any rights to enforce or cause the Parent Entities to enforce, the Equity Financing Commitment or any provisions of this letter agreement; provided, however that the Parent Related Parties are express, intended third party beneficiaries of Section 6(a) hereto.
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6. Limited Recourse; Enforcement.
(a) Notwithstanding anything that may be expressed or implied in this letter agreement, the Guarantee, the Merger Agreement or any document or instrument delivered in connection herewith or therewith, the Parent Entities, by their acceptance of the benefits of the Equity Financing Commitment provided herein, covenant, agree and acknowledge that no Person other than the Equity Investors (and their successors and permitted assigns) shall have any obligations hereunder and that, notwithstanding that each Equity Investor or any of its permitted assigns may be a partnership or limited liability company, no Person has any rights of recovery against, and no recourse hereunder or under any documents or instruments delivered in connection herewith or in respect of any oral representations made or alleged to have been made in connection herewith or therewith shall be had against, any of the Parent Entities’, the Merger Subs’, the Equity Investors’ or any of their or their respective Affiliates’ respective former, current or future directors, officers, employees, direct or indirect holders of any equity, stockholders, controlling persons, attorneys, members, managers, general or limited partners, assignees (other than a permitted assignee hereunder), agents, representatives or representatives of any of the foregoing (other than, in each applicable case, the Parent Entities, the Merger Subs and the Equity Investors and their respective successors and permitted assigns, a “Parent Related Party” and together, the “Parent Related Parties”), whether by or through attempted piercing of the corporate (or limited liability company or limited partnership) veil, by or through a claim (whether at law or equity or in tort, contract or otherwise) by or on behalf of the Equity Investor against any Parent Related Party, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, or otherwise, it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Parent Related Party for any obligations of any Equity Investor or any of its successors or permitted assigns under this letter agreement, the Merger Agreement or under any documents or instruments delivered in connection herewith or therewith in respect of any transaction contemplated hereby or in respect of any oral representations made or alleged to have been made in connection herewith or for any claim (whether at law or equity or in tort, contract or otherwise) based on, in respect of, or by reason of such obligations or their creation; provided, however, that notwithstanding anything to the contrary provided herein or any document or instrument delivered in connection herewith, nothing herein (including this Section 6) shall limit the Non-Prohibited Claims or the third-party beneficiary rights made expressly available to the Company hereunder.
(b) Subject to the proviso in Section 5, this letter agreement may only be enforced by the Parent Entities, and none of the Parent Entities’ creditors nor any other Person that is not a party to this letter agreement shall have any right to enforce this letter agreement or to cause the Parent Entities to enforce this letter agreement; provided, however, that the Company is hereby made an express and intended third party beneficiary of the rights granted to the Parent Entities under this letter agreement (which third party beneficiary rights the Special Committee shall be entitled to enforce) only for the purpose of seeking (and, if applicable, obtaining) specific performance or injunction(s) (A) to cause the Equity Investors (or their respective successors or permitted assigns), or to cause the Parent Entities to cause the Equity Investors (or their respective successors or permitted assigns), to comply with the terms of this letter agreement, including to satisfy the Equity Investors’ obligation to fund the Equity Financing Commitment hereunder (subject to the limitations set forth in this letter agreement, including Section 1 of this letter agreement), in each case subject to the conditions of the Merger Agreement, including the
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conditions set forth in Section 10.08(a) of the Merger Agreement (solely to the extent that the Parent Entities can enforce the Equity Financing Commitment pursuant to the terms hereof), and for no other purpose (including, without limitation, any claim for monetary damages hereunder or under the Merger Agreement) and (B) with respect to its express rights to notice of or consent pursuant to Sections 4(a) and 4(b). The Equity Investor acknowledges and agrees that (I) the Parent Entities are delivering a copy of this letter agreement to the Company and that the Company is relying on the third-party beneficiary rights, representations, warranties, obligations and commitments of the Equity Investor hereunder in connection with the Company’s decision to enter into the Merger Agreement and consummate the Transactions, and (II) the enforcement rights under this Section 6(b) (subject to the requirements and limitations herein and in the Merger Agreement) are an integral part of the Transactions and without those rights, the Company would not have entered into the Merger Agreement.
(c) Except as expressly set forth in Section 4(a), Section 4(b) and Section 6(b) hereof or in the Confidentiality Agreement, the Company’s remedies against the Equity Investors under this letter agreement and under the Guarantee are intended to be the sole and exclusive direct or indirect remedies available to the Company Related Parties against the Equity Investors or any Parent Related Party for any liability, loss, damage or recovery of any kind in connection with, relating to, arising out of or resulting from any breach of the Merger Agreement, the failure of the Transactions to be consummated for any reason or otherwise in connection with the transactions contemplated hereby and thereby or in respect of any representations made or alleged to have been made in connection therewith, whether in equity or at law, in contract, in tort or otherwise (whether or not a Parent Entity’s or a Merger Sub’s breach is caused by the breach by the Equity Investor of its obligations under this letter agreement) and neither the Equity Investors nor any Parent Related Party shall have any further liability or obligation relating to or arising out of such matters; provided, however, that nothing herein (including this Section 6) shall limit the Non-Prohibited Claims, the third-party beneficiary rights made expressly available to the Company hereunder or the remedies available to the Company Entities under the Rollover Agreement or the Voting Agreement.
7. Confidentiality. This letter agreement shall be treated as confidential and is being provided to the Parent Entities solely in connection with the Merger Agreement. This letter agreement may not be used, circulated, quoted or otherwise referred to in any document, except with the written consent of the Equity Investor; provided that no such written consent shall be required for disclosures by the Parent Entities to the Company Entities (or their respective Representatives) so long as the Company Entities agree to (and to cause their respective Representatives to) keep such information confidential on terms substantially identical to the terms contained in this Section 7; provided, further, that any party hereto may disclose the existence of this letter agreement to the extent required by any applicable Law, the applicable rules of any national securities exchange, in connection with any securities regulatory agency filings relating to the transactions contemplated by the Merger Agreement, or in connection with the enforcement of any such party’s rights hereunder or under the Guarantee or the Merger Agreement.
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8. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This letter agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware.
(b) The parties hereto agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this letter agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided, however, that, if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any federal or state court located in the State of Delaware. Consistent with the preceding sentence, each of the parties hereto hereby (i) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action arising out of or relating to this letter agreement brought by either party hereto, (ii) agrees that service of process will be validly effected by sending notice in accordance with Section 10.02 of the Merger Agreement and (iii) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this letter agreement or the transactions contemplated hereby may not be enforced in or by any of the above named courts.
(c) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS LETTER AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(c).
9. Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this letter agreement. When a reference is made in this letter agreement to a Section, such reference shall be to a Section of this letter agreement unless otherwise indicated.
10. Counterparts. This letter agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form) in counterparts, and by the different parties hereto in separate
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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 letter agreement.
[Remainder of this page intentionally left blank.]
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| Very truly yours, | ||
| EQUITY INVESTORS: | ||
| SILVER LAKE PARTNERS VI, L.P. | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES VI, L.P., its general partner | ||
| By: SLTA VI (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Stephen Evans | |
| Name: | Stephen Evans | |
| Title: | Managing Director | |
| SILVER LAKE PARTNERS VII, L.P. | ||
| By: SILVER LAKE TECHNOLOGY ASSOCIATES L.P., its general partner | ||
| By: SLTA VII (GP), L.L.C., its general partner | ||
| By: SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Stephen Evans | |
| Name: | Stephen Evans | |
| Title: | Managing Director | |
| SL SPV-4, L.P. | ||
| By:SLTA SPV-4, L.P., its general partner | ||
| By:SLTA SPV-4 (GP), L.L.C., its general partner | ||
| By:SILVER LAKE GROUP, L.L.C., its managing member | ||
| By: | /s/ Stephen Evans | |
| Name: | Stephen Evans | |
| Title: | Managing Director | |
[Signature Page to Third Amended and Restated Equity Commitment Letter]
| Accepted and acknowledged: | ||
| WILDCAT EGH HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Stephen Evans | |
| Name: | Stephen Evans | |
| Title: | Managing Director | |
| WILDCAT OPCO HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | SILVER LAKE TECHNOLOGY ASSOCIATES VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Stephen Evans | |
| Name: | Stephen Evans | |
| Title: | Managing Director | |
[Signature Page to Third Amended and Restated Equity Commitment Letter]
| Solely for purposes of Section 4(b),
| ||
| ENDEAVOR GROUP HOLDINGS, INC. | ||
| By: | /s/ Jason Lublin | |
| Name: | Jason Lublin | |
| Title: | Chief Financial Officer | |
[Signature Page to Third Amended and Restated Equity Commitment Letter]
Schedule A
Proportions
| Equity Investor |
Respective Proportion | |||
| Silver Lake Partners VI, L.P. |
11.420262 | % | ||
| Silver Lake Partners VII, L.P. |
63.409364 | % | ||
| SL SPV-4, L.P. |
25.170374 | % | ||
| Aggregate Proportion |
100.00 | % | ||
Annex A
1. The Transaction Agreement, dated as of November 11, 2024 (as amended, restated, supplemented, replaced or otherwise modified from time to time), by and among OB Global Holdings LLC, a Delaware limited liability company, WME IMG, LLC, Delaware limited liability company, OB US Parent, LLC, a Delaware limited liability company and IMG Arena US Parent, LLC, a Delaware limited liability company.
Exhibit (b)(8)
Execution Version
CONFIDENTIAL
December 16, 2024
WILDCAT EGH HOLDCO, L.P.
c/o Silver Lake Partners
55 Hudson Yards
550 West 34th Street, 40th Floor
New York, NY 10001
Attention: Chip Schroeder
Project Wildcat
Third Amended and Restated Commitment Letter
Ladies and Gentlemen:
Reference is made to (i) that certain Commitment Letter, dated as of April 2, 2024 (the “Original Commitment Letter” and such date, the “Original Signing Date”) by and among JPM, MSSF, BofA, Goldman Sachs, Barclays, DB and RBC (each as defined below and, collectively, the “Original Commitment Parties”) and you, (ii) that certain Amended and Restated Commitment Letter, dated as of April 19, 2024 (the “First A&R Commitment Letter”) by and among the Commitment Parties (as defined below) and you and (iii) that certain Second Amended and Restated Commitment Letter, dated as of September 13, 2024 (the “Second A&R Commitment Letter”) by and among the Commitment Parties (as defined below) and you. The Second A&R Commitment Letter is hereby amended restated and superseded in its entirety as follows:
You have advised JPMorgan Chase Bank, N.A. (“JPM”), Morgan Stanley Senior Funding, Inc. (together with its designated affiliates, “MSSF”), Bank of America, N.A. (“Bank of America”), BofA Securities, Inc. (through itself or one of its affiliates, “BofA Securities”, together with Bank of America, “BofA”), Goldman Sachs Bank USA (together with any of its designated affiliates, “Goldman Sachs”), Barclays Bank PLC (“Barclays”), Deutsche Bank Securities Inc. (“DBSI”), Deutsche Bank AG New York Branch (“DBNY” and, together with DBSI, “DB”), Royal Bank of Canada (“RBC”), RBC Capital Markets1 (“RBCCM”), Wells Fargo Bank, National Association (“Wells Fargo Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities”), Citi (as defined below), HSBC Bank USA, National Association (“HSBC Bank”) and HSBC Securities (USA) Inc. (“HSBC Securities” and, together with JPM, MSSF, BofA, Goldman Sachs, Barclays, DB, RBC, RBCCM, Wells Fargo Bank, Wells Fargo Securities, Citi and HSBC Bank and any commitment parties added pursuant to the terms hereof, “we”, “us” or the “Commitment Parties”) that Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “you”), formed at the direction of Silver Lake Partners and its affiliates (collectively with the funds, partnerships, co-investment entities and other investment vehicles managed, advised or controlled thereby or by one or more directors thereof or under common control therewith, “Silver Lake”) and the Preferred Investors and, together with Silver Lake, the “Sponsors”), intends to consummate the Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description, the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Credit Facilities Term Sheet”), the Summary of Principal Terms and Conditions attached hereto as Exhibit C (the “Margin Loan Term Sheet” and, together with the Credit Facilities Term Sheet, the “Term Sheets”) and the Summary of Additional Conditions attached hereto as Exhibit D (together with this commitment letter and the Term Sheets, the “Commitment Letter”).
| 1 | RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its affiliates. |
For the purposes of this Commitment Letter, “Citi” shall mean Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates as Citi shall determine to be appropriate to provide the services contemplated herein.
| 1. | Commitments and Engagements. |
In connection with the Transactions, (i) each of JPM, MSSF, Bank of America, Goldman Sachs, Barclays, DB, RBC, Wells Fargo Bank, Citi and HSBC Bank is pleased to advise you of its several, but not joint, commitment to provide 15.00%, 15.00%, 15.00%, 15.00%, 10.00%, 10.00%, 10.00%, 3.34%, 3.33% and 3.33%, respectively, of the aggregate principal amount of the Initial Term A Facility, Initial Term B Facility and Revolving Facility, and (ii) each of JPM, Bank of America, Goldman Sachs, MSSF, Barclays, DB, RBC, Wells Fargo Bank, Citi and HSBC Bank is pleased to advise you of its several, but not joint, commitment to provide $89,494,222.45, $195,248,874.67, $135,024,084.65, $90,578,031.48, $104,831,407.48, $14,855,492.13, $60,024,084.65 , $50,100,000.00, $49,950,000.00 and $34,893,802.49, respectively, of the aggregate principal amount of the Margin Bridge Facility. JPM, MSSF, Bank of America and Goldman Sachs, collectively with any initial lenders added pursuant to the terms hereof, are referred to herein as the “Initial Lenders” and each individually as an “Initial Lender”.
In connection with the Transactions, each of JPM, MSSF, BofA, Goldman Sachs, Barclays, DB (or an affiliate thereof), RBCCM, Wells Fargo Securities, Citi and HSBC Securities is pleased to advise you of its agreement to use commercially reasonable efforts to arrange and provide the Margin Loan Facility. You agree that nothing herein shall constitute a commitment by us or any of our affiliates to provide or underwrite any portion of the Margin Loan Facility. You further agree that any decision by us or any of our affiliates to participate in the Margin Loan Facility will be subject to committee approval, which none of us or our affiliates has any legal obligation to obtain, and that in no event shall any failure to obtain such committee approval for any reason be deemed a breach of our legal obligations hereunder.
| 2. | Titles and Roles. |
It is agreed that (i) each of JPM, MSSF, BofA Securities, Goldman Sachs, Barclays, DB, RBCCM, Wells Fargo Securities, Citi and HSBC Securities will act as a joint lead arranger for each of the Facilities (together with any other lead arranger for each of the Facilities, if any, appointed pursuant to the terms hereof, each in such capacity, a “Lead Arranger” and, collectively, the “Lead Arrangers”), (ii) each of JPM, MSSF, BofA Securities, Goldman Sachs, Barclays, DB, RBCCM, Wells Fargo Securities, Citi and HSBC Securities will act as a joint bookrunner for each of the Facilities (together with any other bookrunner for each of the Facilities, if any, appointed pursuant the terms hereof, each in such capacity, a “Joint Bookrunner” and, collectively, the “Joint Bookrunners”) and (iii) JPM will act as administrative agent and collateral agent for the Credit Facilities (in such capacity, the “Administrative Agent”). It is further agreed that (a) JPM shall have “left side” designation and shall appear on the top left of any Information Materials (as defined below) and all other marketing materials in respect of the Initial Term A Facility, the Initial Term B Facility and the Revolving Facility, (b) the other Lead Arrangers will be listed in alphabetical order to the right of JPM in any Information Materials and all other marketing materials in respect of the Initial Term A Facility, the Initial Term B Facility and the Revolving Facility, (c) MSSF shall have “left side” designation and shall appear on the top left of any Information Materials and all other marketing materials in respect of the Margin Bridge Facility, (d) the other Lead Arrangers will be listed in alphabetical order to the right of MSSF in any Information Materials and all other marketing materials in respect of the Margin Bridge Facility, (e) MSSF shall have “left side” designation and shall appear on the top left of any Information Materials and all other marketing materials in respect
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of the Margin Loan Facility and (f) the other Lead Arrangers will be listed in alphabetical order to the right of MSSF in any Information Materials and all other marketing materials in respect of the Margin Loan Facility. Except as set forth below, you agree that no other agents, co-agents, arrangers, co-arrangers, bookrunners, co-bookrunners, managers or co-managers will be appointed, no other titles will be awarded and, with respect to the Facilities, no compensation (other than compensation expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid by you or any of your affiliates to any Lender (as defined below) in order to obtain its commitment to participate in the Credit Facilities or engagement to arrange the Margin Loan Facility unless you and the Required Lead Arrangers (as defined below) shall so agree.
| 3. | Syndication. |
The Lead Arrangers reserve the right, prior to and/or after the Closing Date (as defined below), to syndicate all or a portion of the Initial Lenders’ respective commitments hereunder to a group of banks, financial institutions and other institutional lenders and investors identified by the Lead Arrangers in consultation with you and reasonably acceptable to the Lead Arrangers and you (your consent not to be unreasonably withheld or delayed), including, without limitation, any relationship lenders designated by you and reasonably acceptable to the Lead Arrangers (such banks, financial institutions and other institutional lenders and investors, together with the Initial Lenders, the “Lenders”); provided that any assignment or participation of, or “back-to-back” arrangement with respect to, the Initial Term A Facility prior to the Closing Date shall be subject to your prior written consent or otherwise in accordance with the terms of a coordination agreement to be negotiated in good faith and entered into within a reasonable time period after the Original Signing Date (the “Coordination Agreement”) (it being understood that such Coordination Agreement shall be reasonably satisfactory to each Initial Lender). Notwithstanding the foregoing, and subject to any additional conditions set forth in Exhibit C, the Lead Arrangers will not syndicate to those banks, financial institutions and other institutional lenders and investors (i) that have been separately identified in writing by you (x) to us prior to the date of this Commitment Letter, (y) to us after the date of this Commitment Letter and prior to the Closing Date, that are reasonably acceptable to the Lead Arrangers holding a majority of the aggregate amount of outstanding financing commitments in respect of the Facilities (the “Required Lead Arrangers”) and (z) with respect to the Credit Facilities, to the Administrative Agent after the Closing Date, that are reasonably acceptable to the Administrative Agent), (ii) those persons who are competitors of you, the Target and your and their respective subsidiaries that are separately identified in writing by you to us from time to time, (iii) in the case of each of clauses (i) and (ii), any of their respective affiliates (other than bona fide debt fund affiliates) that are either (a) identified in writing by you from time to time or (b) clearly identifiable on the basis of such affiliate’s name and (iv) any Excluded Affiliates (as defined in the Credit Facilities Precedent Documentation but excluding Goldman Sachs Asset and Wealth Management Division)) (clauses (i), (ii), (iii) and (iv) above, collectively “Disqualified Lenders”); provided that designations of Disqualified Lenders may not apply retroactively to disqualify any entity that has previously acquired an assignment or participation in any Facility.
Notwithstanding the Lead Arrangers’ right to syndicate the Facilities and receive commitments with respect thereto, (i) no Initial Lender shall be relieved, released or novated from its obligations hereunder (including its obligation to fund the Credit Facilities on the date of both the consummation of the Acquisition and the initial funding under the Initial Term Facilities (the date of such consummation and funding, the “Closing Date”)) in connection with any syndication, assignment or participation of the Facilities, including its commitments in respect of the Credit Facilities, until after the initial funding of the Credit Facilities on the Closing Date has occurred, (ii) no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Credit Facilities until after the initial funding of the Credit Facilities and (iii) unless you otherwise agree in writing, each Commitment Party shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Credit Facilities, including all rights with respect to consents, modifications, supplements, waivers and amendments, until the Closing Date has occurred.
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Without limiting your obligations to assist with the syndication efforts as set forth herein, it is understood that the Initial Lenders’ commitments hereunder are not conditioned upon the syndication of, or receipt of commitments in respect of, the Credit Facilities and in no event shall the commencement or successful completion of syndication of the Credit Facilities constitute a condition to the effectiveness of the Credit Facilities Documentation on the Closing Date or the availability or funding of the Credit Facilities on the Closing Date. The Lead Arrangers may commence syndication efforts promptly (taking into account the expected timing of the Acquisition) after your acceptance of this Commitment Letter and as part of their syndication efforts, it is their intent to have Lenders commit to the Facilities prior to the Closing Date (subject to the limitations set forth in the preceding paragraph). Until the earlier of (i) the date upon which a Successful Syndication (as defined in the Fee Letter referred to below) of the applicable Facilities is achieved and (ii) the 30th day following the Closing Date (such earlier date, the “Syndication Date”), you agree actively to assist the Lead Arrangers in completing a timely syndication that is reasonably satisfactory to us and you. Such assistance shall include, without limitation, (a) your using commercially reasonable efforts to ensure that any syndication efforts benefit materially from your existing lending and investment banking relationships and the existing lending and investment banking relationships of Silver Lake and, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the Target’s and its subsidiaries’ existing lending and investment banking relationships, (b) direct contact between senior management, certain representatives and certain advisors of you and Silver Lake, on the one hand, and the proposed Lenders, on the other hand (and your using commercially reasonable efforts to arrange, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, such contact between senior management, certain representatives or certain advisors of the Target and its subsidiaries, on the one hand, and the proposed Lenders, on the other hand), in all such cases at times and locations to be mutually agreed upon, (c) your and Silver Lake’s assistance (including the use of commercially reasonable efforts to cause, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the Target and its subsidiaries to assist) in the preparation of the Information Materials (as defined below) and other customary marketing materials to be used in connection with the syndication, (d) using your commercially reasonable efforts to procure, at your expense, prior to the launch of the general syndication of the Facilities, public ratings for the Initial Term B Facility from at least two of S&P Global Ratings (“S&P”), Moody’s Investors Service, Inc. (“Moody’s”) and Fitch Ratings Inc. (“Fitch”), and a public corporate credit rating and a public corporate family rating in respect of the Borrower after giving effect to the Transactions from each of S&P and Moody’s, respectively, (e) the hosting, with the Lead Arrangers, of a reasonable number of meetings to be mutually agreed upon of prospective Lenders at times and locations to be mutually agreed upon (and your using commercially reasonable efforts to cause, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the relevant senior officers of the Target to be available for such meetings), (f) your using commercially reasonable efforts to obtain the Margin Loan Facility on terms no less favorable to the Margin Loan Borrower under the Margin Loan Facility, in any respect, than those set forth in Exhibit C and (g) ensuring there being no competing issues, offerings, placements, arrangements or syndications of debt securities or syndicated commercial bank or other syndicated credit facilities by or on behalf of you or any of your subsidiaries, and after using your commercially reasonable efforts, to the extent practical, appropriate and reasonable and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the Target or any of its subsidiaries, being offered, placed or arranged (other than (A) the Facilities and (B) any indebtedness of the Target and its subsidiaries permitted to be incurred or to remain outstanding on the Closing Date under the Acquisition Agreement (including, for the avoidance of doubt, indebtedness in respect of that certain First Lien Credit Agreement, dated as of August 18, 2016 (as amended, supplemented or otherwise modified from time to
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time, the “Existing Tiger Credit Agreement”), by and among Zuffa Guarantor, LLC (“Tiger Holdings”), UFC Holdings, LLC, as the borrower, the lenders from time to time party thereto and Goldman Sachs Bank USA, as administrative agent, collateral agent, swingline lender and issuing bank) without the written consent of the Required Lead Arrangers (such consent not to be unreasonably withheld or delayed), if such issuance, offering, placement or arrangement would materially and adversely impair the primary syndication of the Initial Term Facilities (it is understood that the Target’s and its subsidiaries’ deferred purchase price obligations, ordinary course working capital facilities, ordinary course capital lease, or purchase money and equipment financings (any such debt, “Ordinary Course Indebtedness”) will not be deemed to materially and adversely impair the primary syndication of the Initial Term Facilities). Notwithstanding anything to the contrary contained in this Commitment Letter, the Fee Letter, the Coordination Agreement or any other letter agreement or undertaking concerning the financing of the Transactions to the contrary, none of the obtaining of the public ratings referenced above, the obtaining of the Margin Loan Facility referenced above, any Preferred Equity Issuance referenced in this Commitment Letter or the compliance with any of the other provisions set forth in this paragraph, including in any of clauses (a) through (g) above or the next succeeding paragraph, shall constitute a condition to the commitments hereunder or the funding of the Credit Facilities on the Closing Date.
The Lead Arrangers, in their capacities as such, will manage, in consultation with you, all aspects of any syndication of the Facilities, including decisions as to the selection of institutions reasonably acceptable to you (your consent not to be unreasonably withheld or delayed) to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate (subject to your consent rights set forth in the third preceding paragraph and your rights of appointment set forth in the fourth preceding paragraph and excluding Disqualified Lenders), the allocation of the commitments among the Lenders and the amount and distribution of fees among the Lenders. To assist the Lead Arrangers in their syndication efforts, you agree to promptly prepare and provide (and to cause Silver Lake to provide and to use commercially reasonable efforts to cause, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the Target and its subsidiaries to provide) to the Lead Arrangers customary information with respect to Holdings, the Borrower, the Target and their respective subsidiaries and the Transactions set forth in clause (c) of the immediately preceding paragraph, the historical financial information set forth in paragraph 5 of Exhibit D hereto and customary financial estimates, forecasts and other projections (such estimates, forecasts and other projections delivered to us by you, the “Projections”). For the avoidance of doubt, 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 binding upon (so long as such obligations are not entered into in contemplation of this Commitment Letter), or waive any privilege that may be asserted by, you, the Target or any of your or their respective subsidiaries or affiliates (in which case you agree to use commercially reasonable efforts to have any such confidentiality obligation waived, and otherwise in all instances, to the extent practicable and not prohibited by applicable law, rule or regulation, promptly notify us that information is being withheld pursuant to this sentence). Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided to the Commitment Parties in connection with the syndication of the Facilities shall be those required to be delivered pursuant to paragraph 5 of Exhibit D hereto.
You hereby acknowledge that (a) the Lead Arrangers will make available Projections and other customary marketing material and presentations, including a customary confidential information memoranda to be used in connection with the syndication of the Facilities (the “Information Memorandum”) (such Projections, other marketing material and the Information Memorandum, collectively, with the Term Sheet, the “Information Materials”) on a confidential basis to the proposed syndicate of Lenders by posting the Information Materials on Intralinks, Debt X, SyndTrak Online or by similar electronic means and (b) certain of the Lenders may be “public side” Lenders (i.e., Lenders that wish to receive only information that (i) is publicly available, (ii) is not material with respect to you,
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Holdings, the Borrower, the Target or your or their respective subsidiaries or securities for purposes of United States federal and state securities laws or (iii) constitutes information of the type that is included by the Target or its subsidiaries in any filings with the Securities and Exchange Commission (the “SEC”) or that would be included in such filings if you, Holdings, the Borrower or your or their respective subsidiaries were public reporting companies (as reasonably determined by you) (collectively, the “Public Side Information”; any information that is not Public Side Information, “Private Side Information”)) and who may be engaged in investment and other market related activities with respect to you or the Target or your or the Target’s respective subsidiaries or securities) (each, a “Public Sider” and each Lender that is not a Public Sider, a “Private Sider”). You will be solely responsible for the contents of the Information Materials and each of the Commitment Parties shall be entitled to use and rely upon the information contained therein without responsibility for independent verification thereof.
You agree to assist (and to cause Silver Lake to assist and to use commercially reasonable efforts to cause, to the extent practical and appropriate and in all instances subject to the limitations on your rights set forth in the Acquisition Agreement, the Target to assist) us in preparing an additional version of the Information Materials to be used in connection with the syndication of the Facilities that consists exclusively of Public Side Information with respect to you or the Target or your or the Target’s respective subsidiaries or securities to Public Siders. It is understood that in connection with your assistance described above, customary authorization letters executed and delivered by you or the Target (which shall include a customary negative assurance representation) will be included in any Information Materials that authorize the distribution thereof to prospective Lenders, represent that the additional version of the Information Materials does not include any Private Side Information (other than information about the Transactions or the Facilities) and exculpate you, the Investors (as defined below), the Target, the Borrower and us and our affiliates with respect to any liability related to the use of the contents of the Information Materials or related marketing materials by the recipients thereof. Before distribution of any Information Materials you agree, at our reasonable request, to identify that portion of the Information Materials that may be distributed to the Public Siders as “Public Information”, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof. By marking Information Materials as “PUBLIC”, you shall be deemed to have authorized the Commitment Parties and the proposed Lenders to treat such Information Materials as not containing any Private Side Information (it being understood that you shall not be under any obligation to mark the Information Materials “PUBLIC”). We will not make any materials not marked “PUBLIC” available to Public Siders.
You acknowledge and agree that, subject to the confidentiality and other provisions of this Commitment Letter, the following documents, without limitation, may be distributed to both Private Siders and Public Siders, unless you advise the Lead Arrangers in writing (including by email) within a reasonable time prior to their intended distribution that such materials should only be distributed to Private Siders (provided that such materials have been provided to you and your counsel for review a reasonable period of time prior thereto): (a) administrative materials prepared by the Lead Arrangers for prospective Lenders (such as a lender meeting invitation, bank allocation, if any, and funding and closing memoranda), (b) term sheets and notification of changes in the Facilities’ terms and conditions, (c) drafts and final versions of the Credit Facilities Documentation and (d) financial statements of the Borrower, and its respective subsidiaries of a type that would be publicly filed if the Borrower, or its respective subsidiaries were public reporting companies and publicly filed financial statements of the Target and its subsidiaries. If you advise us in writing (including by email), within a reasonable period of time prior to dissemination, that any of the foregoing should be distributed only to Private Siders, then Public Siders will not receive such materials without your prior consent.
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| 4. | Information. |
You hereby represent and warrant that (a) all written information and written data (such information and data, other than (i) the Projections and (ii) information of a general economic or industry specific nature, the “Information”) (in the case of Information regarding the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge), that has been or will be made available to the Commitment Parties directly or indirectly by you, the Target or by any of your or its subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby, when taken as a whole and together with the reports and other information filed by the Target or any of its subsidiaries with the SEC (including the risk factors therein), is or will be, when furnished, correct in all material respects and does not or will not, when furnished and when taken as a whole, 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 (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections that have been or will be made available to the Commitment Parties by you or by any of your subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby have been, or will be, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so furnished to the Commitment Parties; it being understood that the Projections are as to future events and are not to be viewed as facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that, if at any time prior to the later of the Closing Date and the Syndication Date, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations and warranties were being made, at such time, then you will (or, with respect to the Information and Projections relating to the Target and its subsidiaries, will use commercially reasonable efforts to) promptly supplement the Information and the Projections such that such representations and warranties are correct in all material respects under those circumstances (or, in the case of the Information relating to the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge, such representations and warranties are correct in all material respects under those circumstances). In arranging and syndicating the Facilities, the Lead Arrangers (i) will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof and (ii) assume no responsibility for the accuracy or completeness of the Information or the Projections.
| 5. | Fees. |
As consideration for the commitments of the Initial Lenders hereunder and for the agreement of the Lead Arrangers and the Joint Bookrunners to perform the services described herein, you agree to pay (or cause to be paid) the fees set forth in the Term Sheets and in the Amended and Restated Fee Letter and each Structuring Fee Letter dated the Original Signing Date and delivered herewith with respect to the Facilities (the “Fee Letter”), if and to the extent payable. Once paid, such fees shall not be refundable under any circumstances, except as expressly set forth herein or therein or as otherwise separately agreed to in writing by you and us.
| 6. | Conditions. |
The commitments of the Initial Lenders hereunder to fund the Credit Facilities on the Closing Date and the agreements of the Lead Arrangers and the Joint Bookrunners to perform the services described herein are subject solely to (a) the applicable conditions expressly set forth in the section
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entitled “Conditions to Initial Borrowing” in Exhibit B hereto and (b) the applicable conditions expressly set forth in Exhibit D hereto, and upon satisfaction (or waiver by the Commitment Parties) of such conditions, the Administrative Agent, each Lender and each other party thereto will execute and deliver the Credit Facilities Documentation (together with the Margin Loan Facility Documentation, the “Facilities Documentation”) to which it is a party and the initial funding of the Credit Facilities shall occur; it being understood that there are no other conditions (implied or otherwise) to the commitments hereunder, including compliance with the terms of this Commitment Letter, the Fee Letter, the Coordination Agreement and the Credit Facilities Documentation.
Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Coordination Agreement, the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties relating to you, Holdings, the Borrower or the Target or your or their respective subsidiaries or businesses or otherwise, the making and accuracy of which shall be a condition to the availability and funding of the Credit Facilities on the Closing Date shall be (a) such of the representations and warranties (if any) made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that you (or your affiliate) have the right (taking into account any applicable notice and cure provisions) to terminate your (and/or its) obligations under the Acquisition Agreement or decline to consummate the Acquisition or otherwise results in a failure of a condition precedent in the Acquisition Agreement (in each case, in accordance with the terms thereof) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and (b) the Specified Representations (as defined below) in all material respects; provided that any Specified Representations qualified by materiality shall be, as so qualified, accurate in all respects and (ii) the terms of the Credit Facilities Documentation shall be in a form such that they do not impair the availability or funding of the Credit Facilities on the Closing Date if the applicable conditions expressly set forth in the section entitled “Conditions to Initial Borrowing” in Exhibit B hereto and in Exhibit D hereto are satisfied (or waived by the Commitment Parties) (provided that, to the extent any security interest in any Collateral (as such term is defined in the Credit Facilities Term Sheet for purposes of this paragraph) is not or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities, if any, of the Borrower, the Target and any wholly owned U.S. material subsidiaries of the Borrower and the Target (to the extent required by the Credit Facilities Term Sheet) and (2) in other assets with respect to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code; provided that any such certificated equity securities of the Target and such subsidiaries of the Target will be required to be delivered on the Closing Date only to the extent such certificates are actually received from the Target) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Credit Facilities on the Closing Date, but instead shall be required to be delivered after the Closing Date pursuant to arrangements and timing to be mutually agreed by the Administrative Agent and the Borrower acting reasonably but no later than 90 days after the Closing Date (or such longer period as may be agreed by the Administrative Agent and the Borrower acting reasonably)). For purposes hereof, “Specified Representations” means, with respect to the Credit Facilities, the applicable representations and warranties of the Borrower and the Guarantors to be set forth in the Credit Facilities Documentation relating to organizational existence of the Borrower and the Guarantors party thereto as of the Closing Date; power and authority, due authorization, execution, delivery and enforceability, in each case, related to, the entering into, borrowing under, guaranteeing under, performance of, and granting of security interests in the Collateral pursuant to, the Credit Facilities Documentation; solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is determined in the solvency certificate to be delivered pursuant to Exhibit D);
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no violation of Federal Reserve margin regulations; the use of the proceeds of the Credit Facilities not violating the PATRIOT Act, OFAC or FCPA; the Investment Company Act; the incurrence of the loans to be made under such Credit Facilities, the provision of the Guarantees in respect of such Credit Facilities and the granting of the security interests in the Collateral to secure such Credit Facilities, and the entering into of the Credit Facilities Documentation on the Closing Date, do not conflict with the organizational documents of the Borrower or the Guarantors party thereto; and, subject to the provisos in clause (ii) of the immediately preceding sentence, creation, validity and perfection of security interests in the Collateral (as such term is defined in Exhibit B). For the avoidance of doubt, the representation set forth in paragraph 1 of Exhibit D shall not be a Specified Representation. This paragraph, and the provisions herein, shall be referred to as the “Limited Conditionality Provisions.”
| 7. | Limitation on Liability; Indemnity; Settlement. |
(a) Limitation on Liability.
Notwithstanding any other provision of this Commitment Letter, (i) in no event shall any Commitment Party, any of their respective affiliates or their respective officers, directors, employees, agents, controlling persons, advisors, attorneys or other representatives (each an “Arranger-Related Person”) be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of such Arranger-Related Person (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of you (or any of your subsidiaries), the Investors (or any of their respective affiliates), the Target (or any of its subsidiaries or affiliates) or any Arranger-Related Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letter, the Coordination Agreement, the Transactions (including the Facilities and the use of proceeds thereunder), or with respect to any activities related to the Facilities, including the preparation of this Commitment Letter, the Fee Letter, the Coordination Agreement and the Facilities Documentation; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party with respect to which the applicable Indemnified Party is entitled to indemnification under subsection (b) of this Section 7.
(b) Indemnity.
To induce the Commitment Parties to enter into this Commitment Letter and the Fee Letter and to proceed with the Facilities Documentation, you agree (a) to indemnify and hold harmless each Commitment Party, its respective affiliates and the respective officers, directors, employees, agents, controlling persons, advisors, attorneys and other representatives of each of the foregoing and their successors and permitted assigns (other than Lenders that are not Initial Lenders) (each, an “Indemnified Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable and documented or invoiced out-of-pocket fees and expenses, joint or several, to which any such Indemnified Person may become subject to the extent arising out of, resulting from, or in connection with any actual or threatened claim, litigation, investigation or proceeding (including any inquiry or investigation) in connection with the Original Commitment Letter, the First A&R Commitment Letter, the Second A&R Commitment Letter, this Commitment Letter (including the Term Sheet), the Original Fee Letter (as defined in the Fee Letter), the Fee Letter, the Coordination Agreement, the Transactions or any related transaction contemplated hereby or thereby, the Facilities or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates or creditors or any
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other third person, and to promptly reimburse after receipt of a written request, each such Indemnified Person for any reasonable and documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all such Indemnified Persons, taken as a whole and, if necessary, by a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such 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 notifies you of the existence of such conflict and thereafter retains its own counsel, by another firm of counsel for such affected Indemnified Person) or other reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to, or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as defined below) (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any Related Indemnified Person under this Commitment Letter, the Fee Letter or the Coordination Agreement (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding solely between or among Indemnified Persons not arising from any act or omission by you or any of your affiliates; provided that the Administrative Agent, the Lead Arrangers and the Joint Bookrunners to the extent fulfilling their respective roles as an agent or arranger under the Facilities and in their capacities as such, shall remain indemnified in such Proceedings to the extent that none of the exceptions set forth in any of clauses (i) or (ii) of the immediately preceding proviso apply to such person at such time and (b) to the extent that the Closing Date occurs, to reimburse each Commitment Party from time to time, upon presentation of a summary statement, for all reasonable and documented or invoiced out-of-pocket expenses (including but not limited to expenses of each Commitment Party’s consultants’ fees (to the extent any such consultant has been retained with your prior written consent (not to be unreasonably withheld or delayed)), syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel to the Commitment Parties, the Lead Arrangers, the Joint Bookrunners and the Administrative Agent identified in the Credit Facilities Term Sheet (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, of another firm of counsel for such affected Indemnified Person), and, if necessary, of a single firm of local counsel to the Commitment Parties in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) and of such other counsel retained with your prior written consent (not to be unreasonably withheld or delayed)), in each case incurred in connection with the Facilities and the preparation, negotiation and enforcement of the Original Commitment Letter, the First A&R Commitment Letter, the Second A&R Commitment Letter, this Commitment Letter, the Original Fee Letter (as defined in the Fee Letter), the Fee Letter, the Coordination Agreement, the Facilities Documentation and any security arrangements in connection therewith (collectively, the “Expenses”). You acknowledge that we may receive a future benefit on matters unrelated to this matter, including, without limitation, discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us, including without limitation fees paid pursuant hereto (it being understood and agreed that, in no event, shall the Expenses include items in respect of any unrelated matter or otherwise be increased as a result of such counsel’s representation of us on another matter or on account of our relationship with such counsel). The foregoing provisions in this paragraph shall be superseded, in each case, to the extent covered thereby by the applicable provisions contained in the Facilities Documentation upon execution and delivery thereof and thereafter shall have no further force and effect.
“Related Indemnified Person” of an Indemnified Person means (1) any controlling person or any affiliate of such Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or any of its affiliates and (3) the respective agents,
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advisors, attorneys and representatives of such Indemnified Person or any of its controlling persons or any of its affiliates, in the case of this clause (3), acting at the instructions of such Indemnified Person, controlling person or such affiliate (it being understood and agreed that any agent, advisor or representative of such Indemnified Person or any of its controlling persons or any of its affiliates engaged to represent or otherwise advise such Indemnified Person, controlling person or affiliate in connection with the Transactions shall be deemed to be acting at the instruction of such person).
(c) Settlement.
You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 7. It is further agreed that the Commitment Parties shall be severally liable in respect of their commitments to the Facilities, on a several, and not joint basis with any other Lender.
You shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed) (it being understood that the withholding of consent due to non-satisfaction of any of the conditions described in clauses (i), (ii) and (iii) of this sentence shall be deemed reasonable), 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 (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings, (ii) does not include any statement as to or any admission of fault, culpability, wrong doing or a failure to act by or on behalf of any Indemnified Person and (iii) contains customary confidentiality provisions with respect to the terms of such settlement. Each Indemnified Person shall be severally obligated to refund or return any and all amounts paid by you under this Section 7 to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
| 8. | Sharing of Information, Absence of Fiduciary Relationships, Affiliate Activities. |
As you know, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, an affiliate of MSSF, BofA Securities, Goldman Sachs & Co. LLC, Barclays Capital Inc., DB and RBC Capital Markets LLC have each been retained by Buyer (or one of its affiliates) as financial advisor (each in such capacity, a “Financial Advisor”) in connection with the Acquisition. You acknowledge 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 the engagement of each Financial Advisor, on the one hand, and such Commitment Party’s or its affiliates’ relationships with you as described and referred to herein, on the other. Each of the Commitment Parties hereto acknowledges (i) the retention of each Financial Advisor and (ii) that such relationship does not create any fiduciary duties or fiduciary responsibilities to such Commitment Party on the part of any Financial Advisor or its affiliates.
You acknowledge that the Commitment Parties and their respective affiliates may be providing debt financing, equity capital or other services (including, without limitation, financial advisory services) to other persons in respect of which you, the Investors, the Target and your and their respective subsidiaries and affiliates may have conflicting interests regarding the transactions described herein and otherwise. The Commitment Parties and their respective affiliates will not use confidential information
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obtained from you, the Target or any of your or their respective subsidiaries or affiliates by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you, the Target or any of your or their respective subsidiaries or affiliates in connection with the performance by them or their affiliates of services for other persons, and the Commitment Parties and their respective affiliates will not furnish any such information to other persons, except to the extent permitted below. You also acknowledge that the Commitment Parties and their respective affiliates do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, the Target or any of your or their respective subsidiaries or affiliates confidential information obtained by them from other persons.
As you know, the Commitment Parties and their respective affiliates may be full-service securities firms engaged, either directly or through their affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, the Commitment Parties and their respective affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of you (and your affiliates), the Target (and its affiliates), the Target’s and your respective customers or competitors and other companies which may be the subject of the arrangements contemplated by this Commitment Letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities. The Commitment Parties and their respective affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you (and your affiliates), the Borrower, the Target (and its affiliates) or other companies which may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities or other trading with any thereof.
The Commitment Parties and their respective affiliates may have economic interests that conflict with those of the Target, you and the Borrower and your and their respective subsidiaries and affiliates and are under no obligation to disclose any conflicting interest to you, the Target and the Borrower and your and their respective subsidiaries and affiliates. You agree that each Commitment Party will act under this Commitment Letter as an independent contractor and that nothing in this Commitment Letter or the Fee Letter will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between such Commitment Party and its respective affiliates, on the one hand, and you, the Borrower and the Target, your and their respective equity holders or your and their respective subsidiaries and affiliates, on the other hand. You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letter are arm’s-length commercial transactions between the Commitment Parties and their respective affiliates, on the one hand, and you, on the other, (ii) in connection therewith and with the process leading to such transaction each Commitment Party and its applicable affiliates (as the case may be) are acting solely as principals and not as agents or fiduciaries of you, the Borrower, the Target, your and their respective management, equity holders, creditors, subsidiaries, affiliates or any other person, (iii) each Commitment Party and its applicable affiliates (as the case may be) have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you, the Target, the Borrower or your or their respective affiliates with respect to the financing transactions contemplated hereby, the exercise of the remedies with respect thereto or the process leading thereto (irrespective of whether such Commitment Party or any of its affiliates has advised or is currently advising you, the Borrower, or the Target or any of your or their respective affiliates on other matters) and no Commitment Party has any obligation to you, the Target, the Borrower or your or their respective affiliates with respect to the transactions contemplated hereby except the obligations expressly set forth in this Commitment Letter, the Fee Letter and the Coordination Agreement and (iv) the Commitment Parties and their respective affiliates have not provided any legal, accounting, regulatory or tax advice and you have consulted your own legal and financial advisors to the extent you deemed appropriate.
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You further acknowledge and agree that you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto. You agree that you will not claim that the Commitment Parties or their applicable affiliates, as the case may be, have rendered advisory services of any nature or respect, or owe a fiduciary, agency or similar duty to you or your affiliates, in connection with such transactions or the process leading thereto.
Furthermore, without limiting any provision set forth herein, you agree not to assert, to the fullest extent permitted by law, any claims you may have with respect to such transactions or the process leading thereto against us or our affiliates for alleged breach of fiduciary duty and agree that we and our affiliates shall have no liability (whether direct or indirect) to you in respect of such a fiduciary claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your equityholders, employees or creditors.
| 9. | Confidentiality. |
You agree that you will not disclose, directly or indirectly, the Fee Letter or the contents thereof or, prior to your acceptance hereof, this Commitment Letter, the Term Sheet, the other exhibits and attachments hereto or the contents of each thereof, or the activities of any Commitment Party pursuant hereto or thereto, to any person or entity without the prior written approval of the Lead Arrangers (such approval not to be unreasonably withheld, delayed or conditioned), except (a) to the Investors and to any of your or the Investors’ affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors, controlling persons and equity holders and to actual and potential co-investors who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Commitment Parties consent in writing to such proposed disclosure or (c) pursuant to an order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof prior to disclosure); provided that (i) you may disclose this Commitment Letter (but not the Fee Letter or the contents thereof) and the contents hereof to the Target, its subsidiaries and affiliates and its and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter and its contents (including the Term Sheets and other exhibits and attachments hereto) (but not the Fee Letter or the contents thereof) in any syndication or other marketing materials in connection with the Facilities (including the Information Materials) or in connection with any public or regulatory filing requirement relating to the Transactions, (iii) you may disclose the Term Sheets and other exhibits and attachments to the Commitment Letter, and the contents thereof, to potential Lenders, the issuer, the custodian and the transfer agent in connection with the Margin Loan Facility and to rating agencies in connection with obtaining public ratings for the Borrower and the Initial Term B Facility, (iv) you may disclose the aggregate fee amount contained in the Fee Letter as part of 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 marketing materials for the Facilities or in any public or regulatory filing requirement relating to the Transactions (and only to the extent aggregated with all other fees and expenses of the Transactions and not presented as an individual line item unless required by applicable law, rule or regulation) and (v) if the fee amounts payable pursuant to the Fee Letter and the economic terms of the “Market Flex Provisions” in the Fee Letter, and such other portions as mutually agreed, have been redacted in a manner reasonably agreed by us (including the portions thereof addressing fees payable to the Commitment Parties and/or the Lenders),
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you may disclose the Fee Letter and the contents thereof to the Target, its subsidiaries and affiliates and its and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis.
Each Commitment Party and its affiliates will use all non-public information provided to any of them or such affiliates by or on behalf of you hereunder or in connection with the Acquisition and the related Transactions solely for the purpose of providing the services which are the subject of this Commitment Letter and negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided that nothing herein shall prevent such Commitment Party and its affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process based on the reasonable advice of counsel (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction, or purporting to have jurisdiction, over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party or any of its Related Parties (as defined below) in violation of any confidentiality obligations owing to you, the Investors, the Borrower, the Target or any of your or their respective subsidiaries and affiliates, (d) to the extent that such information is or was received by such Commitment Party or any of its Related Parties from a third party that is not, to such Commitment Party’s knowledge, subject to contractual or fiduciary confidentiality obligations owing to you, the Investors, the Target or any of your or their respective subsidiaries and affiliates, (e) to the extent that such information is independently developed by such Commitment Party or any of its Related Parties without the use of any confidential information, (f) to such Commitment Party’s affiliates and to its and their respective employees, officers, directors, legal counsel, independent auditors, rating agencies, professionals and other experts or agents who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations and who have been advised of their obligation to keep information of this type confidential (with each such Commitment Party, to the extent within its control, responsible for such person’s compliance with this paragraph) (the persons identified in this clause (f), collectively, the “Related Parties”), (g) to potential or prospective Lenders, hedge providers, participants or assignees, (h) to the extent you consent in writing to any specific disclosure or (i) to the extent such information was already in such Commitment Party’s possession prior to any duty or other understanding of confidentiality entered into in connection with the Transactions; provided that for purposes of clause (g) above, (i) the disclosure of any such information to any Lenders, hedge providers, participants or assignees or prospective Lenders, hedge providers, participants or assignees referred to above shall be made subject to the acknowledgment and acceptance by such Lender, hedge provider, participant or assignee or prospective Lender, hedge provider, participant or assignee 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 such Commitment Party, including, without limitation, as agreed in any Information Materials or other marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information, which shall in any event require “click through” or other affirmative actions on the part of recipient to access such information and (ii) no such disclosure shall be made by such Commitment Party to any person that is at such time a Disqualified Lender. In
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addition, each Commitment Party may disclose the existence of the Facilities and the information about the Facilities to market data collectors, similar services providers to the lending industry, and service providers to the Commitment Parties in connection with the administration and management of the Facilities. In the event that the Facilities are funded, the Commitment Parties’ and their respective affiliates’, if any, obligations under this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the Facilities Documentation upon the initial funding thereunder to the extent that such provisions are binding on such Commitment Parties.
Subject to the immediately preceding sentence, the confidentiality provisions set forth in this Section 9 shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the Original Signing Date.
Notwithstanding anything to the contrary contained herein, the confidentiality provisions of the Original Commitment Letter, the First A&R Commitment Letter and the Second A&R Commitment Letter shall remain in full force and effect with respect to the Original Commitment Letter, the First A&R Commitment Letter, the Second A&R Commitment Letter and the Original Fee Letter (as defined in the Fee Letter) in accordance with the terms of the Original Commitment Letter, the First A&R Commitment Letter and the Second A&R Commitment Letter, as applicable.
| 10. | Miscellaneous. |
This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (other than (i) any assignment occurring as a matter of law pursuant to, or otherwise substantially simultaneously with, the Acquisition on the Closing Date, in each case to the Target, Merger Sub or the Borrower, (ii) by you to (a) Target, Merger Sub or the Borrower substantially simultaneously with the Acquisition on the Closing Date or (b) a U.S. domestically organized entity, in each case, so long as such entity is, or will be, controlled by you or the Investors after giving effect to the Transactions and shall (directly or indirectly through one or more wholly-owned subsidiaries) own the Target and the Borrower and agrees to be bound by the terms hereof and of the Fee Letter and the Coordination Agreement, (iii) subject to the second paragraph of Section 3, by the Initial Lenders in connection with the syndication of the Credit Facilities) without the prior written consent of each other party hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent shall be null and void) or (iv) by Goldman Sachs to Goldman Sachs Lending Partners LLC (“GSLP”) without the consent of any party hereto). This Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons and Arranger-Related Persons) and do not and are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons and Arranger-Related Persons to the extent expressly set forth herein) and, for the avoidance of doubt, no Commitment Party may enter into any other agreements or arrangement to share any economics provided in the Commitment Letter or Fee Letter with any other parties (other than any agreement or arrangement with an affiliate of such Commitment Party as permitted hereunder or under the Fee Letter). Subject to the limitations set forth in Section 3 above, each Commitment Party reserves the right to employ the services of its respective affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to their affiliates or branches certain fees payable to such Commitment Party in such manner as such Commitment Party and its respective affiliates or branches may agree in their sole discretion and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of, such Commitment Party hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature
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page of this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof. Electronic transmission shall be deemed to include any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record (“Electronic Signatures”), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. This Commitment Letter (including the exhibits hereto), together with the Fee Letter, the Coordination Agreement and any other letter agreement entered into with any of the Commitment Parties on or prior to the Original Signing Date, (i) are the only agreements that have been entered into among the parties hereto with respect to our commitments with respect to the Facilities and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Facilities and sets forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER, OR RELATED TO, THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided that, notwithstanding the foregoing, it is understood and agreed that (a) the interpretation of the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) (and whether or not a Material Adverse Effect has occurred), (b) the determination of the accuracy of any Specified Acquisition Agreement Representation and whether as a result of any inaccuracy thereof you (or your affiliate) have the right (taking into account any applicable cure provisions) to terminate your obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, in each case shall be governed by, and construed in accordance with, the laws of the State of Delaware as applied to the Acquisition Agreement, without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware.
Any Joint Bookrunner 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 it may choose, and circulate similar promotional materials, in each case, after the Closing Date, in the form of “tombstone” or otherwise describing the name of the Borrower and the amount, type and closing date of the Transactions, all at the expense of such Joint Bookrunner.
Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Facilities Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the commitments provided hereunder are subject solely to conditions precedent described in the first paragraph of Section 6 of this Commitment Letter.
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 COORDINATION AGREEMENT OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
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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 New York County in the State of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter, the Coordination Agreement or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined 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, the Coordination Agreement or the transactions contemplated hereby or thereby in any New York State or in any such 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 suit, 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. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.
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 of us and each of the Lenders may be required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information may include their names, addresses, tax identification numbers and other information that will allow each of us and the Lenders to identify the Borrower, the Target, Holdings and the other Guarantors in accordance with the PATRIOT Act or the Beneficial Ownership Regulation, as applicable. This notice is given in accordance with the requirements of the PATRIOT Act and is effective for each of us and the Lenders. You hereby acknowledge and agree that the Lead Arrangers shall be permitted to share any and all such information with the Lenders.
The indemnification, compensation (if applicable), reimbursement (if applicable), syndication, jurisdiction, governing law, venue, waiver of jury trial and confidentiality 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 regardless of whether Facilities Documentation shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or the Initial Lenders’ commitments hereunder; provided that your obligations under this Commitment Letter (except as specifically set forth in the third through seventh paragraphs of Section 3 and the penultimate sentence of Section 4, and other than your obligations with respect to the confidentiality of the Fee Letter and the contents thereof) shall automatically terminate and be superseded by the provisions of the applicable Facilities Documentation (to the extent covered therein) 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 any of the Facilities (or any portion thereof) hereunder at any time subject to the provisions of the preceding sentence (any such commitment termination shall reduce the commitments of each Initial Lender on a pro rata basis based on their respective commitments to the relevant Facility as of the date hereof); provided, that (i) in the event that one or more of the asset sales disclosed to the Lead Arrangers prior to the Original Signing Date (the “Specified Asset Sales”) are consummated prior to the Closing Date, the commitments of the Initial Lenders in respect of the Initial Term A Facility shall be reduced in an amount equal to (a) the Net Proceeds (as such term is defined in the Existing Wildcat Credit Agreement) of such Specified Asset Sales less (b) to the extent that any or all of the Net Proceeds of the Target are prohibited or delayed beyond the Closing Date by any requirement of law or contract from being repatriated or distributed to the Target, an amount equal to the portion of such Net Proceeds so affected (it being understood that, after
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the Closing Date, the provisions in the Credit Facilities Documentation with respect to mandatory prepayments with the Net Proceeds of asset sales shall apply to such affected Net Proceeds) (with such reduction to be on a pro rata basis among the Initial Lenders) and (ii) any other reductions of the Initial Lenders’ commitments in respect of the Initial Term A Facility shall be on a pro rata or greater than pro rata basis with any reductions of commitments in respect of the Initial Term B Facility.
Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letter by returning to the Commitment Parties (or their legal counsel on behalf of the Commitment Parties), executed counterparts hereof and of the Fee Letter not later than 11:59 p.m., New York City time, on December 16, 2024. The Initial Lenders’ respective commitments and the obligations of the Commitment Parties hereunder will expire at such time in the event that the Commitment Parties (or their legal counsel) have not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter and the Fee Letter at or prior to such time, we agree to hold our commitment to provide the Credit Facilities and our other undertakings in connection with the Facilities available for you until the earliest of (i) after execution and delivery of the Acquisition Agreement and prior to the consummation of the Transactions, the termination of the Acquisition Agreement by you in a signed writing in accordance with its terms, (ii) the consummation of the Acquisition without the funding of the Credit Facilities and (iii) 11:59 p.m., New York City time on the date that is five business days after the Outside Date (as defined in the Acquisition Agreement as in effect as of the Original Signing Date, but without giving effect to any extensions pursuant thereto) (such earliest time, the “Expiration Date”). Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitments of the Commitment Parties hereunder and the agreement of the Commitment Parties to provide the services described herein shall automatically terminate unless the Commitment Parties shall, in their sole discretion, agree to an extension in writing. The termination of any commitment pursuant to this paragraph will not prejudice your rights and remedies in respect of any breach or repudiation of this Commitment Letter.
[Remainder of this page intentionally left blank]
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We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||
| JPMORGAN CHASE BANK, N.A. | ||
| By: | /s/ Inderjeet Aneja | |
| Name: Inderjeet Aneja | ||
| Title: Executive Director | ||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||
| MORGAN STANLEY SENIOR FUNDING, INC. | ||
| By: | /s/ Andrew Earls | |
| Name: Andrew Earls | ||
| Title: Vice President | ||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| BANK OF AMERICA, N.A. | ||||
| By: | /s/ Scott Tolchin | |||
| Name: | Scott Tolchin | |||
| Title: | Managing Director | |||
| BOFA SECURITIES, INC. | ||||
| By: | /s/ Scott Tolchin | |||
| Name: | Scott Tolchin | |||
| Title: | Managing Director | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| GOLDMAN SACHS BANK USA | ||||
| By: | /s/ Robert Ehudin | |||
| Name: | Robert Ehudin | |||
| Title: | Authorized Signatory | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| BARCLAYS BANK PLC | ||||
| By: | /s/ Jeremy Hazan | |||
| Name: | Jeremy Hazan | |||
| Title: | Managing Director | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| DEUTSCHE BANK AG NEW YORK BRANCH | ||||
| By: | /s/ Manfred Affenzeller | |||
| Name: | Manfred Affenzeller | |||
| Title: | Managing Director | |||
| By: | /s/ Ryan Corning | |||
| Name: | Ryan Corning | |||
| Title: | Managing Director | |||
| DEUTSCHE BANK SECURITIES INC. | ||||
| By: | /s/ Manfred Affenzeller | |||
| Name: | Manfred Affenzeller | |||
| Title: | Managing Director | |||
| By: | /s/ Ryan Corning | |||
| Name: | Ryan Corning | |||
| Title: | Managing Director | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| ROYAL BANK OF CANADA | ||||
| By: | /s/ Charles D. Smith | |||
| Name: | Charles D. Smith | |||
| Title: | Co-Head, U.S. Leveraged Finance | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||||
| By: | /s/ Nicholas Grocholski | |||
| Name: | Nicholas Grocholski | |||
| Title: | Managing Director | |||
| WELLS FARGO SECURITIES, LLC | ||||
| By: | /s/ Marc Birenbaum | |||
| Name: | Marc Birenbaum | |||
| Title: | Managing Director | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| CITIGROUP GLOBAL MARKETS INC. | ||||
| By: | /s/ Bechar Hamdan | |||
| Name: | Bechar Hamdan | |||
| Title: | Director | |||
[Signature Page to Project Wildcat Commitment Letter]
We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
| Very truly yours, | ||||
| HSBC BANK USA, NATIONAL ASSOCIATION | ||||
| By: | /s/ David Barth | |||
| Name: | David Barth | |||
| Title: | Managing Director | |||
| HSBC SECURITIES (USA) INC. | ||||
| By: | /s/ David Barth | |||
| Name: | David Barth | |||
| Title: | Managing Director | |||
[Signature Page to Project Wildcat Commitment Letter]
Accepted and agreed to as of
the date first above written:
| WILDCAT EGH HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., | |
| its general partner | ||
| By: | SILVER LAKE TECHNOLOGY | |
| ASSOCIATES VII, L.P., its managing member | ||
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | SILVER LAKE GROUP, L.L.C., its managing member | |
| By: | /s/ Egon Durban | |
| Name: | Egon Durban | |
| Title: | Co-CEO | |
[Signature Page to Project Wildcat Commitment Letter]
EXHIBIT A
Project Wildcat
Transaction Description
Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit A shall be determined by reference to the context in which it is used.
Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “Holdco Parent”) and Wildcat OpCo Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“OpCo Parent”), were formed at the direction of Silver Lake Partners and its affiliates (collectively, with the funds partnerships, co-investment entities and other investment vehicles managed, advised or controlled thereby or by one or more directors thereof or under common control therewith, “Silver Lake”) and the Preferred Investors (as defined below) (together with Silver Lake, the “Sponsors”). Pursuant to an Agreement and Plan of Merger, dated as of the Original Signing Date (together with all exhibits, schedules and other disclosure letters thereto, collectively, as amended, the “Acquisition Agreement”), by and among Holdco Parent, OpCo Parent, Wildcat PubCo Merger Sub, Inc., a corporation organized under the laws of the State of Delaware and wholly-owned subsidiary of Holdco Parent (“Company Merger Sub”), Wildcat OpCo Merger Sub, L.L.C., a limited liability company organized under the laws of the State of Delaware and wholly-owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Company Merger Sub, the “Merger Subs” and each, a “Merger Sub” and the Merger Subs, together with Holdco Parent and OpCo Parent, the “Buyer Entities”), a company previously identified to us and code-named “Wildcat” (the “Company” or the “Target”), and a subsidiary of the Company (the “OpCo” and, together with the Company, the “Company Entities” and each, a “Company Entity”), (i) Company Merger Sub will merge with and into the Target (the “Company Merger”), with the Target being the surviving entity of the Company Merger and (ii) OpCo Merger Sub will merge with and into the OpCo (the “OpCo Merger” and, together with the Company Merger, the “Mergers”), with the OpCo being the surviving entity of the OpCo Merger, whereby (A) Holdco Parent will acquire, directly or indirectly, the equity interests of the Company from the equity holders thereof (collectively, the “ Company Sellers”) and, indirectly, the equity interests of OpCo owned by the Company and (B) OpCo Parent will acquire certain equity interests of the OpCo from the equity holders thereof (collectively, the “OpCo Sellers” and, together with the Company Sellers, the “Sellers”). Other than certain Sellers who may be given the opportunity to retain, rollover or reinvest capital stock, restricted stock units, profits interests and/or options into the Company and/or OpCo (including certain members of the management of the Company and its subsidiaries) (the “Rollover Investors”), the Sellers will receive cash (the “Acquisition Consideration”) in exchange for their capital stock, restricted stock units, profits interests and/or options in the Company Entities. Immediately after giving effect to the Mergers and the other Transactions, the Company will be a wholly-owned direct subsidiary of Holdco Parent and OpCo will be owned, collectively, directly or indirectly, by the Rollover Investors, Holdco Parent and OpCo Parent.
In connection with the foregoing, it is intended that:
| a) | A newly formed corporation, limited liability company or limited partnership and indirect parent of Holdings established by Silver Lake will issue to the initial purchasers (the “Preferred Investors”) under that certain preferred equity commitment letter dated as of the Original Signing Date (the “Preferred Equity Commitment Letter”) newly issued shares of a class of preferred equity with an initial stated value of $1,000 per share (such shares the “Preferred Equity”) and in an aggregate initial stated value of up to $500 million (the “Preferred Equity Issuance”). |
| b) | The Sponsors and certain other investors (including certain Rollover Investors) arranged by and/or designated by the Sponsors (collectively with the Sponsors, the “Investors”) will directly or indirectly make cash equity contributions to the Buyer Entities (provided that any such contribution to Merger Sub in a form other than common equity shall be reasonably satisfactory to the Required Lead Arrangers and, provided, further that the Required Lead Arrangers confirm the terms of the Preferred Equity are satisfactory) (the foregoing cash equity contributions to the Buyer Entities (which, for the avoidance of doubt, shall include any Preferred Equity Issuance), collectively, the “Equity Contribution”), in an aggregate amount equal to, when combined with the fair market value of any capital stock or other equity interests of any of the Rollover Investors rolled over or invested in connection with the Transactions (as defined below) and the proceeds of any Preferred Equity Issuance, at least 35% of the sum of (1) the aggregate gross proceeds of the Facilities borrowed on the Closing Date, excluding the aggregate gross proceeds of (A) any Loans (as defined in Exhibit B to the Commitment Letter) to fund original issue discount and/or upfront fees in connection with the exercise of the “Market Flex Provisions” under the Fee Letter and (B) any Revolving Loans (as defined in Exhibit B to the Commitment Letter) to fund any working capital needs on the Closing Date and (2) the equity capitalization of the Borrower (as defined in Exhibit B to the Commitment Letter) and its subsidiaries on the Closing Date after giving effect to all of the Transactions (the “Minimum Equity Contribution”); provided that, if applicable, to the extent any stockholder or other equity holder of the Target has exercised appraisal rights in connection with the Transactions, then on the Closing Date the Investors may elect to issue one or more equity commitment letters and/or arrange for one or more letters of credit to be issued on their behalf in an aggregate amount not less than the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the shares or other equity interests subject to such appraisal rights (the “Appraisal Shares”) and, for purposes of this Commitment Letter, an aggregate amount of such equity commitment letters and/or letters of credit up to, but not in excess of, the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the Appraisal Shares shall be included in the amount and percentage of the Equity Contribution from and after the Closing Date as if such amount was funded in cash (with it being understood that, on or prior to the date of the final resolution of all such appraisal rights, the lesser of (a) the amount necessary to satisfy such appraisal rights in full and (b) an amount equal to the full amount committed under such equity commitment letters and/or the face value of any such letters of credit shall be funded, directly or indirectly, in cash to the Borrower in the form of common equity, or other equity on terms reasonably acceptable to the Required Lead Arrangers); provided, further that, the Sponsors will control a majority of the voting equity of Holdings as of the Closing Date. |
| c) | The Borrower will obtain (i) up to $4,250 million under a senior secured term loan A facility described in Exhibit B to the Commitment Letter (the “Initial Term A Facility”), (ii) up to $2,750 million under a senior secured term loan B facility described in Exhibit B to the Commitment Letter (the “Initial Term B Facility”), (iii) up to $250 million under a senior secured revolving credit facility described in Exhibit B to the Commitment Letter (the “Revolving Facility”) and (iv) up to $825 million under a senior secured 364-day term loan facility described in Exhibit B to the Commitment Letter (the “Margin Bridge Facility” and, collectively with the Initial Term A Facility and the Initial Term B Facility, the “Initial Term Facilities”; the Initial Term Facilities and the Revolving Facility, collectively, the “Credit Facilities”), which such Margin Bridge Facility shall be reduced by the aggregate principal amount of any loans funded under the Margin Loan Facility on the Closing Date. |
| d) | The Margin Loan Borrower will seek to obtain up to $1,500 million under a margin loan facility described in Exhibit C to the Commitment Letter (the “Margin Loan Facility” and, together with the Credit Facilities, the “Facilities”). |
| e) | All principal, accrued, but unpaid interest, fees and other amounts (other than contingent obligations not then due and payable) outstanding on the Closing Date under the First Lien Credit Agreement, dated as of May 6, 2014 (as amended and restated by Amendment No. 5, dated as of May 18, 2018, and as further amended, supplemented or otherwise modified from time to time, the “Existing Wildcat Credit Agreement” and, together with the Existing Tiger Credit Agreement, the “Existing Credit Agreements”), by and among the WME IMG Holdings, LLC, William Morris Endeavor Entertainment, LLC, as borrower, IMG Worldwide Holdings, LLC, as co-borrower, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the other parties thereto shall be repaid in full in connection with, and substantially concurrently with the closing of, the Transactions, and all commitments to lend and guarantees and security in connection therewith shall have been terminated and/or released or customary arrangements for such termination and/or release have been agreed upon with the administrative agent (the “Refinancing”). |
| f) | The proceeds of the Equity Contribution (including any Preferred Equity Issuance), the Facilities and/or a portion of the cash on hand at the Target and its subsidiaries on the Closing Date will be applied to pay (i) the Acquisition Consideration, (ii) for the Refinancing and (iii) the fees and expenses incurred in connection with the Transactions (such fees and expenses, the “Transaction Costs”, and the amounts set forth in clauses (i) through (iii) above, collectively, the “Acquisition Funds”). |
The transactions described above (including the payment of Transaction Costs) are collectively referred to herein as the “Transactions.”
EXHIBIT B
Project Wildcat
Credit Facilities
Summary of Principal Terms and Conditions2
| Borrower: | A newly formed limited liability company organized under the laws of the United States or any state thereof and an indirect subsidiary of the Target. | |
| Transactions: | As set forth in Exhibit A to the Commitment Letter. | |
| Administrative Agent and Collateral Agent: | JPM will act as sole administrative agent and sole collateral agent (in such capacities, the “Administrative Agent”) for a syndicate of banks, financial institutions and other institutional lenders and investors reasonably acceptable to the Lead Arrangers and the Borrower, excluding any Disqualified Lender (together with the Initial Lenders, the “Lenders”), and will perform the duties customarily associated with such roles. | |
| Lead Arrangers and Joint Bookrunners: | Each of JPM, MSSF, BofA Securities, Goldman Sachs, Barclays, DB, RBCCM, Wells Fargo Securities, Citi and HSBC Securities will act as a lead arranger (each in such capacity, a “Lead Arranger” and, together, the “Lead Arrangers”), and each of JPM, MSSF, BofA Securities, Goldman Sachs, Barclays, DB, RBCCM, Wells Fargo Securities, Citi and HSBC Securities will act as a bookrunner (each in such capacity, a “Joint Bookrunner” and, together, the “Joint Bookrunners”), in each case for the Credit Facilities, and each will perform the duties customarily associated with such roles. | |
| Other Agents: | The Borrower may designate Lead Arrangers or their affiliates to act as syndication agent, documentation agent or co-documentation agent as provided in the Commitment Letter. | |
| Credit Facilities: | (A) A senior secured seven-year term loan B facility (the “Initial Term B Facility” and together with any Incremental Term Facility (as defined below) that is a term loan B facility, each a “Term B Facility”) in an aggregate principal amount of up to $2,750 million plus, at the Borrower’s election, an amount sufficient to fund any original issue discount or upfront fees required to be funded in connection with the “Market Flex Provisions” in the Fee Letter. The loans under the Initial Term B Facility are referred to as the “Initial Term B Loans” and the loans under any Term B Facility are referred to as the “Term B Loans”. The Lenders holding Term B Loans are referred to as the “Term B Lenders.”
(B) A senior secured three-year term loan A facility (the “Initial Term A Facility” and, together with any Incremental Term Facility that is a term loan A facility, each a “Term A Facility”) in an aggregate principal amount of up to $4,250 million. The loans under the Initial Term A Facility are referred to as the “Initial Term A Loans”; the loans under any Term A Facility are referred to as the “Term A Loans”. The Lenders holding Term A Loans are referred to as the “Term A Lenders.” | |
| 2 | All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Term Sheet is attached, including Exhibits A, C and D thereto. |
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| (C) A senior secured five-year revolving facility (the “Revolving Facility”) in an aggregate principal amount of up to $250 million. The loans under the Revolving Facility are referred to as the “Revolving Loans” and, together with the Term Loans, the “Loans”, and the commitments under the Revolving Facility are referred to as the “Revolving Commitments.” The Lenders with Revolving Commitments are referred to as the “Revolving Lenders.”
(D) A senior secured 364-day term loan facility (the “Margin Bridge Facility” and, collectively with the Initial Term A Facility and the Initial Term B Facility, the “Initial Term Facilities”; the Initial Term Facilities, together with any Incremental Term Facility, the “Term Facilities”) in an aggregate principal amount of up to (i) $825 million minus (ii) the aggregate principal amount of any Margin Loans funded on the Closing Date. The loans under the Margin Bridge Facility are referred to as the “Margin Bridge Loans”, and, collectively with the Initial Term A Loans, the Initial Term B Loans and any Incremental Term Loans, the “Term Loans.” The Lenders holding Margin Bridge Loans are referred to as the “Margin Bridge Lenders” and, collectively with the Term B Lenders and the Term A Lenders, the “Term Lenders”; the Term Lenders, together with the Revolving Lenders, the “Lenders”. | ||
| Incremental Facilities: | The Credit Facilities Documentation will permit the Borrower or any Subsidiary Guarantor (as defined below) to add one or more incremental term loan facilities under the Credit Facilities Documentation or to increase any existing term loan facility (each, an “Incremental Term Facility” and the loans under any Incremental Term Facility, the “Incremental Term Loans”) and/or increase any of the Revolving Commitments (any such increase, an “Incremental Revolving Increase”) and/or add one or more incremental revolving credit facility tranches (each, an “Incremental Revolving Facility”; the Incremental Term Facilities, the Incremental Revolving Increases and the Incremental Revolving Facilities (and, in each case, the commitments in respect thereof) are collectively referred to as “Incremental Facilities”) in an aggregate amount not to exceed the sum of (A) (x) the greater of (1) $1,180 million and (2) 100% of Consolidated EBITDA (to be defined as provided under “Financial Definitions” below) for the last four fiscal quarters of the Borrower for which financial statements are available (such greater amount, the “Incremental Starter Amount”) less (y) the aggregate amount of any Incremental Equivalent Debt (as defined below) incurred in reliance on the equivalent threshold as set forth in this clause (A) plus (B) all voluntary prepayments of the Term Facilities (other than the Margin Bridge Facility) (including all repayments or purchases made at a discount to par (in an amount equal to the principal amount of such repayment)) and voluntary prepayments of Revolving Loans to the extent accompanied by a permanent reduction of the Revolving Commitments thereunder, in each case, made prior to such date of incurrence and not funded with the proceeds of long-term debt plus (C) an amount equal to the amount of indebtedness that is permitted to be incurred in reliance on the General Debt Basket (as defined below) (this clause (C), the “General Debt Basket Incremental Component”) plus (D) an additional amount such that, after giving effect to the incurrence of any such Incremental Facility pursuant to this clause (D) (which shall assume that all such indebtedness was secured on a first lien basis, whether or not so secured, and which shall be deemed to include the full amount of any Incremental Revolving Increase or Incremental Revolving Facility assuming that the full amount of such increase or Incremental Revolving Facility, as applicable, had been drawn, and after giving effect to any acquisition consummated concurrently therewith and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustment events, including any debt incurrence (but without giving effect to any amount incurred simultaneously under either (1) clause (A), (B) or | |
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| (C) above or (2) the Revolving Facility) or retirement subsequent to the end of the applicable test period and on or prior to the date of such incurrence, all to be further defined in the Credit Facilities Documentation), the Borrower would be in compliance, on a pro forma basis (and without netting any cash proceeds of such incurrence), with a First Lien Leverage Ratio (to be defined as provided under “Financial Definitions” below) (recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) equal to or less than either (x) (A) until the aggregate expected net proceeds (as determined in good faith by the Borrower) of all non-ordinary course asset sales publicly announced following the Original Signing Date exceeds $2,000 million (the “Asset Sale Threshold”), 4.25:1.00 and (B) thereafter, 4.75:1.00 or (y) the First Lien Leverage Ratio immediately prior to the incurrence of such Incremental Facility (the “Incremental No Worse Prong”) (this clause (D), the “Leverage Based Incremental Amount”); provided that:
(i) no event of default (except in connection with permitted acquisitions or other investments, where no payment or bankruptcy event of default will be the standard) under the Credit Facilities Documentation has occurred and is continuing or would exist after giving effect thereto;
(ii) the maturity date of any such Incremental Term Facility (x) prior to the date on which the Initial Term A Facility has been repaid in full and except with respect to any customary bridge facilities, shall be no earlier than the maturity date of the Initial Term A Facility and the weighted average life of any such Incremental Term Facility shall not be shorter than the then remaining weighted average life of the Initial Term A Facility and (y) shall be no earlier than the latest maturity date of the Initial Term B Facility and the weighted average life of any such Incremental Term Facility shall not be shorter than the remaining weighted average life of the Initial Term B Facility, and the maturity date of any such Incremental Revolving Facility shall be no earlier than the maturity date of the Initial Revolving Facility; provided that, at the option of the Borrower, this clause (ii)(y) shall not apply to (A) Incremental Facilities in an aggregate outstanding principal amount of up to the greater of (x) $1,180 million and (y) 100% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available of Incremental Facilities (the “Incremental Maturity Carveout”), (B) customary bridge facilities or (C) Incremental Term Facilities incurred in connection with an investment or acquisition;
(iii) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees and (subject to clause (ii) above) maturity and amortization schedule applicable to any Incremental Term Facility or Incremental Revolving Facility shall be determined by the Borrower and the lenders thereunder; provided that only during the period commencing on the Closing Date and ending on the date that is six months after the Closing Date (the “MFN Sunset Date”) and only with respect to any Incremental Term Facilities in the form of broadly syndicated U.S. dollar-denominated term B loans that are incurred pursuant to clause (A) and/or (B) above (other than Incremental Term Loans incurred in reliance on any portion of clause (B) thereof that is attributable to permanent commitment reductions of revolving credit facilities) that are secured by liens on the Collateral ranking equal in priority with the liens on the Collateral securing the Secured Obligations and mature on or prior to the maturity date of the Initial |
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| Term B Facility, and except (1) with respect to Incremental Term Facilities incurred in connection with an investment or an acquisition (the “MFN Acquisition/Investment Carveout”) and (2) with respect to Incremental Term Facilities incurred pursuant to clause (A) and/or (B) above in an aggregate principal amount of up to the greater of (x) $1,180 million and (y) 100% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available (the “MFN Amount Carveout”), in the event that the interest rate margins for any such Incremental Term Facility are higher than the interest rate margins for the Initial Term B Facility by more than 100 basis points (the “MFN Cushion”), then the interest rate margins for the Initial Term B Facility shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such Incremental Term Facility minus 100 basis points; provided, further, that, in determining the interest rate margins applicable to any Incremental Term Facility and the Initial Term B Facility (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) or other fees payable by the Borrower to the Lenders under the Initial Term B Facility or any Incremental Term Facility in the initial primary syndication thereof, if any, shall be included (with OID or upfront fees being equated to interest based on assumed four-year life to maturity), (B) arrangement, structuring, ticking, commitment, amendment, unused line or underwriting fees or other similar fees payable in connection with the Initial Term B Facility or such Incremental Term Loans, as applicable, consent fees for an amendment (in each case regardless of whether such fees are paid to or shared in whole or in part with any lender) and such other fees not paid to all relevant lenders generally with respect to such indebtedness shall be excluded, (C) the applicable interest rate margins shall be deemed to include any credit spread or similar adjustment applicable to a one-month Term SOFR borrowing and (D) (1) to the extent that Term SOFR for a three-month interest period on the closing date of any such Incremental Term Facility is less than the Term SOFR floor for the Initial Term B Facility, the amount of such difference shall be deemed added to the interest margin for the Initial Term B Facility, solely for the purpose of determining whether an increase in the interest rate margins for the Initial Term B Facility shall be required and (2) with respect to any Incremental Term Facility, to the extent that Term SOFR applicable to such Incremental Term Facility for a three-month interest period on the closing date of any such Incremental Term Facility is less than the interest rate floor, if any, applicable to any such Incremental Term Facility, the amount of such difference shall be deemed added to the interest rate margins for the loans under the Incremental Term Facility solely for the purpose of determining whether an increase in the interest rate margins for the Initial Term B Facility shall be required (collectively, the “MFN Protection”);
(iv) any Incremental Term Facility or any Incremental Revolving Facility shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the Initial Term Facilities or Initial Revolving Facility, as the case may be (except to the extent permitted by clause (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance or |
B-4
| other covenant is added for the benefit of any (A) Incremental Term Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance or other covenant is (1) also added for the benefit of any existing Facility or (2) only applicable after the latest maturity of any existing Facility); or (B) any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance or other covenant is (1) also added for the benefit of the Initial Revolving Facility or (2) only applicable after the latest maturity of any existing Facility); and
(v) (a) any Incremental Facility that is secured shall only be secured by the Collateral and (b) no Incremental Facility shall be guaranteed by entities other than the Guarantors or the Borrower.
The Borrower or the applicable Subsidiary Guarantor may (but is not obligated to) seek commitments in respect of the Incremental Facilities from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and from additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection therewith (“Additional Lenders”); provided that (i) the Administrative Agent shall have consent rights (not to be unreasonably withheld) with respect to such Additional Lender, if such consent would be required under the heading “Assignments and Participations” for an assignment of loans or commitments, as applicable, to such Additional Lender, (ii) solely with respect to any Incremental Revolving Increase, the Issuing Banks (as defined in the Credit Facilities Precedent Documentation) shall have consent rights (not to be unreasonably withheld) with respect to such Additional Lender, if such consent would be required under the heading “Assignments and Participations” for an assignment of revolving loans or commitments, as applicable, to such Additional Lender and (iii) the restrictions applicable to Affiliated Lenders (to be defined in accordance with the Documentation Considerations) under “Assignments and Participations” shall apply to commitments in respect of Incremental Facilities. | ||
| Refinancing Facilities: | The Credit Facilities Documentation will permit the Borrower or any Guarantor to refinance loans or commitments (including by extending the maturity) under the Facilities or loans or commitments under any Incremental Facility on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation (as defined below) after giving effect to Documentation Considerations (the “Refinancing Indebtedness”). | |
| Purpose: | (A) The proceeds of borrowings under the Initial Term Facilities will be used by the Borrower and its subsidiaries, together with the proceeds from borrowings under the Revolving Facility, the proceeds from the Margin Loan Facility and cash on hand at the Target and its subsidiaries, to pay the Acquisition Funds (including, at the Borrower’s election, to fund original issue discount (“OID”) or upfront fees required pursuant to the “Market Flex Provisions” in the Fee Letter) to the extent otherwise permitted above and may be used after the Closing Date for working capital or other general corporate purposes and any other use not prohibited by the Credit Facilities Documentation.
(B) The letters of credit and proceeds of Revolving Loans (except as set forth below) may be used by the Borrower and its subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other permitted investments and permitted dividends and other distributions on | |
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| account of the capital stock of the Borrower (or any direct or indirect parent company thereof) and any other use not prohibited by the Credit Facilities Documentation, and, subject to the limitations set forth under “Availability” below, to finance a portion of the Acquisition Funds. | ||
| (C) The proceeds of any Incremental Facility may be used by the Borrower and its subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions, other permitted investments and dividends and other permitted distributions on account of the capital stock of the Borrower (or any direct or indirect parent company thereof) and any other use not prohibited by the Credit Facilities Documentation. | ||
| Availability: | The Initial Term Facilities will be available in a single drawing on the Closing Date. Amounts borrowed under the Initial Term Facilities that are repaid or prepaid may not be reborrowed.
The Revolving Facility will be available on (subject to the limitations set forth in the next two succeeding sentences) and after the Closing Date and at any time prior to the final maturity of the Revolving Facility. The Revolving Facility (exclusive of letter of credit usage) will be made available on the Closing Date in an amount sufficient to fund (i) any OID or upfront fees required to be funded on the Closing Date pursuant to the “Market Flex Provisions” in the Fee Letter, plus (ii) any ordinary course working capital requirements of the Borrower and its subsidiaries on the Closing Date, plus (iii) refinance any outstanding amounts under the revolving facility under the Existing Wildcat Credit Agreement, plus (iv) Acquisition Funds in an aggregate amount, in the case of this clause (iv), not to exceed $75 million. Additionally, letters of credit issued under facilities and other credit support no longer available to the Target or its subsidiaries as of the Closing Date may be “rolled over” on the Closing Date and/or new letters of credit may be issued on the Closing Date in order to, among other things, backstop or replace any such credit support outstanding on the Closing Date under such facilities. Otherwise, letters of credit and Revolving Loans will be available at any time prior to the final maturity of the Revolving Facility, in minimum principal amounts to be agreed upon. Amounts repaid under the Revolving Facility may be reborrowed. The Revolving Facility shall permit drawings of ABR loans (as defined in Annex I) on same day notice if received by the Administrative Agent prior to 12:00 p.m. New York time. | |
| Interest Rates and Fees: | As set forth on Annex I hereto. | |
| Default Rate: | During the continuance of a payment or bankruptcy event of default, with respect to overdue principal, at the applicable interest rate plus 2.00% per annum, and with respect to any other overdue amount (including overdue interest), at the interest rate applicable to ABR loans plus 2.00% per annum, which, in each case, shall be payable on demand. | |
| Letters of Credit: | An aggregate amount not to exceed an amount to be agreed of the Revolving Facility will be available to the Borrower for the purpose of issuing letters of credit on terms and conditions consistent with those set forth in the Credit Facilities Precedent Documentation; provided that MSSF shall not be required to issue any letter of credit that is not a standby letter of credit. | |
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| Final Maturity and Amortization: | The Initial Term B Facility will mature on the date that is seven years after the Closing Date and will amortize in equal quarterly installments in aggregate annual amounts equal to 1.00% of the original principal amount of the Initial Term B Facility, commencing with the second full fiscal quarter after the Closing Date, with the balance payable on the maturity date thereof.
The Initial Term A Facility will mature on the date that is three years after the Closing Date and will amortize in equal quarterly installments in aggregate annual amounts equal to 2.50% of the original principal amount of the Initial Term A Facility, commencing with the second full fiscal quarter after the Closing Date, with the balance payable on the maturity date thereof.
The Margin Bridge Facility will mature on the date that is 364 days after the Closing Date. The Margin Bridge Facility will have no required amortization.
The Revolving Facility will mature, and the Revolving Commitments will terminate, on the date that is five years after the Closing Date.
The Credit Facilities Documentation shall contain customary “amend and extend” provisions pursuant to which individual Lenders may agree to extend the maturity date of their outstanding Initial Term Loans, loans under any Incremental Facility or Revolving Commitments (which may include, among other things, an increase in the interest rate payable in respect of such extended Term Loans, loans under any Incremental Facility or Revolving Commitments, with such extensions not subject to any “default stoppers”, financial tests or “most favored nation” pricing provisions) upon the request of the Borrower and without the consent of any other Lender (it is understood that (i) no existing Lender will have any obligation to commit to any such extension and (ii) each Lender under the class being extended shall have the opportunity to participate in such extension on the same terms and conditions as each other Lender under such class). | |
| Guarantees: | All obligations of the Borrower (the “Credit Facilities Obligations”) under the Credit Facilities and, at the election of the Borrower, all obligations of Holdings (as defined below) or any restricted subsidiary of Holdings under any interest rate protection, foreign exchange or other swap or hedging arrangements (other than any obligation of any Guarantor to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act (a “Swap”), if, and to the extent that, all or a portion of the guarantee by such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (collectively, “Excluded Swap Obligations”)) and cash management arrangements, in each case entered into with a Lender, Lead Arranger, Joint Bookrunner, the Administrative Agent, any affiliate of a Lender, Lead Arranger, Joint Bookrunner or the Credit Facilities Administrative Agent or, upon notice to the Administrative Agent, any other person (“Hedging/Cash Management Arrangements”) will be unconditionally and irrevocably guaranteed jointly and severally on a senior basis (the “Guarantees”) by each existing and subsequently acquired or organized direct or indirect wholly-owned U.S. restricted subsidiary of the Borrower (the “Subsidiary Guarantors”) and by the direct parent company of the Borrower (“Holdings” and, together with the Subsidiary Guarantors, the “Guarantors”); provided that Subsidiary Guarantors shall not include (a) unrestricted | |
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| subsidiaries, (b) immaterial or other excluded subsidiaries (to be defined in a mutually acceptable manner), (c) any subsidiary that is prohibited by applicable law, rule or regulation or by any contractual obligation existing on the Closing Date or on the date any such subsidiary is acquired (so long as in respect of any such contractual prohibition such prohibition is not incurred in contemplation of such acquisition), in each case from guaranteeing the Credit Facilities or which would require governmental (including regulatory) consent, approval, license or authorization to provide a Guarantee, or for which the provision of a Guarantee would result in a material adverse tax consequence (including as a result of the operation of Section 956 of the Internal Revenue Code of 1986, as amended (the “IRS Code”) or any similar law or regulation in any applicable jurisdiction) to Holdings or one of its subsidiaries (as reasonably determined by the Borrower in consultation with the Administrative Agent), (d) any direct or indirect U.S. subsidiary of a non-U.S. subsidiary of the Borrower that is a “controlled foreign corporation” within the meaning of Section 957 of the IRS Code (a “CFC”) and any direct or indirect subsidiary of the Borrower that has no material assets other than equity and/or indebtedness of one or more CFCs (any such entity, a “FSHCO”) and (e) any not-for-profit subsidiaries, captive insurance companies, receivables subsidiaries or other special purpose subsidiaries (including, for the avoidance of doubt, the Margin Loan Borrower and any other obligor in respect of the Margin Loan Facility). Neither the Target nor any of its subsidiaries will be Guarantors prior to the consummation of the Acquisition and the initial funding of the Credit Facilities on the Closing Date. | ||
| Notwithstanding the foregoing, subsidiaries may be excluded from the guarantee requirements in circumstances where the Administrative Agent and the Borrower reasonably agree that the cost of providing such a guarantee is excessive in relation to the value afforded thereby. | ||
| Security: | Subject to the limitations set forth below in this section and subject to the Limited Conditionality Provisions, the Credit Facilities Obligations, the Hedging/Cash Management Arrangements and the Guarantees in respect of the Credit Facilities Obligations (collectively, the “Credit Facilities Secured Obligations”) will be secured on a first priority basis by: (a) a perfected first-priority pledge of 100% of the equity interests of the Borrower and the Margin Loan Borrower and 100% of the equity interests of each direct, wholly-owned material restricted subsidiary of the Borrower and of each Subsidiary Guarantor (which pledge, in the case of capital stock of any non-U.S. subsidiary or any FSHCO, shall be limited to 65% of any voting capital stock and 100% of the non-voting capital stock of such first-tier material non-U.S. subsidiary or FSHCO) and (b) perfected first priority security interests in substantially all tangible and intangible personal property of the Borrower and each Subsidiary Guarantor (including but not limited to accounts receivable, inventory, equipment, general intangibles (including contract rights), investment property, U.S. intellectual property, intercompany notes, instruments, chattel paper and documents, letter of credit rights, commercial tort claims and proceeds of the foregoing) (the items described in clauses (a) and (b) above, but excluding the Excluded Assets (as defined in the Credit Facilities Precedent Documentation; provided that such definition shall be modified to expressly include as Excluded Assets all equity interests in TKO Operating Company LLC and TKO Group Holdings, Inc. (collectively the “Tiger Equity Interests”)), collectively, the “Collateral”). The pledges of and security interests in the Collateral granted by the Borrower and each Guarantor shall secure its own respective Credit Facilities Secured Obligations. For the avoidance of doubt, margin stock shall be an Excluded Asset. | |
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| All the above-described pledges and security interests shall be created on terms substantially similar to those set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations; and none of the Collateral shall be subject to other pledges or security interests, other than with respect to certain customary permitted encumbrances and other exceptions and baskets to be set forth in the Credit Facilities Documentation, substantially similar to the exceptions and baskets set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations. | ||
| Mandatory Prepayments: | Loans under the Credit Facilities and, to the extent required thereunder, under any Incremental Term Facility shall be prepaid with: | |
| (A) solely with respect to the Initial Term B Facility, commencing with the first full fiscal year of the Borrower to occur after the Closing Date, an amount equal to 50% of Excess Cash Flow (as defined in the Credit Facilities Precedent Documentation and as further reduced on a dollar-for-dollar basis in a manner consistent with the Credit Facilities Precedent Documentation) (the “ECF Prepayment Amount”), with step-downs to 25% and 0% based upon the achievement and maintenance of First Lien Leverage Ratios equal to or less than 4.00:1.00 and 3.50:1.00, respectively; provided that any such dollar-for-dollar reductions that have not been applied to reduce the ECF Prepayment Amount in any fiscal year may be carried over to subsequent fiscal years and applied to reduce the ECF Prepayment Amount in respect of such subsequent fiscal years until such time as such amounts have been used to reduce any such ECF Prepayment Amount; provided, further, that prepayments shall only be required under this clause if the ECF Prepayment Amount in any fiscal year is greater than the greater of (1) $200 million and (2) 15% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available (and only amounts in excess of such amount shall be required to be prepaid) (the “ECF Sweep Threshold”); | ||
| (B) solely with respect to the Initial Term A Facility, an amount equal to 100% of the net cash proceeds of any non-ordinary course asset sales; provided that prepayments shall only be required for individual asset sales in excess of $25 million; provided, further, that the aggregate amount of non-ordinary course asset sales excluded from the prepayment requirements pursuant to the foregoing shall not exceed $100 million; | ||
| (C) on and after the date on which the Initial Term A Facility has been repaid in full, with respect to the Initial Term B Facility, an amount equal to 100% (with step-downs to 50% and 0% based upon the achievement and maintenance of First Lien Leverage Ratios equal to or less than 4.00:1.00 and 3.50:1.00, respectively (the “Asset Sale Step-downs”) of the net cash proceeds (which shall be calculated in a manner consistent with the Credit Facilities Precedent Documentation) of non-ordinary course sales or other dispositions of assets constituting Collateral by the Borrower and its restricted subsidiaries after the Closing Date (including insurance and condemnation proceeds and sale leaseback proceeds) in excess of an amount to be agreed made pursuant to clause (b) under the heading “Permitted Asset Sales” below and otherwise consistent with such provisions in the Credit Facilities Precedent Documentation; in the case of asset sales or dispositions pursuant to clause (b)(x) in “Permitted Asset Sales” below, subject to the rights of | ||
B-9
| the Borrower and its restricted subsidiaries to reinvest 100% of such proceeds, if such proceeds are reinvested (or committed to be reinvested) within 540 days of the receipt of such net cash proceeds and, if so committed to reinvestment, reinvested no later than 180 days after the end of such 540-day period and other exceptions to be set forth in the Credit Facilities Documentation; provided that the Borrower may elect to deem expenditures that otherwise would be permissible reinvestments that occur up to 180 days prior to receipt of the proceeds of an asset sale to have been reinvested in accordance with the provisions hereof; | ||
| (D) an amount equal to 100% of the net cash proceeds of issuances of debt obligations of the Borrower and its restricted subsidiaries after the Closing Date (other than debt permitted under the Credit Facilities Documentation, except in respect of Refinancing Indebtedness); and | ||
| (E) solely with respect to the Margin Bridge Facility, (i) to the extent that the Margin Loan Facility is not funded on the Closing Date, an amount equal to 100% of the net cash proceeds of loans funded under the Margin Loan Facility, (ii) an amount equal to 100% of the net cash proceeds of any sales of Tiger Equity Interests after making any payments required with respect to the Margin Loan Facility and (iii) an amount equal to 100% of the net cash proceeds of any Incremental Facilities or Incremental Equivalent Debt, other than, in each case, customary bridge facilities or to the extent incurred in connection with an acquisition or similar investment. | ||
| Mandatory prepayments shall be applied, without premium or penalty (i) with respect to clause (A) above, amongst the Initial Term B Facility and any Incremental Term Facility as selected by the Borrower, (ii) with respect to clause (B) above, to the Initial Term A Facility, (iii) with respect to clause (C) above, to the Initial Term B Facilities and any Incremental Term Facility, and within each class of such Facilities as selected by the Borrower, (iv) with respect to clause (D) above, amongst the Initial Term Facilities and any Incremental Term Facility as selected by the Borrower (except with respect to Refinancing Indebtedness), (v) with respect to clause (E) above, to the Margin Bridge Facility and (vi) at the Borrower’s direction to the amortization payments scheduled to occur under the Term Facilities and any Incremental Term Facility. | ||
| Notwithstanding the foregoing, the Credit Facilities Documentation will provide that, in the event that any Refinancing Indebtedness or any other indebtedness, including any Incremental Equivalent Debt, that is secured on an equal priority basis (but without regard to the control of remedies) with the liens on the Collateral securing the Facilities (collectively, “Additional First Lien Debt”), shall be issued or incurred, such Additional First Lien Debt may share no more than ratably in any prepayments required by the foregoing provisions of clauses (A) and/or (C) to the extent required by the terms of the documentation for such Additional First Lien Debt. | ||
| Prepayments attributable to non-U.S. subsidiaries’ Excess Cash Flow and asset sale or other disposition proceeds will be limited under the Credit Facilities Documentation to the extent the repatriation of such amounts would result in material adverse tax consequences or would be prohibited or restricted by applicable law, rule or regulation in a manner consistent with the Credit Facilities Precedent Documentation. | ||
| Any Term Lender may elect not to accept its pro rata portion of any mandatory prepayment other than a prepayment described in clause (D) above (each a “Declining | ||
B-10
| Lender”). Any prepayment amount declined (such amount, a “Declined Amount”) by a Declining Lender under the Term Facilities (including any Incremental Term Facility) may be retained by the Borrower and its restricted subsidiaries and shall increase the Available Amount Basket (as defined below).
The loans under the Revolving Facility shall be prepaid and the letters of credit cash collateralized to the extent such extensions of credit exceed the amount of the commitments under the Revolving Facility. | ||
| Voluntary Prepayments and Reductions in Commitments: | Voluntary reductions of the unutilized portion of the Revolving Commitments and voluntary prepayments of borrowings under the Term Facilities will be permitted at any time, in minimum principal amounts to be agreed, without premium or penalty (other than as set forth in the second succeeding paragraph).
All voluntary prepayments of the Term Facilities and any Incremental Facility will be applied to the remaining amortization payments under the Term Facilities or such Incremental Facility as directed by the Borrower (and absent such direction, in direct order of maturity thereof), including to any class of extending or existing Term Loans in such order as the Borrower may designate, and shall be applied to any of the Credit Facilities or any Incremental Facility as determined by the Borrower.
Any voluntary prepayment or refinancing (other than a refinancing of the Initial Term B Facility in connection with any transaction that would, if consummated, constitute a change of control, initial public offering, Material Acquisition (as defined below), Material Disposition (as defined below) or an increase in the aggregate principal amount of Term B Loans (including by adding a new Class of Term B Loans) (the “Facility Upsize”)) of the Initial Term B Facility with other broadly syndicated U.S. dollar-denominated term loan B financings under credit facilities with a lower Effective Yield (as defined below) than the Effective Yield of the Initial Term B Facility, or any amendment (other than an amendment of the Initial Term B Facility in connection with any transaction that would, if consummated, constitute a change of control, initial public offering, Material Acquisition, Material Disposition or a Facility Upsize that reduces the Effective Yield of the Initial Term B Facility, in either case that occurs prior to the date that is six months following the Closing Date (the “Soft Call Date”) and the primary purpose of which is to lower the Effective Yield on the Initial Term B Facility, shall be subject to a prepayment premium of 1.00% of the principal amount of the Initial Term B Facility so prepaid, refinanced or amended (collectively, the “Soft Call Protection”). For the purposes of this paragraph, (i) “Material Acquisition” shall mean any acquisition by the Borrower or any restricted subsidiary for consideration (including any assumed indebtedness) in an aggregate amount equal to or greater than the lesser of $300 million and 25% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available, (ii) “Material Disposition” shall mean any disposition by the Borrower or any restricted subsidiary for consideration (including any assumed indebtedness) in an aggregate amount equal to or greater than the lesser of $300 million and 25% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available and (iii) “Effective Yield” shall mean, as of any date of determination, the sum of (a) the higher of (A) the Term SOFR rate on such date for a deposit in dollars with a maturity of one month and (B) the Term SOFR floor, if any, with respect thereto as of such date, (b) the interest rate margins as of such date (with such interest rate margin and interest spreads to be determined by reference to the Term SOFR rate) and (c) the amount of OID and upfront fees thereon (converted to yield assuming a four-year average life and without any present value discount). | |
B-11
| Conditions to Initial Borrowing: | Subject to the Limited Conditionality Provisions, the availability of the initial borrowing and other extensions of credit under the Credit Facilities on the Closing Date will be subject solely to (a) delivery of a customary borrowing/issuance notice; provided that such notice shall not include any representation or statement as to the absence (or existence) of any default or event of default, (b) the accuracy of the Specified Representations in all material respects (subject to the Limited Conditionality Provisions); provided that any representations and warranties qualified by materiality shall be, as so qualified, accurate in all respects, (c) the accuracy of the Specified Acquisition Agreement Representations in all material respects; provided that any representations and warranties qualified by materiality shall be, as so qualified, accurate in all respects, and (d) the applicable conditions expressly set forth in Exhibit D to the Commitment Letter. | |
| Conditions to All Subsequent Borrowings: | After the Closing Date, the making of each extension of credit under the Revolving Facility shall be conditioned upon (a) delivery of a customary borrowing/issuance notice, (b) the accuracy of representations and warranties in all material respects; provided that any representations and warranties qualified by materiality shall be, as so qualified, accurate in all respects and (c) the absence of defaults or events of default at the time of, and after giving effect to the making of, such extension of credit. | |
| Credit Facilities Documentation: | The definitive financing documentation for the Credit Facilities (the “Credit Facilities Documentation”) shall be under a single credit agreement and shall be initially drafted by counsel for the Sponsor and contain the terms set forth in this Exhibit B (subject to the right of the Required Lead Arrangers, as applicable, to exercise the “Market Flex Provisions” under the Fee Letter) and, to the extent any other terms are not expressly set forth in this Exhibit B, will (a) be negotiated in good faith within a reasonable time period to be determined based on the expected Closing Date in coordination with the Acquisition Agreement, and taking into account the timing of the syndication of the Initial Term Facilities, (b) be no less favorable to the Borrower and its subsidiaries than the Existing Credit Agreements and (c) contain only those conditions, representations, events of default and covenants set forth in this Exhibit B and such other terms (but no other conditions) as the Borrower and the Lead Arrangers shall reasonably agree; it being understood and agreed that the Credit Facilities Documentation shall be based on, and substantially consistent with that certain Credit Agreement, dated as of June 28, 2023 (as amended, supplemented or otherwise modified through the Original Signing Date, the “Credit Facilities Precedent Documentation”), among Quartz Intermediate, LLC, Quartz AcquireCo, LLC and JPMorgan Chase Bank, N.A., administrative and collateral agent, and the other banks, agents, financial institutions and other parties thereto (and the related security, pledge, collateral and guarantee agreements executed and/or delivered in connection therewith and the forms of intercreditor agreements attached thereto), as modified by the terms set forth herein and subject to (i) materiality qualifications and other exceptions that give effect to and/or permit the Transactions, (ii) certain baskets, thresholds and exceptions that are to be agreed in light of the Consolidated EBITDA and leverage level of the Borrower and its subsidiaries (after giving effect to the Transactions), (iii) such other modifications to reflect the operational and strategic requirements of Holdings and its subsidiaries (after giving effect to the Transactions) in light of their size, industry (and risks and trends associated therewith), geographic locations, businesses, business practices, operations, total assets, financial | |
B-12
| accounting and the Projections, (iv) modifications to reflect changes in law or accounting standards since the date of the Credit Facilities Precedent Documentation and (v) modifications to reflect reasonable administrative, agency and operational requirements of the Administrative Agent, (vi) modifications to reflect the financial model provided to the Lead Arrangers on January 31, 2024 (the “Sponsor Model”) and the quality of earnings report provided to the Lead Arrangers on January 18, 2024 (the “QofE Report”) (collectively, the “Documentation Considerations”). For the avoidance of doubt, the Credit Facilities Documentation will include bail-in provisions consistent with the Credit Facilities Precedent Documentation. | ||
| Limited Condition Transactions: | For purposes of (i) determining compliance with any provision of the Credit Facilities Documentation which requires the calculation of the First Lien Leverage Ratio, the Secured Leverage Ratio (as defined in the Credit Facilities Precedent Documentation, subject to “Financial Definitions” below), the Total Leverage Ratio (as defined in the Credit Facilities Precedent Documentation, subject to “Financial Definitions” below) or the Interest Coverage Ratio (as defined in the Credit Facilities Precedent Documentation, subject to “Financial Definitions” below), (ii) determining compliance with representations, warranties, defaults or events of default or (iii) testing availability under baskets set forth in the Credit Facilities Documentation (including baskets measured as a percentage of Consolidated EBITDA), in each case, in connection with a Limited Condition Transaction, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be, as applicable, the date the definitive agreements or letters of intent for such Limited Condition Transaction are entered into, or the date of delivery of irrevocable notice or a dividend declaration with respect to, such Limited Condition Transaction (such date, the “LCT Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith as if they had occurred at the beginning of the most recent test period ending prior to the LCT Test Date, the Borrower or a restricted subsidiary could have taken such action on the relevant LCT Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with.
“Limited Condition Transaction” shall mean (i) an acquisition or other investment by one or more of the Borrower and its restricted subsidiaries of any assets, business or person permitted by the Credit Facilities Documentation, (ii) any repayment, repurchase or refinancing of indebtedness with respect to which an irrevocable notice of repayment (or similar irrevocable notice) is required to be delivered and (iii) any dividends or distributions on, or redemptions of, equity interests not prohibited by the Credit Facilities Documentation declared or requiring irrevocable notice in advance thereof.
For the avoidance of doubt, if the Borrower has made an LCT Election and any of the ratios or baskets for which compliance was determined or tested as of the LCT Test Date (including with respect to the incurrence of any Indebtedness) are exceeded as a result of fluctuations in any such ratio or basket (including due to fluctuations in pro forma Consolidated EBITDA, including of the target of any Limited Condition Transaction) at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations; however, if any ratios improve or baskets increase as a result of such fluctuations, such improved ratios or baskets may be utilized. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of | |
B-13
| any ratio or basket on or following the relevant LCT Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of debt and the use of proceeds thereof) have been consummated. | ||
| Representations and Warranties: | Subject to the Limited Conditionality Provisions, limited on the Closing Date to the Specified Representations and the Specified Acquisition Agreement Representations and thereafter to the representations and warranties set forth in Article III of the Credit Facilities Precedent Documentation (to be applicable to Holdings, the Borrower and its restricted subsidiaries only and subject, where applicable, to qualifications and limitations for materiality consistent with those provided in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations). | |
| “Material Adverse Effect” shall (a) on the Closing Date, have the meaning ascribed to such term in the Acquisition Agreement, and (b) thereafter, have the meaning ascribed to such term in the Credit Facilities Precedent Documentation. | ||
| Affirmative Covenants: | Subject in all respects to the Documentation Considerations, to be applicable to the Borrower and its restricted subsidiaries only, the same (including, for the avoidance of doubt, with respect to materiality qualifiers, exceptions and limitations) as the affirmative covenants set forth in Article V of the Credit Facilities Precedent Documentation; provided that the Credit Facilities Documentation shall provide that (i) audited annual financial statements shall be delivered within 120 days (or, in the case of the first fiscal year ending after the Closing Date, 150 days) of the last day of each fiscal year, (ii) unaudited quarterly financial statements shall be delivered within 60 days (or, in the case of the first three fiscal quarters ending after the Closing Date, 90 days) of the last day of each of the first three fiscal quarters and (iii) prior to an IPO, the Borrower shall deliver an annual budget within the time period required for delivery of audited annual financial statements. | |
| Negative Covenants: | Limited to the following (to be applicable to the Borrower and its restricted subsidiaries): | |
| a) limitations on the incurrence of debt (which shall permit, among other things, (i) the indebtedness under the Credit Facilities (including Incremental Facilities) and any permitted refinancing thereof, (ii) non-speculative hedging arrangements, (iii) indebtedness (including indebtedness under the Existing Tiger Credit Agreement and Ordinary Course Indebtedness) of the Target and its subsidiaries incurred prior to the Closing Date which remains outstanding and is permitted to remain outstanding under the Acquisition Agreement and any permitted refinancings of the foregoing, (iv) any secured or unsecured notes or loans issued by the Borrower or a Guarantor in lieu of the Incremental Facilities (such loans or notes, “Incremental Equivalent Debt”); provided that (A) the incurrence of such indebtedness shall result in a dollar-for-dollar reduction of the amount of indebtedness that the Borrower and the Guarantors may incur in respect of the Incremental Facilities and the other requirements related to the incurrence of the Incremental Facilities shall be satisfied (other than those set forth in the proviso to clause (iii) and in clauses (iv) and (v) of such requirements); provided, however, | ||
B-14
| that, in the case of any Incremental Equivalent Debt consisting of junior priority secured notes or loans, in lieu of compliance with the First Lien Secured Leverage Ratio test set forth in the first paragraph under “Incremental Facilities”, the Borrower shall instead be in compliance, on a pro forma basis (and without netting any cash proceeds of such incurrence), with either (x) a Senior Secured Leverage Ratio (to be defined as provided under “Financial Definitions” below) (recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) equal to or less than either (i) 6.50:1.00 or (ii) the Senior Secured Leverage Ratio immediately prior to the incurrence of such Incremental Equivalent Debt (the “Junior Debt Leverage No Worse Prong”) or (y) an Interest Coverage Ratio of not less than either (i) 1.75:1.00 or (ii) the Interest Coverage Ratio immediately prior to the incurrence of such Incremental Equivalent Debt (this clause (ii), the “Junior Debt ICR No Worse Prong”), (B) to the extent secured, such indebtedness shall be subject to any applicable intercreditor agreement and (C) the terms and conditions of such Incremental Equivalent Debt (excluding pricing, rate floors, discounts, fees, premiums and prepayment or redemption provisions) either (I) are not materially more favorable (when taken as a whole) to the lenders or investors providing such Incremental Equivalent Debt than the terms and conditions of the Credit Facilities Documentation (when taken as a whole) are to the Lenders (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Equivalent Debt, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant or other covenant is either (x) also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of any such Incremental Equivalent Debt in connection therewith or (y) only applicable after the latest maturity date under the Credit Facilities Documentation at such time), (II) include covenants or other provisions applicable only to periods after the latest maturity date under the Credit Facilities Documentation at such time or (III) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Incremental Equivalent Debt (as determined by the Borrower in good faith), (v) Refinancing Indebtedness, (vi) indebtedness assumed in connection with, or otherwise incurred to finance, Permitted Acquisitions and other investments, in each case, on the terms set forth in the Credit Facilities Precedent Documentation, (vii) purchase money indebtedness and capital leases (x) in an amount to be agreed plus (y) an unlimited amount to finance the purchase, construction and improvement of fixed or capital assets subject to compliance with a maximum Senior Secured Leverage Ratio (calculated as if such purchase money indebtedness and capital leases are secured by Collateral for these purposes) of no greater than (A) prior to the date on which the Asset Sale Threshold has been achieved, 4.25:1.00 and (B) on and after the date on which the Asset Sale Threshold has been achieved, 4.75:1.00 (this clause (y), the “Capital Lease Ratio Prong”), (viii) indebtedness arising from agreements providing for adjustments of purchase price or “earn outs” entered into in connection with acquisitions, (ix) a general debt basket in an amount to be agreed and which may be secured to the extent permitted by exceptions to the lien covenant (the “General Debt Basket”) less amounts incurred under the General Debt Basket Incremental Component, (x) other senior, senior subordinated or subordinated indebtedness that is unsecured or that is secured solely by assets that do not constitute Collateral so long as the Borrower is in compliance, on a pro forma basis (and without netting any cash proceeds of such incurrence), with either (x) a |
B-15
| Total Leverage Ratio (to be defined as provided under “Financial Definitions” below) (recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) equal to or less than either (i) 7.00:1.00 or (ii) the Total Leverage Ratio immediately prior to the incurrence of such indebtedness (the “Unsecured Debt Leverage No Worse Prong”) or (y) an Interest Coverage Ratio of not less than either (i) 1.75:1.00 or (ii) the Interest Coverage Ratio immediately prior to the incurrence of such indebtedness (this clause (ii), the “Unsecured Debt ICR No Worse Prong”)), (xi) a subsidiary debt basket for non-Guarantor subsidiaries in an amount to be agreed, (xii) indebtedness in an amount equal to (A) 200% of any cash common equity contribution to Holdings or the Borrower following the Closing Date (other than Cure Amounts (as defined in the Credit Facilities Precedent Documentation) and the proceeds of any such Cure Amount that is actually used pursuant to, or that increases, another basket under the Credit Facilities Documentation) to the extent such cash equity contribution shall not be counted for purposes of the Available Amount Basket and without any time limitation for use of proceeds of such contribution (this clause (xii)(A), the “Contribution Debt Basket”) plus (B) on and after the date on which (1) the aggregate principal amount of outstanding Initial Term A Loans is equal to or less than $1,250 million and (2) there are no Margin Bridge Loans then outstanding (the foregoing clauses (1) and (2), collectively, the “TLA/MB Covenant Threshold”), the unused amount of any baskets and/or exceptions permitting dividends or distributions on, or redemptions of, the equity of the Borrower (or any direct or indirect parent company thereof) or restricted investments (which such baskets, for the avoidance of doubt, shall be reduced by the amount of such incurrence on a dollar-for-dollar basis) (this clause (xii)(B), the “RP Debt Basket”), (xiii) using the Available Amount Basket as set forth and subject to the conditions in the second succeeding paragraph, (xiv) permitted receivables financings and (xv) other customary exceptions set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations);
b) limitations on liens on Collateral securing indebtedness for borrowed money and on Tiger Equity Interests (which shall permit, among other things, liens securing (i) any of the Credit Facilities and, in each case, any permitted refinancing thereof, (ii) liens on Tiger Equity Interests securing the Margin Loan Facility and any permitted refinancing thereof; provided that, except with the consent of Term A Lenders holding a majority of the Initial Term A Loans, until the achievement of the TLA/MB Covenant Threshold, no consensual liens on the Tiger Equity Interests other than liens permitted by this clause (ii) shall be permitted, (iii) any secured Incremental Equivalent Debt, (iv) Refinancing Indebtedness, (v) debt assumed in connection with a Permitted Acquisition or other investment on the terms described under the heading “Permitted Acquisitions” below, (vi) permitted purchase money indebtedness or capital leases in each case permitted to be incurred pursuant to clause (a)(vii) above, (vii) other permitted debt pursuant to a general lien basket in an amount equal to the General Debt Basket, (viii) permitted non-Guarantor subsidiary debt limited to the assets of non-Guarantors, (ix) debt incurred using the Available Amount Basket and (ix) other exceptions and qualifications set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations with incurrence ratios consistent with the debt incurrence ratios above); |
B-16
| c) limitations on fundamental changes;
d) limitations on asset sales (including sales of subsidiaries) and sale and lease back transactions (which, in each case, shall be permitted (i) on the terms set forth under the heading “Permitted Asset Sales” below, (ii) pursuant to an annual dollar basket in an amount equal to the greater of $250 million and 20% of Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available, with amounts not used in any fiscal year carried forward to succeeding fiscal years and (iii) subject to the other exceptions and qualifications set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations);
e) limitations on investments and acquisitions (which shall be permitted on the terms set forth under “Permitted Acquisitions” below and, in addition, permit (i) unlimited investments in the Borrower and the restricted subsidiaries, (ii) investments in connection with the Transactions, (iii) using the Available Amount Basket as set forth and subject to the conditions in the second succeeding paragraph, (iv) to the extent consistent with the Credit Facilities Precedent Documentation, the unused amount of any baskets and/or exceptions permitting dividends or distributions on, or redemptions of, the equity of the Borrower (or any direct or indirect parent company thereof) or prepayments or redemptions of any subordinated indebtedness owed by the Borrower or any Guarantor, (v) additional investments subject only to pro forma compliance with a Total Leverage Ratio of 6.00:1.00 (the “Leverage Based Investment Exception”), (vi) baskets for investments in unrestricted subsidiaries and similar businesses in amounts to be agreed and (vii) other exceptions and qualifications set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations);
f) limitations on dividends or distributions on, or redemptions of the Borrower’s (or any of its direct or indirect parent companies’) equity (which shall permit, among other things, (i) for any taxable period for which Borrower and/or any of its subsidiaries are members of a consolidated, combined or unitary tax group for U.S. federal and/or applicable state, local or foreign income tax purposes, or are disregarded entities that are owned directly (or indirectly through other disregarded entities) by any such members of a consolidated, combined or unitary tax group, in each case for U.S. federal and/or applicable state, local or foreign income tax purposes, of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), distributions in an amount not to exceed the portion of any U.S. federal, state, local or foreign taxes (as applicable) of such Tax Group for such taxable period that are attributable to the income of Borrower and/or its subsidiaries; provided that dividends or distributions made pursuant to this clause (i) shall (I) not exceed the tax liability that Borrower and/or its subsidiaries (as applicable) would have incurred were such taxes determined as if such entity(ies) were a stand-alone taxpayer or a stand-alone group, (II) in respect of any taxes attributable to the income of any unrestricted subsidiaries of Borrower may be made only to the extent that such unrestricted subsidiaries have made cash payments for such purpose to Borrower or its restricted subsidiaries, and (III) be reduced by any amounts paid by Borrower or any of its subsidiaries to the applicable governmental authority in respect of such taxes; (ii) Holdings, the Borrower or any restricted subsidiary may make dividends or distributions in cash |
B-17
| to Holdings to permit Holdings to make, and Holdings may make, Restricted Payments in respect of any “Permitted Tax Receivables Payments”; which shall mean, in respect of a taxable period, cash distributions to the equity holders of Borrower in an aggregate amount that does not exceed the sum of (x) amounts required to be paid (I) pursuant to that certain Tax Receivable Agreement dated as of April 28, 2021, by and among Endeavor Group Holdings, Inc., Endeavor Manager, LLC, Endeavor Operating Company, LLC, the several Exchange TRA Parties (as defined therein), the several Reorganization TRA Parties (as defined therein), Representative (as defined therein), the KKR Representative (as defined therein) and SLP West Holdings, L.L.C., as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time (the “Existing TRA”) and (II) any substantially similar tax receivable agreement among any of the parties to the Existing TRA entered into prior to the Closing Date; provided that no amounts will be paid pursuant to this clause (II) in duplication of tax attributes for which payments were made in respect of clause (I) and (y) without duplication of amounts covered by clause (x), the ordinary course payments payable by an entity the interests of which are subsequently issued or otherwise sold pursuant to an IPO (an “IPO Entity”) pursuant to a customary tax receivable agreement; provided that, for the avoidance of doubt, “ordinary course payments” pursuant to a tax receivable agreement means payments other than (A) any accelerated lump sum amount payable by reason of any early termination of such agreement or otherwise, to the extent such amount exceeds the amount that would have been payable under such tax receivable agreement in the absence of such acceleration or (B) payments after a change in control to the extent in excess of amounts that would have been payable under the tax receivable agreement if there had been no change of control, (iii) for each taxable year for which Borrower is treated as a partnership or disregarded entity that is owned by a partnership for U.S. federal income tax purposes, in an amount equal to the sum of the following amount for each member of Holdings or, without duplication, the parent entity of Holdings (A) the taxable income of the Borrower allocated (or allocable) to (plus any guaranteed payments for U.S. federal income tax purposes taken into account by) such member for the taxable year (in each case, determined after taking into account any tax basis step-up arising from the Transactions, including pursuant to Section 743 or Section 734 of the Code) multiplied by (B) the maximum combined marginal U.S. federal, state and local income tax rate (after taking into account the deductibility of state and local income tax for U.S. federal income tax purposes, deductions permitted under Section 199A of the Code, applicable limitations on the deductibility of items, and the character of the income in question (i.e., long term capital gain, qualified dividend income, etc.)) applicable to any direct (or, where the direct equity holder is a pass-through entity, indirect) equity holder of Holdings for such period; provided that any such distributions shall be reduced by any amounts paid by any of the Borrower, or its subsidiaries to the applicable governmental authority in respect of such taxes; provided, that for the avoidance of doubt, if the actual aggregate U.S. federal, state and/or local income tax liability of the Tax Group attributable to the taxable income of Borrower and all associated tax attributes related thereto exceeds the portion of such distribution allocable to the Tax Group that directly or indirectly owns an interest in Borrower, then the distribution permitted by clause (iii) shall be increased by an amount equal to such excess; provided, further, that any such distributions with respect to any such taxable year may be made in quarterly installments on an estimated basis to |
B-18
| allow such direct (or indirect) equity holders to pay their estimated taxes, with any excess of aggregate quarterly distributions with respect to any such taxable year over the actual amount of distributions permitted for such period reducing any such distributions with respect to the immediately subsequent period (and, to the extent such excess is not fully absorbed in the immediately subsequent period, the following period(s)), (iv) payment of legal, accounting and other ordinary course corporate overhead or other operational expenses of any direct or indirect parent entity and for the payment of franchise or similar taxes required to maintain organizational existence, (v) subject to no continuing payment or bankruptcy event of default, customary distributions necessary to pay advisory, refinancing, subsequent transaction and exit fees, and other overhead expenses of direct and indirect parents of the Borrower attributable to the ownership of the Borrower and its subsidiaries, (vi) dividends, distributions or redemptions with the Available Amount Basket as set forth in the second succeeding paragraph, (vii) a general basket to be agreed, (viii) dividends, distributions or redemptions in connection with the Transactions (including, without limitation, as necessary to allow any parent company to make payments contemplated or otherwise required by the Acquisition Agreement whether at or after the Closing Date), (ix) the repurchase, retirement or other acquisition or retirement for value of equity interests (or any options or warrants or stock appreciation or similar rights issued with respect to any of such equity interests) held by any future, present or former employee, director, officer, consultant or other individual service provider (or any affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) pursuant to any employee, management or director profit interests or equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement with any employee, director, officer, consultant or other individual service provider or otherwise in an amount not to exceed the greater of an amount to be agreed and a corresponding percentage of Consolidated EBITDA, in any fiscal year; provided that any unused portion for any fiscal year may be carried forward to succeeding fiscal years, (x) additional dividends, distributions or redemptions, subject only to (A) pro forma compliance with a Total Leverage Ratio of 5.25:1.00 (the “Leverage Based RP Exception”) (after giving pro forma effect to such dividend, distribution or redemption and based on the Consolidated EBITDA of the Borrower and its restricted subsidiaries for the most recently ended four fiscal quarter period for which financial statements are available) and (B) no payment or bankruptcy event of default, (xi) after a qualified IPO, dividends, distributions or redemptions in an amount, on an annual basis, not to exceed the sum of (a) an amount equal to 7.00% of the net proceeds received by (or contributed to) the Borrower and its restricted subsidiaries from such qualified IPO and any follow on offerings and (b) an amount equal to 8.00% of the market capitalization of Holdings at the time declared and (xii) other exceptions and qualifications set forth in the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations (including, for the avoidance of doubt, any exceptions set forth in the Existing Credit Agreements, including the exceptions with respect to Key Employee Distributions, Partially Management Owned Subsidiaries and EA Entity members (each as defined in the Existing Wildcat Credit Agreement); provided that any discretionary dividends or distributions on, or redemptions pursuant to, clauses (vi), (vii), (ix), (x) and (xi) above shall not be permitted prior to achievement of the TLA/MB Covenant Threshold); |
B-19
| g) limitations on prepayments or redemptions of any subordinated indebtedness owed by the Borrower or any Guarantor to any entity that is not Holdings, the Borrower or any restricted subsidiary (in an aggregate principal amount exceeding the cross acceleration threshold) (“Junior Debt”), in each case consummated earlier than the date that is 12 months prior to the stated maturity date of such Junior Debt, or amendments of the documents governing such Junior Debt in a manner (when taken as a whole) materially adverse to the Lenders (which shall permit, among other things (i) refinancing or exchanges of Junior Debt for like or other junior debt or, other than in the case of subordinated indebtedness, any unsecured debt, (ii) conversion of Junior Debt to common or “qualified preferred” equity, (iii) prepayments or redemptions using the Available Amount Basket as set forth in the second succeeding paragraph, (iv) to the extent consistent with the Credit Facilities Precedent Documentation, the unused amount of any baskets and/or exceptions permitting dividends or distributions on, or redemptions of, the equity of the Borrower (or any direct or indirect parent company thereof) or restricted investments (which such baskets, for the avoidance of doubt, shall be reduced by the amount of such incurrence on a dollar-for-dollar basis) and (v) additional prepayments or redemptions, subject only to pro forma compliance with a Total Leverage Ratio of 5.75:1.00 (the “Leverage Based Junior Debt Exception”) (after giving pro forma effect to such prepayment or redemption) and based on the Consolidated EBITDA of the Borrower and its restricted subsidiaries for the most recently ended four fiscal quarter period for which financial statements are available);
h) limitations on negative pledge clauses; and
i) limitations on transactions with affiliates. | ||
| For the avoidance of doubt, unless expressly specified herein, no negative covenant exception shall be subject to a cap on non-Guarantor indebtedness or investments.
The negative covenants will be subject, in the case of each of the foregoing covenants, to exceptions, qualifications and “baskets” to be set forth in the Credit Facilities Documentation that are substantially consistent with the exceptions, qualifications and “baskets” set forth in Credit Facilities Precedent Documentation, but adjusted to reflect the Documentation Considerations, which shall, for the avoidance of doubt, permit classification and reclassification from time to time by the Borrower among one or more available baskets and exceptions under any such covenants and contain automatic reclassification to ratio-based incurrence exceptions; provided that (x) monetary baskets in the negative covenants will include in a manner consistent with the Credit Facilities Precedent Documentation basket builders based on a percentage of Consolidated EBITDA of the Borrower and its restricted subsidiaries equivalent to the initial monetary amount of each such basket and (y) the amount of any basket usage (including any borrowings under any Revolving Facility or under the Incremental Facilities) or other exception not subject to a ratio test made substantially simultaneously with, or contemporaneously with, any “ratio” test under the Credit Facilities Documentation will be disregarded when determining pro forma compliance with such “ratio.” In addition, certain negative covenants shall include an “Available Amount Basket”, which shall mean a cumulative amount equal to (a) the greater of (1) $600 million and (2) 50% of | ||
B-20
| Consolidated EBITDA for the last four fiscal quarters of the Borrower for which financial statements are available (such greater amount, the “Starter Basket”) plus (b) the greater of (i) 50% of cumulative Consolidated Net Income (to be defined as provided under “Financial Definitions” below) and (ii) cumulative Consolidated EBITDA minus 1.5x cumulative Fixed Charges (as defined in the Credit Facilities Precedent Documentation) (this clause (b), the “Builder Basket”), plus (c) the Declined Amounts plus (d) the portion of net cash proceeds not required to be applied to prepayments pursuant to clause (C) in “Mandatory Prepayments” above as a result of the leverage-based step-downs plus (e) the cash proceeds of new public or private equity issuances of any direct or indirect parent of the Borrower or the Borrower (other than disqualified stock) actually received in the form of qualified equity, plus (f) capital contributions to the Borrower made in cash or cash equivalents (other than disqualified stock) and the fair market value of any in-kind contributions, plus (g) the net cash proceeds received by the Borrower and its restricted subsidiaries from debt and disqualified stock issuances that have been issued after the Closing Date and which have been exchanged or converted into qualified equity, plus (h) returns, profits, distributions and similar amounts received in cash or cash equivalents by the Borrower and its restricted subsidiaries on investments made using the Available Amount Basket (not to exceed the amount of such investments) or otherwise received from an unrestricted subsidiary (including the net proceeds of any sale, or issuance of stock, of an unrestricted subsidiary), plus (i) the investments of the Borrower and the restricted subsidiaries in any unrestricted subsidiary that has been re-designated as a restricted subsidiary or that has been merged or consolidated with or into the Borrower or any of its restricted subsidiaries in an amount equal to the fair market value (as determined in good faith by the Borrower) of the investments of the Borrower and its restricted subsidiaries in such unrestricted subsidiary at the time of such re-designation or merger or consolidation and otherwise defined in a manner consistent with the Credit Facilities Precedent Documentation, after giving effect to the Documentation Considerations. The Available Amount Basket may be used for indebtedness, liens, investments, dividends and distributions and the prepayment or redemption of Junior Debt; provided that use of the Builder Basket for dividends and distributions shall be subject to the absence of any continuing payment or bankruptcy event of default. | ||
| Permitted Asset Sales: | The Borrower or any restricted subsidiary will be permitted to make non-ordinary course of business asset sales or dispositions without limit so long as (a) such sales or dispositions are for fair market value, (b) at least either (x) 75% of the consideration for asset sales and dispositions, calculated over the period since the Closing Date and through the date of such asset sale or disposition, in excess of an amount to be agreed shall consist of cash or cash equivalents or (y) 50% of the consideration for asset sales and dispositions, calculated over the period since the Closing Date and through the date of such asset sale or disposition, in excess of an amount to be agreed shall consist of cash or cash equivalents (in each case, subject to exceptions to be set forth in the Credit Facilities Documentation to be agreed, which shall include a basket in an amount to be agreed for non-cash consideration that may be designated as cash consideration) and (c) to the extent applicable, such asset sale or disposition is subject to the terms set forth in the section entitled “Mandatory Prepayments” hereof. | |
| Permitted Acquisitions: | The Borrower or any restricted subsidiary will be permitted to make acquisitions of the equity interests in a person that becomes a restricted subsidiary, or all or substantially all of the assets (or all or substantially all the assets constituting a business unit, division, product line or line of business) of any person (each, a “Permitted Acquisition”) so long | |
B-21
| as (a) after giving effect thereto, no payment or bankruptcy event of default has occurred and is continuing, (b) the acquired company or assets are in the same or a generally related or ancillary line of business as the Borrower and its subsidiaries and (c) subject to the limitations set forth in “Guarantees” and “Security” above, the acquired company and its subsidiaries (other than any subsidiaries of the acquired company designated as an unrestricted subsidiary as provided in “Unrestricted Subsidiaries” below) will become Guarantors and pledge their Collateral to the Administrative Agent. Acquisitions of entities that do not become Guarantors will not be limited in any additional manner. | ||
| Financial Maintenance Covenant: | With respect to the Term B Facilities and Margin Bridge Facility: None.
With respect to the Term A Facilities and the Revolving Facility: The Credit Facilities Documentation will contain a maximum First Lien Leverage Ratio with regard to the Borrower and its restricted subsidiaries on a consolidated basis (the “Financial Maintenance Covenant”), at a level of (x) prior to the date on which the TLA/MB Covenant Threshold has been achieved, 8.50:1.00, and (y) on and after the date on which the TLA/MB Covenant Threshold has been achieved, 9.50:1.00 (in each case, which First Lien Leverage Ratio shall be appropriately adjusted to reflect any additional original issue discount or upfront fees required to be funded in connection with the “Market Flex Provisions” in the Fee Letter) (and with no step-downs).
The foregoing Financial Maintenance Covenant will be tested with respect to the Borrower and its restricted subsidiaries on a consolidated basis, beginning with the second full fiscal quarter period ending after the Closing Date for which financial statements have been or are required to be delivered, quarterly on the last day of each fiscal quarter ending after the Closing Date for which financial statements have been or are required to be delivered, and on and after the date on which the Initial Term A Facility have been repaid in full, tested only if, on the last day of such fiscal quarter, the aggregate outstanding principal amount of Revolving Loans (excluding for the avoidance of doubt, letters of credit whether or not drawn), exceeds 40% of the total amount of the Revolving Commitments (the “Testing Condition”).
For purposes of determining compliance with the Financial Maintenance Covenant, the Credit Facilities Documentation shall provide for Cure Rights (as defined in the Credit Facilities Precedent Documentation) that are the same as those set forth in the Precedent Credit Agreement (including, without limitation, as set forth in Section 7.02 of the Credit Facilities Precedent Documentation). | |
| Financial Definitions: | The financial definitions in the Credit Facilities Documentation shall be consistent with the equivalent definitions of such terms in the Credit Facilities Precedent Documentation, after giving effect to Documentation Considerations, in each case as modified (a) as reasonably agreed to (i) more accurately reflect the business and financial accounting of the Borrower and its subsidiaries after giving effect to the Transactions and (ii) address technical clarifications adjustments, (b) to include all adjustments and add-backs of the type included in the Sponsor Model (together with all updates and modifications thereto reasonably agreed with the Required Lead Arrangers) or the QofE Report; provided that (i) there shall be an uncapped addition to Consolidated EBITDA for pro forma “run rate” cost savings, operating expense reductions, revenue enhancements and synergies related to the Transactions that are reasonably quantifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken or initiated or are expected to be taken (in the good faith | |
B-22
| determination of the Borrower) before or after the Closing Date, (ii) there shall be an uncapped addition to Consolidated EBITDA for pro forma “run rate” cost savings, operating expense reductions, revenue enhancements and synergies related to acquisitions, dispositions and other specified transactions, restructurings, cost savings initiatives and other initiatives that are reasonably quantifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken or initiated or are expected to be taken (in the good faith determination of the Borrower) before or after such acquisition, disposition or other specified transaction, restructuring, cost savings initiative or other initiative and (iii) addbacks and adjustments at least as favorable to the Borrower as those in the Existing Credit Agreements, (c) to include in the Consolidated EBITDA, Consolidated Total Debt and Available Cash of the Borrower and its restricted subsidiaries, so long as Tiger Holdings remains a Restricted Subsidiary (as such term is defined in the Credit Facilities Precedent Documentation) of the Borrower, a proportional share of the Consolidated EBITDA, Consolidated Total Debt and Available Cash, respectively, of Tiger Holdings and its subsidiaries, based on the proportion of the economic interests in Tiger Holdings and its subsidiaries directly or indirectly owned by the Borrower (it being understood that Consolidated First Lien Debt and Consolidated Secured Debt shall be calculated in a manner consistent with the Credit Facilities Precedent Documentation and shall not include indebtedness of Tiger Holdings and its subsidiaries). It being understood and agreed, for the avoidance of doubt, that all references to a First Lien Leverage Ratio, a Secured Leverage Ratio, a Total Leverage Ratio or an Interest Coverage Ratio, shall be deemed to be references to such ratios as set forth herein without regard to the amount of Consolidated EBITDA used to market and/or syndicate the Credit Facilities. | ||
| Unrestricted Subsidiaries: | The Credit Facilities Documentation will contain provisions pursuant to which, subject to limitations on loans, advances, guarantees and other investments in, unrestricted subsidiaries, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary (other than the Borrower) as an “unrestricted subsidiary” (with any subsidiary of an unrestricted subsidiary constituting an unrestricted subsidiary) and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary so long as, after giving effect to any such designation or re-designation, (a) the fair market value of such subsidiary at the time it is designated as an “unrestricted subsidiary” shall be treated as an investment by the Borrower at such time and (b) no payment or bankruptcy event of default under the Credit Facilities Documentation has occurred or is continuing or would exist after giving effect thereto. Unrestricted subsidiaries will not be subject to the representation and warranties, affirmative or negative covenant or event of default provisions of the Credit Facilities Documentation and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of determining compliance with the financial maintenance covenant contained in the Credit Facilities Documentation. | |
| Events of Default: | The Credit Facilities Documentation will include event of default provisions on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation after giving effect to the Documentation Consideration.
Notwithstanding the foregoing, (i) only lenders holding at least a majority of the Initial Term A Loans and the Revolving Commitments and Revolving Loans shall have the ability to (and be required in order to) amend the Financial Maintenance Covenant and waive a breach of the Financial Maintenance Covenant, (ii) a breach of the Financial Maintenance Covenant shall not constitute an event of default with respect to the Term B | |
B-23
| Facilities or the Margin Bridge Facility or trigger a cross-default under the Term B Facilities or Margin Bridge Facility until the date on which the Revolving Commitments have been terminated or the Initial Term A Loans and the Revolving Loans (if any) have been accelerated by the Initial Term A Lenders and the Revolving Lenders, respectively, in accordance with the terms of the Initial Term A Facility and the Revolving Facility, respectively, (iii) only lenders holding at least a majority of the Initial Term A Loans and Margin Bridge Loans shall have the ability to (and be required in order to) amend the TLA/MB Covenant Threshold and any restriction based thereon (a “TLA/MB Restriction”) and waive a breach of any such TLA/MB Restriction and (iv) a breach of any TLA/MB Restriction shall not constitute an event of default with respect to the Term B Facilities or the Revolving Facility or trigger a cross-default under the Term B Facilities or Revolving Facility until the date on which the Initial Term A Loans and Margin Bridge Loans have been accelerated by the Initial Term A Lenders and the Margin Bridge Lenders, respectively, in accordance with the terms of the Initial Term A Facility and the Margin Bridge Facility. | ||
| Voting: | The Credit Facilities Documentation will include voting provisions on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation after giving effect to Documentation Considerations (including with respect to the inclusion of the Revolving Facility).
Notwithstanding the foregoing, amendments and waivers of the Financial Maintenance Covenant will be subject to the second paragraph under “Events of Default” above. | |
| Cost and Yield Protection: | The Credit Facilities Documentation will include cost and yield protection provisions on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation after giving effect to Documentation Considerations. The Credit Facilities Documentation will include customary provisions with respect to taxes. | |
| Assignments and Participations: | The Credit Facilities Documentation will include assignment and participation provisions (including with respect to affiliates of the Borrower) in accordance with the Documentation Considerations on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation after giving effect to Documentation Considerations. Goldman Sachs shall be permitted to assign its commitments and Term Loans to GSLP (and vice-versa) without any required consents. | |
| Expenses and Indemnification: | The Credit Facilities Documentation will include expense and indemnification provisions on terms and conditions substantially consistent with the Credit Facilities Precedent Documentation after giving effect to Documentation Considerations. | |
| Governing Law and Forum: | New York. | |
| Counsel to the Administrative Agent, Lead Arrangers and Joint Bookrunners: | Davis Polk & Wardwell LLP. | |
B-24
ANNEX I
| Interest Rates: | With respect to the Initial Term B Facility, at the option of the Borrower, Term SOFR plus a margin (the “Applicable Margin”) of 4.00% or ABR plus an Applicable Margin of 3.00%.
From and after the delivery by the Borrower to the Administrative Agent of the financial statements for the first full fiscal quarter of the Borrower completed after the Closing Date, interest rate spreads with respect to the Initial Term B Facility shall be subject to two 25 basis point step-downs at First Lien Leverage Ratios of 4.00:1.00 and 3.50:1.00, respectively (the “Term B Leverage Step-downs”).
In addition, on and after the date of any initial public offering of the Borrower, Holdings, or any parent entity thereof (an “IPO”), the applicable margins at each leverage level in respect of the Initial Term B Facility shall be 25 basis points lower than the Applicable Margins set forth above. | |
| With respect to the Initial Term A Facility, at the option of the Borrower, Term SOFR plus an Applicable Margin of 4.25% or ABR plus an Applicable Margin of 3.25%.
From and after the date on which the TLA Repayment Threshold is achieved, interest rate spreads with respect to the Initial Term A Facility shall be subject to one 50 basis point step-down.
“TLA Repayment Threshold” shall mean the termination of commitments with respect to the Initial Term A Facility and/or repayment of Initial Term A Loans in an aggregate principal amount equal to $2,000 million.
In addition, on and after the date of any IPO, the applicable margins at each leverage level in respect of the Initial Term A Facility shall be 25 basis points lower than the Applicable Margins set forth above. | ||
| With respect to the Margin Bridge Facility, Term SOFR plus an Applicable Margin of 3.75% or ABR plus an Applicable Margin of 2.75%. | ||
| With respect to the Revolving Facility, at the option of the Borrower, Term SOFR plus an Applicable Margin of 3.75% or ABR plus an Applicable Margin of 2.75%.
From and after the delivery by the Borrower to the Administrative Agent of the financial statements for the first full fiscal quarter of the Borrower completed after the Closing Date, interest rate spreads with respect to the Revolving Facility shall be subject to two 25 basis point step-downs at First Lien Leverage Ratios of 4.00:1.00 and 3.50:1.00, respectively.
In addition, on and after the date of any IPO, the applicable margins at each leverage level in respect of the Revolving Facility shall be 25 basis points lower than the Applicable Margins set forth above. | ||
| The Borrower may elect interest periods of 1, 3 or 6 months (or, if agreed by all relevant Lenders, 12 or fewer months or a period of shorter than 1 month) for Term SOFR borrowings. | ||
B-I-1
| 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). | ||
| Interest shall be payable in arrears (a) for loans accruing interest at a rate based on Term SOFR, at the end of each interest period and, for interest periods of greater than 3 months, every three months, and on the applicable maturity date and (b) for loans accruing interest based on the ABR, quarterly in arrears and on the applicable maturity date. | ||
| “ABR” is the Alternate Base Rate, which is the highest of (i) prime commercial lending rate announced by the Administrative Agent as its “prime rate”, (ii) the Federal Funds Effective Rate plus 1/2 of 1.0% and (iii) the one-month Term SOFR plus 1.0% per annum.
“Term SOFR” is the secured overnight financing rate for U.S. dollars for the relevant interest period. For the avoidance of doubt, Term SOFR shall not include a credit spread adjustment. | ||
| There shall be a minimum Term SOFR (i.e., Term SOFR prior to adding any applicable interest rate margins thereto) requirement of 0.00% per annum in respect of the Initial Term Facilities and the Revolving Facility. | ||
| Letter of Credit Fees: | A per annum fee equal to the Applicable Margin related to Term SOFR loans 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 respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be paid to the Administrative Agent for distribution to the Revolving Lenders pro rata in accordance with the amount of each such Revolving Lender’s Revolving Commitment, with exceptions for defaulting lenders. In addition, the Borrower shall pay to each letter of credit issuer, 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, at maturity and upon the termination of the respective letter of credit, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees. | |
| Commitment Fees: | The Borrower shall pay a commitment fee of 0.50% per annum on the average daily unused portion of the Revolving Facility, payable quarterly in arrears, calculated based upon the actual number of days elapsed over a 360-day year. Such fees shall be paid to the Administrative Agent for distribution to the applicable Revolving Lenders pro rata in accordance with the amount of each such Revolving Lender’s applicable Revolving Commitment, with exceptions for defaulting lenders.
From and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements for the first full fiscal quarter of the Borrower completed after the Closing Date, the commitment fee under the Revolving Facility shall be determined by reference to a leverage-based pricing grid with step-downs to 0.375% and 0.25% per annum at First Lien Leverage Ratios of 4.00:1.00 and 3.50:1.00, respectively. | |
B-I-2
| Duration Fees: | The Borrower will pay a duration fee, for the ratable benefit of the Margin Bridge Lenders, in an amount equal to 0.25% of the aggregate principal amount of Margin Bridge Loans outstanding (if any) on each of the dates which 90 days, 180 days, 270 days and 360 days after the Closing Date, due and payable in cash on such day (or, if such day is not a business day, on the next business day). |
B-I-3
EXHIBIT C
Project Wildcat
Margin Loan Facility
Summary of Principal Terms and Conditions3
[Attached]
| 3 | All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Term Sheet is attached, including Exhibits A, B and D thereto. |
C-1
EXHIBIT D
Project Wildcat
Summary of Additional Conditions4
The initial borrowings under the Credit Facilities on the Closing Date are subject solely to the satisfaction or waiver by the Commitment Parties of the applicable conditions set forth in the section entitled Conditions in the body of the Commitment Letter, the section entitled “Conditions to Initial Borrowing” in Exhibit B to the Commitment Letter and the following conditions (subject in all respects to the Limited Conditionality Provisions):
1. Since the date of the Acquisition Agreement, no Material Adverse Effect (as defined in the Acquisition Agreement) shall have occurred and be continuing that would result in the failure of a condition precedent to your obligation to fund the Acquisition under the Acquisition Agreement or that would give you the right (taking into account any notice and cure provisions) to terminate your obligations pursuant to the terms of the Acquisition Agreement.
2. The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowings under the Initial Term Facilities, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or waivers by Buyer (or any of its affiliates) thereto, other than those modifications, amendments, consents or waivers by Buyer (or its affiliate) that are materially adverse to the interests of the Lenders or the Commitment Parties in their capacities as such when taken as a whole (it being understood that any modification, amendment, consent or waiver to the definition of Material Adverse Effect shall be deemed to be materially adverse to the interests of the Lenders and the Commitment Parties), unless consented to in writing by the Required Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned); provided that Required Lead Arrangers shall be deemed to have consented to such amendment, supplement, waiver or modification unless they shall object in writing thereto within three business days of being notified or otherwise becoming aware of such amendment, waiver or modification; provided, further, that any dispositions permitted under the Acquisition Agreement shall not be deemed materially adverse to the interests of the Lenders or the Commitment Parties in their capacities as such, whether taken individually or in the aggregate; provided, further, that any modification, amendment or express waiver or consents by Buyer (or its affiliate) that results in (a) a reduction in the Acquisition Consideration shall not be deemed to be materially adverse to the Lenders or the Commitment Parties if such reduction is applied (i) first to reduce the Equity Contribution to 35% and (ii) thereafter, (I) 65% to reduce the Initial Term A Facility until the amount of commitments in respect of the Initial Term A Facility is $0, and thereafter to reduce the amount of commitments in respect of the Initial Term B Facility and the Margin Bridge Facility and (II) 35% to reduce the Equity Contribution and (b) an increase in the Acquisition Consideration shall not be deemed to be materially adverse to the Lenders or the Commitment Parties if such increase is not funded with indebtedness for borrowed money or disqualified stock of the Borrower or any of its subsidiaries.
3. Confirmation from you that the Equity Contribution shall have been made, or substantially simultaneously with the initial borrowings under the Credit Facilities, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter. It is agreed, understood and acknowledged that the issuance of any Preferred Equity is not a condition to funding the Term Facilities, the Revolving Facility and the Margin Bridge Facility under this Commitment Letter or the Fee Letter.
| 4 | All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Exhibit D is attached, including Exhibits A, B and C thereto. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit D shall be determined by reference to the context in which it is used. |
4. Substantially simultaneously with the initial borrowing under the Term Facilities and the consummation of the Acquisition, the Refinancing shall be consummated.
5. The Lead Arrangers shall have received (a) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, the two most recently completed fiscal years ended at least 120 days prior to the Closing Date and (b) unaudited condensed consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related unaudited condensed consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the last fiscal quarter of the fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were prepared pursuant to the preceding clause (a) and ended at least 60 days before the Closing Date (in the case of this clause (b), without footnotes). The Lead Arrangers hereby acknowledge (x) receipt of the audited financial statements referred to in clause (a) above for the fiscal years ended December 31, 2021, December 31, 2022 and December 31, 2023 and (y) the public filing by the Company with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clause (a) or (b), as applicable, of this paragraph.
6. Subject in all respects to the Limited Conditionality Provisions, all documents and instruments required to create and perfect the Administrative Agent’s security interest in the applicable Collateral shall have been executed (if applicable) and delivered by the applicable Borrower and Guarantors and, if applicable, be in proper form for filing.
7. The Administrative Agent and the Lead Arrangers shall have received all documentation at least three business days prior to the Closing Date and other information about the applicable Borrower and Guarantors that shall have been reasonably requested by the Administrative Agent or Lead Arranger in writing at least 10 business days prior to the Closing Date and that the Administrative Agent and the Lead Arrangers reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act. To the extent a Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (as defined below), each Lender that so requests (which request is made through the Administrative Agent) shall have received a Beneficial Ownership Certification in relation to the Borrower; provided that the Administrative Agent has provided the Borrower a list of each such Lender and its electronic delivery requirements at least five Business Days prior to the Closing Date. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (as defined below), which certification shall be substantially similar in substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers included as Appendix A to the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
8. The closing of the Credit Facilities shall occur on or before the Expiration Date.
9. With respect to any given Credit Facility, (a) the execution and delivery by the applicable Borrower and the Guarantors (if any) of the Credit Facilities Documentation for such Facility (including guarantees by the applicable guarantors) which shall, in each case, be in accordance with the terms of the
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Commitment Letter and the applicable Term Sheets and subject to the Limited Conditionality Provisions and the applicable Documentation Considerations and (b) delivery to the Lead Arrangers of customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation/organization, in each case with respect to the applicable Borrower and the Guarantors (to the extent applicable) and a solvency certificate, as of the Closing Date and after giving effect to the Transactions substantially in the form of Annex I attached to this Exhibit D, of a senior financial executive or officer of the Borrower.
10. All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), shall, upon the initial borrowings under the Initial Term Facilities, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Facilities).
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EXHIBIT D
ANNEX I
Form of Solvency Certificate
[ ], 202[ ]
This Solvency Certificate (this “Certificate”) is delivered pursuant to Section [ ] of the Credit Agreement, dated as of [ ] (as amended as of the date hereof, and as it may be further amended, supplemented or otherwise modified, the “Credit Agreement”), by and among [ ] (the “Borrower”), [ ], the lending institutions from time to time parties thereto and [ ], as the Administrative Agent. Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Credit Agreement.
I, [ ], the [ ] of the Borrower, in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Borrower that as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1. For purposes of this certificate, the terms below shall have the following definitions:
(a) “Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b) “Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(c) “Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
(d) “Will be able to pay their Liabilities as they mature”
For the period from the date hereof through the Maturity Date, the Borrower and its subsidiaries on a consolidated basis taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Borrower and its subsidiaries as reflected in the projected financial statements and in light of the anticipated credit capacity.
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(e) “Do not have Unreasonably Small Capital”
The Borrower and its subsidiaries on a consolidated basis taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern for the period from the date hereof through the Maturity Date. I understand that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the business conducted or anticipated to be conducted by the Borrower and its subsidiaries on a consolidated basis as reflected in the projected financial statements and in light of the anticipated credit capacity.
2. Based on and subject to the foregoing, I hereby certify on behalf of the Borrower that after giving effect to the consummation of the Transactions, it is my opinion that (i) the Fair Value of the assets of the Borrower and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (ii) the Present Fair Salable Value of the assets of the Borrower and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities; (iii) the Borrower and its subsidiaries on a consolidated basis taken as a whole do not have Unreasonably Small Capital; and (iv) the Borrower and its subsidiaries taken as a whole will be able to pay their Liabilities as they mature.
3. In reaching the conclusions set forth in this Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by the Borrower and the Subsidiaries after consummation of the transactions contemplated by the Credit Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
| By: |
| |
| Name: | ||
| Title: [Chief Financial Officer] |
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Exhibit (b)(12)
Execution Version
CONFIDENTIAL
PEV Onshore Holdings 2036 LLC
PEV Offshore Holdings 2014 LP
PEV SB Employee Onshore Aggregator II LLC
PEV SB Employee Offshore Aggregator II LP
c/o Goldman Sachs Asset Management, L.P.
200 West Street
New York, NY 10282
November 12, 2024
WILDCAT EGH HOLDCO, L.P.
c/o Silver Lake Partners
55 Hudson Yards
550 West 34th Street, 40th Floor
New York, NY 10001
Attention: Egon Durban
Project Wildcat
Preferred Equity Commitment Letter
Ladies and Gentlemen:
This letter (together with the exhibits hereto, this “Commitment Letter”) sets forth the commitment of PEV Onshore Holdings 2036 LLC, a Delaware limited liability company, PEV Offshore Holdings 2014 LP, a Cayman Islands exempted limited partnership, PEV SB Employee Onshore Aggregator II LLC, a Delaware limited liability company, and PEV SB Employee Offshore Aggregator II LP, a Cayman Islands exempted limited partnership (each a “Purchaser” and collectively, “we”, “us” or the “Purchasers”), subject to the terms and conditions contained herein, to provide or cause to be provided to Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “you”), a portion of the Preferred Financing to consummate the Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). As used herein, the “Preferred Financing” shall mean $50,000,000 of aggregate preferred equity financing that will be used to consummate such Transactions. Capitalized terms used but not defined in this Commitment Letter shall have the meanings set forth in the Exhibits to this Commitment Letter.
| 1. | Commitment. Each Purchaser hereby commits, severally and not jointly (and for the avoidance of doubt, each and every liability, obligation or other covenant of the Purchasers under this Commitment Letter shall be solely on a several and not joint basis among the Purchasers), subject to the terms and conditions set forth herein, that, at (and subject to) the closing of the Acquisition (“Closing”), it shall provide or shall cause to be provided to Buyer, in exchange for a preferred equity interest in Endeavor Group Holdings, Inc. (“Issuer”), to be issued on the terms set forth on Exhibit B, for its respective amount of the Preferred Financing as set forth opposite the Purchaser’s name in Schedule A hereto, for an aggregate amount equal to $50,000,000 (the “Commitment”). |
“Ratings Event” means the receipt by the Issuer of a credit rating or an advisory or prospective credit rating from Moody’s Investor Service, Inc. and S&P Global Ratings Inc. of B1 (or better) or B+ (or better), respectively, which ratings give effect to all indebtedness and preferred equity interests expected to be incurred or be outstanding at Closing (including the Commitment).
| 2. | Information. You hereby represent and warrant that (a) all written information and written data (such information and data, other than (i) estimates, forecasts and other projections (the “Projections”) and (ii) information of a general economic or industry specific nature, the “Information”) (in the case of Information regarding the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge), that has been or will be made available to the Purchasers directly or indirectly by you, the Target or by any of your or its subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby, when taken as a whole and together with the reports and other information filed by the Target or any of its subsidiaries with the Securities and Exchange Commission (including the risk factors therein), is or will be, when furnished, correct in all material respects and does not or will not, when furnished and when taken as a whole, 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 (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections that have been or will be made available to the Purchasers by you or by any of your subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby have been, or will be, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so furnished to the Purchasers; it being understood that the Projections are as to future events and are not to be viewed as facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that, if at any time prior to the closing of the Acquisition and the funding of the Preferred Financing (the “Closing Date”), you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations and warranties were being made, at such time, then you will (or, with respect to the Information and Projections relating to the Target and its subsidiaries, will use commercially reasonable efforts to) promptly supplement the Information and the Projections such that such representations and warranties are correct in all material respects under those circumstances (or, in the case of the Information relating to the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge, such representations and warranties are correct in all material respects under those circumstances). |
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| 3. | Closing Payments. As consideration for the Commitment hereunder, Issuer agrees, if and only if the Closing of the portion of the Preferred Financing for which the Purchasers have provided a Commitment and the Transactions occur, to pay, or cause to be paid, to the Purchasers a non-refundable closing payment as set forth on Annex I (the “Closing Payment”), which the Purchasers may elect to receive via net funding. |
| 4. | Conditions. The Commitment of the Purchasers hereunder shall be subject solely to the occurrence of the Ratings Event and the conditions expressly set forth in Exhibit C to this Commitment Letter (the “Funding Conditions”), and upon satisfaction (or waiver by the Purchasers in accordance with this Commitment Letter) of such conditions, the initial funding of the Commitment of the Purchasers shall occur; it being understood that there are no conditions (implied or otherwise) to the commitment hereunder, including compliance with the terms of this Commitment Letter other than the Funding Conditions that are expressly stated to be conditions to the issuance and sale of the Preferred Equity on the Closing Date. |
Notwithstanding anything to the contrary in this Commitment Letter (including each of the Exhibits attached hereto) or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties relating to you or the Target or your or their respective subsidiaries or businesses or otherwise, the accuracy of which shall be a condition to the funding of the Preferred Financing on the Closing Date shall be (a) such of the representations and warranties (if any) made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the Purchasers in their capacity as such, but only to the extent that you (or your affiliate) have the right (taking into account any applicable notice and cure provisions) to terminate your (and/or their) obligations under the Acquisition Agreement or decline to consummate the Acquisition or otherwise results in a failure of a condition precedent in the Acquisition Agreement (in each case, in accordance with the terms thereof) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and (b) the Specified Representations (as defined below) made by the Issuer in the Preferred Equity Documentation, and (ii) the terms of the Preferred Equity Documentation and the Closing Deliverables (as defined in Exhibit C to this Commitment Letter) shall be in a form such that they do not impair the issuance of the Preferred Equity on the Closing Date assuming the Funding Conditions are satisfied (or waived in writing by the Purchasers in their sole discretion). For purposes hereof, “Specified Representations” means the applicable representations and warranties of Issuer to be set forth in the Preferred Equity Documentation relating to organizational corporate existence of Issuer as of the Closing Date; tax status of the Issuer as a corporation; power and authority, due authorization, execution, delivery and enforceability, in each case, related to, the issuance of the Preferred Financing and performance of the applicable definitive documentation related to the Preferred Financing; and the issuance of the Preferred Financing does not conflict with the organizational documents of Issuer, or any preemptive rights, rights of first refusal or rights of first offer (or similar rights) applicable to the Preferred Financing, in each case, after giving effect to any written waivers obtained from any persons having such rights; solvency as of the Closing Date (after giving effect to the Transactions) of the Issuer and its subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is determined in the solvency certificate to be delivered in the form set forth in Annex II); the Investment Company Act; the use of proceeds of the issuance and sale of the Preferred Financing not violating the PATRIOT Act (as defined below), OFAC or FCPA; valid issuance of the Preferred Equity and that the Preferred Equity is fully paid and
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non-assessable; and status of the Preferred Equity as senior in payment priority and liquidation preference to all equity of the Issuer. This paragraph, and the provisions herein, shall be referred to as the “Limited Conditionality Provisions”.
| 5. | Limitation on Liability; Indemnity; Settlement. |
| a. | Limitation on Liability. |
Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person or Related Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of you (or any of your subsidiaries), the Investors (or any of their respective affiliates), the Target (or any of its subsidiaries or affiliates), any Indemnified Person or any Related Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Transactions (including the Preferred Financing and the use of proceeds thereunder), or with respect to any activities related to the Preferred Financing, including the preparation of this Commitment Letter and the definitive documentation of the Preferred Financing; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party with respect to which the applicable Indemnified Person is entitled to indemnification under subsection (b) of this Section 5.
| b. | Indemnity. |
To induce the Purchasers to enter into this Commitment Letter and to proceed with the definitive documentation of the Preferred Financing, you agree to indemnify and hold harmless the Purchasers, each of their respective affiliates and the Purchasers’ and each of their respective affiliates’ officers, directors, employees, agents, partners, owners, controlling persons, advisors, attorneys and other representatives of each of the foregoing and their successors and permitted assigns under this Commitment Letter (each, an “Indemnified Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable and documented or invoiced out-of-pocket fees and expenses, joint or several, to which any such Indemnified Person may become subject to the extent arising out of, resulting from, or in connection with any actual or threatened claim, litigation, investigation or proceeding (including any inquiry or investigation) in connection with this Commitment Letter (including Exhibit B hereto (the “Term Sheet”)), the Transactions or any related transaction contemplated hereby or thereby, the Preferred Financing or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates or creditors or any other third person, and to promptly reimburse after receipt of a written request, each such
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Indemnified Person for any reasonable and documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all such Indemnified Persons, taken as a whole and, if necessary, by a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such 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 notifies you of the existence of such conflict and thereafter retains its own counsel, by another firm of counsel for such affected Indemnified Person) or other reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to, or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as defined below) (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any Related Indemnified Person under this Commitment Letter (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding solely between or among Indemnified Persons not arising from any act or omission by you or any of your affiliates. The foregoing provisions in this paragraph shall be superseded, in each case, to the extent covered thereby by the applicable provisions contained in the definitive documentation of the Preferred Financing upon execution and delivery thereof and thereafter shall have no further force and effect.
“Related Indemnified Person” of an Indemnified Person means (1) any controlling person or any affiliate of such Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or any of its affiliates and (3) the respective agents, advisors, attorneys and representatives of such Indemnified Person or any of its controlling persons or any of its affiliates, in the case of this clause (3), acting at the instructions of such Indemnified Person, controlling person or such affiliate (it being understood and agreed that any agent, advisor or representative of such Indemnified Person or any of its controlling persons or any of its affiliates engaged to represent or otherwise advise such Indemnified Person, controlling person or affiliate in connection with the Transactions shall be deemed to be acting at the instruction of such person).
| c. | Settlement. |
You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 5.
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You shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed) (it being understood that the withholding of consent due to non-satisfaction of any of the conditions described in clauses (i), (ii) and (iii) of this sentence shall be deemed reasonable), 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 (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings, (ii) does not include any statement as to or any admission of fault, culpability, wrong doing or a failure to act by or on behalf of any Indemnified Person and (iii) contains customary confidentiality provisions with respect to the terms of such settlement. Each Indemnified Person shall be severally obligated to refund or return any and all amounts paid by you under this Section 5 to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
| 6. | Confidentiality. You agree that you will not disclose, directly or indirectly, prior to your acceptance hereof, this Commitment Letter, the Term Sheet, the other exhibits and attachments hereto or the contents of each thereof, or the Purchasers’ activities pursuant hereto or thereto, to any person or entity without the prior written approval of the Purchasers (such approval not to be unreasonably withheld, delayed or conditioned), except (a) to the Investors (as defined in Exhibit A) and to any of your or the Investors’ affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors, controlling persons and equity holders and to actual and potential co-investors who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Purchasers consent in writing to such proposed disclosure or (c) pursuant to an order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof prior to disclosure); provided that (i) you may disclose this Commitment Letter and the contents hereof (other than with respect to Section 3 hereof and information with respect to fees, compensation or discounts within the Term Sheet) to the Target, its subsidiaries and affiliates and its and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter and its contents (including the Term Sheet and other exhibits and attachments hereto) (but not the contents of Section 3 hereof or information with respect to fees, compensation or discounts within the Term Sheet) in any syndication or other marketing materials in connection with the Credit Facilities (as defined in Exhibit A) and Margin Bridge Facility (as defined in Exhibit A) (including any marketing materials and information memorandum used in connection therewith), (iii) you may disclose the aggregate fee amounts contained in this Commitment Letter as part of 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 any marketing materials or in connection with the Credit Facilities or in connection with any public or regulatory filing requirement relating to the Transactions (and then only to the extent aggregate with all other fees and expenses of the |
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| Transactions and not presented as an individual line item unless required by applicable law, rule or regulation), (iii) you may disclose the Term Sheet and other exhibits and attachments to the Commitment Letter, and the contents thereof, to potential co-investors and to rating agencies in connection with obtaining public ratings for the Borrower (as defined in Exhibit A) and the Credit Facilities, (iv) you may disclose this Commitment Letter and the contents thereof (including the Term Sheet and other exhibits and attachments hereto) to the initial lenders and any prospective lenders under the Credit Facilities and Margin Bridge Facility, the custodian and the transfer agent in connection with the Margin Loan facility, any additional prospective investor in the Preferred Financing and to any such person’s affiliates and their respective officers, directors, employees, agents, attorneys, accountants and other advisors, on a confidential and need-to-know basis and (v) in connection with any remedy or enforcement of any right hereunder. |
The Purchasers and each of their respective affiliates will use all non-public information provided to them or such affiliates by or on behalf of you hereunder or in connection with the Acquisition and the related Transactions solely for the purpose of negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided that nothing herein shall prevent the Purchasers and each of their respective affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule, regulation or compulsory legal process or as deemed necessary or advisable in light of ongoing review or oversight by a regulatory or governmental authority with jurisdiction over the Purchasers or GS Affiliate, in each case based on the reasonable advice of counsel, including in house counsel, (in which case the Purchasers agree (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction, or purporting to have jurisdiction, over the Purchasers or any of their respective affiliates (in which case the Purchasers agree (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Purchasers or any of their respective Related Parties (as defined below) in violation of any confidentiality obligations owing to you, the Investors, Issuer, the Target or any of your or their respective subsidiaries and affiliates, (d) to the extent that such information is or was received by the Purchasers or any of their respective Related Parties from a third party that is not, to the Purchasers’ knowledge, subject to contractual or fiduciary confidentiality obligations owing to you, the Investors, Issuer, the Target or any of your or their respective subsidiaries and affiliates, (e) to the extent that such information is independently developed by the Purchasers or any of their respective Related Parties without the use of any confidential information, (f) to the Purchasers’ affiliates and to the Purchasers’ and each of their respective employees, officers, partners, directors, legal counsel, independent auditors, rating agencies, professionals and other experts or agents and existing and prospective limited partners and financing sources
7
who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations and who have been advised of their obligation to keep information of this type confidential (collectively, the “Related Parties”), with the Purchasers, to the extent within their control, responsible for such person’s compliance with this paragraph, (g) to the extent you consent in writing to any specific disclosure or (h) to the extent such information was already in the Purchasers’ (or a GS Affiliate’s (as defined below)) possession prior to any duty or other understanding of confidentiality entered into in connection with the Transactions. In the event that the Preferred Financing is funded, the Purchasers and each of their respective affiliates’, if any, obligations under this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the definitive documentation of the Preferred Financing upon the initial funding thereunder to the extent that such provisions are binding on the Purchasers.
Subject to the immediately preceding sentence, the confidentiality provisions set forth in this Section 6 shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.
| 7. | Absence of Fiduciary Relationship. The Purchasers, together with each of their respective affiliates (collectively, the “Sponsor Entities”), is a financial investment firm and as such from time to time may effect transactions for their own account, including financing, investment and acquisition transactions, and hold long or short positions in debt or equity securities or loans of companies that may be the subject of the transactions contemplated hereby. You also acknowledge that the Sponsor Entities have no obligation to use in connection with the transactions contemplated hereby, or to furnish to you, confidential information obtained from other companies or other persons. The Sponsor Entities may have economic interests that conflict with your economic interests and those of the Target. You acknowledge and agree that (a)(i) the agreements described herein regarding the Preferred Equity are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Purchasers, on the other hand, that do not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Sponsor Entities, and (ii) you will not assert, to the fullest extent permitted by law, any claims that you may have against the Purchasers or any of their respective affiliates for alleged breach of fiduciary duty arising by virtue of this Commitment Letter and (b) in connection with the transactions contemplated hereby, none of the Sponsor Entities have any obligation to you or your affiliates, except those obligations of the Purchasers expressly set forth in this Commitment Letter and in any other written and executed agreement with you or any of your affiliates. |
| 8. | Miscellaneous. This Commitment Letter and the commitment hereunder shall not be assignable by any party hereto (other than, without the consent of any person or entity, (i) any assignment occurring as a matter of law pursuant to, or otherwise substantially simultaneously with, the Acquisition on the Closing Date, in each case to the Target, Merger Sub or the Issuer, (ii) by you to (a) Target, Merger Sub or the Issuer substantially simultaneously with the Acquisition on the Closing Date or (b) a U.S. domestically organized entity, in each case, so long as such entity is, or will be, controlled by you or the Investors after giving effect to the Transactions and shall (directly or indirectly through one or more wholly-owned subsidiaries) own the Target and the Issuer and agrees to be bound by the terms hereof or (iii) by the Purchasers to (x) The Goldman Sachs Group, Inc. or any subsidiary thereof, including |
8
| Goldman Sachs Asset Management, L.P. or its affiliates, and/or (y) funds, investors, entities, accounts or vehicles that are managed, sponsored or advised by any Person described in clause (x) (in each case of clauses (x) and (y), excluding any portfolio company thereof) (collectively, “GS Affiliates”), in each case, who shall agree to be bound by the terms hereof) without the prior written consent of each other party hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent shall be null and void). For the avoidance of doubt, without the consent of any person or entity, each Purchaser shall be permitted to reallocate, sell, assign or otherwise transfer all or any portion of such Purchaser’s Commitment and its commitments hereunder to (I) any other Purchaser party hereto and/or (II) any GS Affiliate. This Commitment Letter and the commitment hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons) and do not and are 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 set forth herein). The Purchasers reserve the right to employ the services of each of their respective affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to each of their respective affiliates or branches certain fees payable to the Purchasers in such manner the Purchasers and each of their respective affiliates or branches may agree in their sole discretion, and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of the Purchasers hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Purchasers and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed 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 transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. All Electronic Signatures (including, without limitation, facsimile or .pdf) on or associated with any communication shall be valid and binding on the applicable signatory to the same extent as a manual, original signature, and that any communication entered into by Electronic Signature, will constitute such signatory’s legal, valid and binding obligation enforceable against such signatory in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered to the other signatories. This Commitment Letter (including the exhibits hereto), together with any other letter agreement entered into with the Purchasers on or prior to the date hereof, (i) are the only agreements that have been entered into among the parties hereto with respect to our commitment with respect to the Preferred Financing and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Preferred Financing and sets forth the entire understanding of the parties hereto with respect thereto. For the avoidance of doubt, all issuances of Preferred Equity shall be of the same class of preferred equity and subject to the same Stated Value, Preferred Dividend Rate, timing of payment of dividends and definition of Redemption Price with respect to such share of Preferred Equity. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER, OR RELATED TO, THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided that, notwithstanding the foregoing, it is understood and agreed that (a) the interpretation of the |
9
| definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) (and whether or not a Material Adverse Effect has occurred), (b) the determination of the accuracy of any Specified Acquisition Agreement Representation and whether as a result of any inaccuracy thereof you (or your affiliate) have the right (taking into account any applicable cure provisions) to terminate your obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, in each case shall be governed by, and construed in accordance with, the laws of the State of Delaware as applied to the Acquisition Agreement, without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware. |
The Purchasers or each of their respective affiliates 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 it may choose, and circulate similar promotional materials, in each case, after the Closing Date, in the form of “tombstone” or otherwise describing the name of the Issuer and the amount, type and closing date of the Transactions, all at the expense of the Purchasers or affiliate.
Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement (except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws relating to or affecting the rights of creditors generally) with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Preferred Equity Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the commitment provided hereunder is subject solely to conditions precedent as expressly provided herein.
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 OR PROVIDING OF COMMITMENT, AS THE CASE MAY BE, HEREUNDER.
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 New York County in the State of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined 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 or the transactions contemplated hereby or thereby in any New York State or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum
10
to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such suit, 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. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.
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”), the Purchasers may be required to obtain, verify and record information that identifies the Issuer and its subsidiaries, which information may include their names, addresses, tax identification numbers and other information that will allow the Purchasers to identify the Issuer and its subsidiaries in accordance with the PATRIOT Act or the Beneficial Ownership Regulation, as applicable. This notice is given in accordance with the requirements of the PATRIOT Act or the Beneficial Ownership Regulation, as applicable, and is effective for the Purchasers.
The survival, indemnification, compensation (if applicable), reimbursement (if applicable), jurisdiction, governing law, venue, waiver of jury trial and confidentiality provisions contained herein shall remain in full force and effect regardless of whether the Preferred Financing shall have been issued and notwithstanding the termination or expiration of this Commitment Letter or the Purchasers’ Commitment hereunder; provided that your obligations under this Commitment Letter shall automatically terminate and be superseded by the provisions of the definitive documentation relating to the Preferred Equity (to the extent covered therein) 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 Purchasers’ Commitment with respect to the Preferred Financing (or any portion thereof) hereunder at any time subject to the provisions of the preceding sentence; provided, that in exercising any such election to terminate the commitment (in whole or in part, as applicable) you concurrently exercise a termination of an equal amount of the commitment under that other certain preferred equity commitment letter, dated on or about the date hereof, entered into by one or more GS Affiliates for an aggregate amount of $50 million.
Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.
| 9. | Each Purchaser represents that (i) it is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the SEC under the Securities Act, as presently in effect and (ii) it is able to fend for itself, can bear the economic risk of its investment in the Preferred Financing, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Preferred Financing. |
| 10. | Effectiveness; Expiration. If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter by returning to the Purchasers (or their legal counsel on behalf of the Purchasers), executed counterparts hereof not later than 11:59 p.m., New York City time, on November 12, 2024. The Purchasers’ Commitment and obligations hereunder will expire at such time in the event that the Purchasers (or their legal |
11
| counsel) have not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter at or prior to such time, we agree to hold our commitment to provide the Preferred Financing and our other undertakings in connection therewith available for you until the earliest of (i) after execution and delivery of the Acquisition Agreement and prior to the consummation of the Transactions, the termination of the Acquisition Agreement by you (or your affiliate) or with your (or your affiliate’s) written consent in accordance with its terms (other than with respect to provisions therein that expressly survive termination), (ii) the consummation of the Acquisition without the issuance by the Issuer of the Preferred Financing and (iii) 11:59 p.m., New York City time on the date that is five business days after the Outside Date (as defined in and as may be extended pursuant to the Acquisition Agreement as in effect as of the date hereof (such earliest time, the “Expiration Date”). Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitment of the Purchasers hereunder shall automatically terminate unless the Purchasers shall, in their sole discretion, agree to an extension in writing. The termination of any Commitment pursuant to this paragraph will not prejudice your rights and remedies in respect of any breach or repudiation of this Commitment Letter. |
12
| Sincerely, | ||
| PEV ONSHORE HOLDINGS 2036 LLC | ||
| By: Goldman Sachs Asset Management, L.P., its investment manager | ||
| By: | /s/ Anthony Mirabile | |
| Name: | Anthony Mirabile | |
| Title: | Authorized Signatory | |
| PEV OFFSHORE HOLDINGS 2014 LP | ||
| By: Goldman Sachs Asset Management, L.P., its investment manager | ||
| By: | /s/ Anthony Mirabile | |
| Name: |
Anthony Mirabile | |
| Title: |
Authorized Signatory | |
| PEV SB EMPLOYEE OFFSHORE AGGREGATOR II LP | ||
| By: Goldman Sachs Asset Management, L.P., its investment manager | ||
| By: | /s/ Anthony Mirabile | |
| Name: |
Anthony Mirabile | |
| Title: |
Authorized Signatory | |
| PEV SB EMPLOYEE ONSHORE AGGREGATOR II LLC | ||
| By: Goldman Sachs Asset Management, L.P., its investment manager | ||
| By: | /s/ Anthony Mirabile | |
| Name: |
Anthony Mirabile | |
| Title: |
Authorized Signatory | |
Agreed and accepted as of the date first written above:
| WILDCAT EGH HOLDCO, L.P. | ||
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | Silver Lake Technology Associates VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ Chip Schroeder | |
| Name: | Chip Schroeder | |
| Title: | Managing Director | |
Schedule A
Project Wildcat
Commitments
| Purchaser |
Commitment | Commitment Share | ||||||
| PEV Onshore Holdings 2036 LLC |
$ | 22,618,750.00 | 45.2375 | % | ||||
| PEV Offshore Holdings 2014 LP |
$ | 24,860,000.00 | 49.7200 | % | ||||
| PEV SB Employee Onshore Aggregator II LLC |
$ | 1,813,850.00 | 3.6277 | % | ||||
| PEV SB Employee Offshore Aggregator II LP |
$ | 707,400.00 | 1.4148 | % | ||||
|
|
|
|
|
|||||
| Total |
$ | 50,000,000.00 | 100 | % | ||||
|
|
|
|
|
|||||
A-1
Exhibit A
Project Wildcat
Transaction Description
Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) or in the debt commitment letter dated as of the date hereof (the “Debt Commitment Letter”). In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit A shall be determined by reference to the context in which it is used.
Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “Holdco Parent”) and Wildcat OpCo Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“OpCo Parent”), were formed at the direction of Silver Lake Partners and its affiliates (collectively, with the funds partnerships, co-investment entities and other investment vehicles managed, advised or controlled thereby or by one or more directors thereof or under common control therewith, “Silver Lake” or “Sponsor”). Pursuant to an Agreement and Plan of Merger, dated as of the date hereof (together with all exhibits, schedules and other disclosure letters thereto, collectively, as amended, the “Acquisition Agreement”), by and among Holdco Parent, OpCo Parent, Wildcat PubCo Merger Sub, Inc., a corporation organized under the laws of the State of Delaware and wholly-owned subsidiary of Holdco Parent (“Company Merger Sub”), Wildcat OpCo Merger Sub, L.L.C., a limited liability company organized under the laws of the State of Delaware and wholly-owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Company Merger Sub, the “Merger Subs” and each, a “Merger Sub” and the Merger Subs, together with Holdco Parent and OpCo Parent, the “Buyer Entities”), a company previously identified to us and code-named “Wildcat” (the “Company” or the “Target”), and a subsidiary of the Company (the “OpCo” and, together with the Company, the “Company Entities” and each, a “Company Entity”), (i) Company Merger Sub will merge with and into the Target (the “Company Merger”), with the Target being the surviving entity of the Company Merger and (ii) OpCo Merger Sub will merge with and into the OpCo (the “OpCo Merger” and, together with the Company Merger, the “Mergers”), with the OpCo being the surviving entity of the OpCo Merger, whereby (A) Holdco Parent will acquire, directly or indirectly, the equity interests of the Company from the equity holders thereof (collectively, the “Company Sellers”) and, indirectly, the equity interests of OpCo owned by the Company and (B) OpCo Parent will acquire certain equity interests of the OpCo from the equity holders thereof (collectively, the “OpCo Sellers” and, together with the Company Sellers, the “Sellers”). Other than certain Sellers who may be given the opportunity to retain, rollover or reinvest capital stock, restricted stock units, profits interests and/or options into OpCo and/or the Company (including certain members of the management of the Company and its subsidiaries) (the “Rollover Investors”), the Sellers will receive cash (the “Acquisition Consideration”) in exchange for their capital stock, restricted stock units, profits interests and/or options in the Company Entities. Immediately after giving effect to the Mergers and the other Transactions, the Company will be a wholly-owned direct subsidiary of Holdco Parent and OpCo will be owned, collectively, directly or indirectly, by the Rollover Investors, Holdco Parent and OpCo Parent.
A-1
In connection with the foregoing, it is intended that:
| a) | The Issuer will issue newly issued shares of a class of preferred equity with an initial stated value of $1,000 per share (such shares the “Preferred Equity”) and in an aggregate initial stated value of up to $750 million (the “Preferred Equity Issuance”). |
| b) | The Sponsor and certain other investors (including certain Rollover Investors) arranged by and/or designated by the Sponsor (collectively with the Sponsor, the “Investors”) will directly or indirectly make (X) cash equity contributions to the Buyer Entities (the foregoing cash equity contributions to the Buyer Entities, the “Common Equity Contribution” and, together with the Preferred Equity Issuance, collectively the “Equity Contribution”), in an aggregate amount equal to, when combined with the fair market value of any capital stock or other equity interests of any of the Rollover Investors rolled over or invested in connection with the Transactions (as defined below) and the proceeds of the Preferred Equity Issuance, at least 35.0% of the sum of (1) the aggregate gross proceeds of the Facilities borrowed on the Closing Date, excluding the aggregate gross proceeds of (A) any Loans (as defined in the Debt Commitment Letter) to fund original issue discount and/or upfront fees in connection with the exercise of the “Market Flex Provisions” under the Fee Letter (as defined in the Debt Commitment Letter) and (B) any Revolving Loans (as defined in the Debt Commitment Letter) to fund any working capital needs on the Closing Date and (2) the equity capitalization of the Borrower and its subsidiaries on the Closing Date after giving effect to all of the Transactions (such sum of clauses (1) and (2), the “Total Capitalization”) and (Y) the Common Equity Contribution, in an aggregate amount equal to, when combined with the fair market value of any capital stock or other equity interests of any of the Rollover Investors rolled over or invested in connection with the Transactions, at least 30.0% of the Total Capitalization (the “Minimum Common Equity Contribution”); provided that, if applicable, to the extent any stockholder or other equity holder of the Target has exercised appraisal rights in connection with the Transactions, then on the Closing Date the Investors may elect to issue one or more equity commitment letters and/or arrange for one or more letters of credit to be issued on their behalf in an aggregate amount not less than the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the shares or other equity interests subject to such appraisal rights (the “Appraisal Shares”) and, for purposes of this Commitment Letter, an aggregate amount of such equity commitment letters and/or letters of credit up to, but not in excess of, the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the Appraisal Shares shall be included in the amount and percentage of the Equity Contribution from and after the Closing Date as if such amount was funded in cash (with it being understood that, on or prior to the date of the final resolution of all such appraisal rights, the lesser of (a) the amount necessary to satisfy such appraisal rights in full and (b) an amount equal to the full amount committed under such equity commitment letters and/or the face value of any such letters of credit shall be funded, directly or indirectly, in cash to a newly formed limited liability company organized under the laws of the United States or any state thereof and an indirect subsidiary of the Target that is the borrower under the Revolving Facility and the Initial Term Facilities (the “Borrower”) in the form of common equity or preferred equity that ranks junior or pari passu to the Preferred Equity such that the aggregate initial stated value of Preferred Equity issued shall not exceed $750 million); provided, further that, the Sponsor will control a majority of the voting equity of the Issuer as of the Closing Date. |
A-2
| c) | The Borrower will obtain (i) up to $4,250 million under a senior secured term loan A- facility (the “Initial Term A Facility”) described in the Debt Commitment Letter, (ii) up to $2,750 million under a senior secured term loan B facility described in the Debt Commitment Letter (the “Initial Term B Facility”), (iii) up to $250 million under a senior secured revolving credit facility described in the Debt Commitment Letter (the “Revolving Facility”) and (iv) a senior secured 364-day term loan facility described in the Debt Commitment Letter (the “Margin Bridge Facility” and, collectively with the Initial Term A Facility and the Initial Term B Facility, the “Initial Term Facilities”; the Initial Term Facilities and the Revolving Facility, collectively, the “Credit Facilities”) in an aggregate principal amount of up to (A) $1,500 million minus (B) the aggregate principal amount of any loans funded under the Margin Bridge Facility on the Closing Date. |
| d) | The Margin Loan Borrower (as defined in the definitive documentation for the Margin Loan Facility) will seek to obtain up to $1,500 million under a margin loan facility described in the Debt Commitment Letter (the “Margin Loan Facility” and, together with the Credit Facilities, the “Facilities”). |
| e) | All principal, accrued, but unpaid interest, fees and other amounts (other than contingent obligations not then due and payable) outstanding on the Closing Date under the First Lien Credit Agreement, dated as of May 6, 2014 (as amended and restated by Amendment No. 5, dated as of May 18, 2018, and as further amended, supplemented or otherwise modified from time to time, the “Existing Wildcat Credit Agreement” and, together with the Existing Tiger Credit Agreement, the “Existing Credit Agreements”), by and among the WME IMG Holdings, LLC, William Morris Endeavor Entertainment, LLC, as borrower, IMG Worldwide Holdings, LLC, as co-borrower, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the other parties thereto, shall be repaid in full in connection with, and substantially concurrently with the closing of, the Transactions, and all commitments to lend and guarantees and security in connection therewith shall have been terminated and/or released or customary arrangements for such termination and/or release have been agreed upon with the administrative agent (the “Refinancing”). |
| f) | The proceeds of the Equity Contribution (including the Preferred Equity Issuance), the Facilities and/or a portion of the cash on hand at the Target and its subsidiaries on the Closing Date will be applied to pay (i) the Acquisition Consideration, (ii) the Refinancing and (iii) the fees and expenses incurred in connection with the Transactions (such fees and expenses, the “Transaction Costs”, and the amounts set forth in clauses (i) through (iii) above, collectively, the “Acquisition Funds”). |
The transactions described above (including the payment of Transaction Costs) are collectively referred to herein as the “Transactions”.
A-3
Exhibit B
Project Wildcat
Preferred Equity
Summary of Principal Terms and Conditions
| Issuer: |
Endeavor Group Holdings, Inc. (the “Issuer”) | |
| Purchasers of the Preferred Equity: | PEV Onshore Holdings 2036 LLC, PEV Offshore Holdings 2014 LP, PEV SB Employee Onshore Aggregator II LLC, and PEV SB Employee Offshore Aggregator II LP (each a “Purchaser” and collectively, the “Purchasers”). | |
| Preferred Equity to be Purchased: | Up to an aggregate amount of 50,000 shares of a single class of Series A Preferred Stock of the Issuer (the “Preferred Equity”), with the Stated Value (as defined below) of $1,000 per share and an initial aggregate Stated Value of up to $50.0 million.
The Purchased Shares shall form and be part of a single series of Preferred Equity of up to an aggregate of 750,000 shares of Preferred Equity to be issued on the Issue Date pursuant to an existing commitment letter entered into by the Issuer and two purchasers thereof (the “Existing Purchasers”). | |
| OpCo Preferred Equity: | On the Issue Date (as defined below), Endeavor Operating Company LLC (“EOC”) shall issue to Endeavor Manager, LLC (“Manager”) or reclassify existing common units of EOC held by Manager into, in each case, a single class of preferred equity units of EOC (the “Mirror Units”), with the foregoing resulting in Mirror Units in the same number, amount of initial stated value and which shall otherwise have economic terms consistent with that of the Preferred Equity. Any proceeds attributable to the Mirror Units received by the Manager shall be applied on a dollar for dollar basis to redeem the Preferred Equity and the Mirror Units may not at any time be transferred by the Manager. | |
| Ranking: | The Preferred Equity, with respect to dividend rights and rights upon the Issuer’s liquidation, winding up or dissolution, will rank senior to all other equity interests of the Issuer. | |
| Issue Date: | If the Closing of the portion of the Preferred Financing for which the Purchasers have provided a Commitment occurs, the Preferred Equity to be purchased by the Purchasers will be issued on the closing date of the Acquisition (such date of issuance, the “Issue Date”), conditioned upon the occurrence of the Ratings Event and the satisfaction or waiver by Purchasers of the conditions set forth in Exhibit C. | |
B-1
| Dividends: | Dividends will accrue and accumulate on a daily basis in arrears from the Issue Date at an annual rate equal to the Preferred Dividend Rate (as defined below) on the Stated Value of the Preferred Equity outstanding from time to time, whether or not declared and paid, and if not declared and paid, will accrue and be compounded semi-annually in arrears (such compounded dividends, the “Compounded Dividends”) on dividend payment dates to be mutually agreed upon by the Issuer and the Purchasers (each such date, a “Dividend Payment Date”). Unless otherwise elected by the Issuer, dividends on the Preferred Equity will not be paid in cash and instead will continue to accrue and be compounded in arrears on each Dividend Payment Date. Dividends (other than Compounded Dividends, which will be redeemable solely in accordance with “Optional Redemptions” and “Mandatory Redemptions” below) will be payable, at the election of the Issuer, in cash at any time, when, as and if declared by the board of directors of the Issuer or any authorized committee thereof. For the avoidance of doubt, declared dividends can only be paid in cash.
“Preferred Dividend Rate” means 14.00% per annum from the Issue Date to the 8th anniversary of the Issue Date, increasing by 100 basis points per annum beginning on the 8th anniversary of the Issue Date and an additional 100 basis points on each anniversary of the Issue Date thereafter; provided that the Preferred Dividend Rate shall not at any time exceed 18.0% per annum (other than as a result of and upon the occurrence of an Event of Default).
“Stated Value” means, at any date of determination and with respect to each outstanding share of Preferred Equity, the sum of (i) $1,000 (adjusted as appropriate in the event of any stock dividend, stock split, recapitalization or combination with respect to the Preferred Equity), plus (ii) the aggregate Compounded Dividends with respect to such share as of the date of determination. | |
| Maturity: | Perpetual. | |
| Optional Redemption: | The Issuer may, at its option on any one or more dates after the Issue Date (any such date, a “Redemption Date”), redeem the Preferred Equity, in whole or in part, in cash at the Redemption Price (as defined below). | |
B-2
| “Redemption Price” means, with respect to any share of Preferred Equity at any Redemption Date: | ||
| (a) with respect to any Redemption Date occurring prior to the First Call Date, an amount per share equal to (A) the sum of (i) the Stated Value as of such Redemption Date and (ii) the Make-Whole Amount as of such Redemption Date, with this clause (ii) discounted to the present value as of the Redemption Date using an annual discount rate (applied quarterly) equal to the rate on U.S. Treasury notes with a maturity closest to the First Call Date plus 50 basis points, plus (B) the aggregate accumulated and unpaid dividends (other than the Compounded Dividends) up to, but excluding, the Redemption Date; and | ||
| (b) with respect to any Redemption Date occurring on or after the First Call Date, an amount per share equal to the (i) Stated Value, multiplied by the applicable Redemption Percentage, plus (ii) the aggregate accumulated and unpaid dividends (other than Compounded Dividends), up to, but excluding, the Redemption Date. | ||
| “Make-Whole Amount” means, with respect to any redemption of any share of Preferred Equity prior to the 24-month anniversary of the Issue Date (the “First Call Date”), an amount equal to the sum of (I) the remaining dividends that would accrue on such share of Preferred Equity being redeemed from the Redemption Date to the First Call Date, plus (II) the premium portion of the Redemption Price (i.e., such portion that is above par) that would be payable on the First Call Date in respect of the Preferred Equity being redeemed, assuming that, for purposes of calculating clauses (I) and (II), that such share of Preferred Equity were to remain outstanding through the First Call Date (including any applicable deemed accumulation and compounding of dividends during such period), and then be redeemed on the First Call Date. | ||
| “Redemption Percentage” means (a) beginning on the First Call Date and until the one-year anniversary of the First Call Date, 102.0% and (b) thereafter, 100%. | ||
| Mandatory Redemption: | In the event of (i) the occurrence of a Change of Control (as such term shall be defined and to be based on clause (b) of the corresponding definition in the Credit Agreement dated as of August 18, 2016 among Zuffa Guarantor, LLC, UFC Holdings, LLC, as the borrower, Goldman Sachs Bank USA, as administrative agent, and the other parties thereto, as amended (but with the deletion of clause (b) of the defined term | |
B-3
| “Sponsor”), and consistent with such definition in the credit agreement to be entered into on or around the Issue Date (the “New Credit Agreement”) but shall require that the Issuer at all times (a) own, directly or indirectly, 100% of the equity interests of Manager and (b) control the majority of the voting interests of EOC), (ii) the consummation of an IPO (as defined below), or (iii) any voluntary or involuntary bankruptcy, liquidation, dissolution or winding up of the Issuer or the Borrower, then all outstanding Preferred Equity shall be redeemed for cash at a price per share equal to the applicable Redemption Price as of such Redemption Date.
An “IPO” means the consummation of any transaction resulting in the common equity interests of the Issuer, a parent entity or a subsidiary thereof, or a successor of the Issuer, becoming listed on the New York Stock Exchange, the NASDAQ Global Market or other internationally recognized stock exchange or similar market including via a consummated bona fide initial underwritten public offering, direct listing or consummation of a merger or acquisition by a publicly listed special purpose acquisition vehicle. | ||
| Documentation: | The Preferred Equity issued on the Issue Date will be purchased by the Purchasers pursuant to a purchase agreement to be mutually agreed between the Issuer and the Purchasers (the “Purchase Agreement”), including representations and warranties substantially consistent with the New Credit Agreement, with such changes as are appropriate for a preferred equity purchase agreement (which shall include, among others, representations as to the capitalization of the Issuer, no registration of the Preferred Equity, due authorization, valid issuance of the Preferred Equity, tax status of the Issuer as a corporation and non-United States real property holding corporation status of the Issuer) and the Preferred Equity will be issued pursuant to a Certificate of Designations (together with the Purchase Agreement, the “Preferred Equity Documentation”). Without limitation of the foregoing, the Preferred Equity Documentation will include certain customary rights for holders sufficient for each holder to comply with the legal and regulatory requirements to which it is subject with respect to: (i) such holder’s use of the Issuer’s name in connection with advertising, marketing or publicity, subject to customary limitations, (ii) transfers by the holder in connection with legal or regulatory matters and (iii) acknowledgments by the Issuer that (x) the Issuer and the holder have no fiduciary relationship and (y) the holder’s investment in the Preferred Equity does not restrict any of the holder’s or its affiliates’ business activities, subject to customary carveouts, in each case of clauses (i) through (iii), as reasonably requested by such holder. | |
B-4
| Information Rights: | The Certificate of Designations will include such information rights as is consistent with the New Credit Agreement, but with such modifications for a preferred equity security, including that (i) audited annual financial statements of the Borrower shall be delivered within 120 days (or, in the case of the first fiscal year ending after the Closing Date, 150 days) of the last day of each fiscal year, (ii) unaudited quarterly financial statements of the Borrower shall be delivered within 60 days (or, in the case of the first three fiscal quarters ending after the Closing Date, 90 days) of the last day of each of the first three fiscal quarters and (iii) prior to an IPO, the Borrower shall deliver an annual budget within the time period required for delivery of audited annual financial statements; provided that the financials referred to in clauses (i) and (ii) shall include such information that explains in reasonable detail, the material differences, if any, between the information relating to the Borrower and its consolidated subsidiaries on the one hand, and the Issuer and its consolidated subsidiaries on a standalone basis, on the other hand; | |
| Remedies to Holders: | If an Event of Default (to be defined in a manner consistent with the New Credit Agreement as in effect on the Issue Date, but as applied to the definitive documentation for the Preferred Equity and with customary modifications for a preferred equity security to be mutually agreed among the Issuer and the Purchasers) occurs, the Preferred Dividend Rate shall increase by 2.00%.
The Certificate of Designations shall include customary remedies in the event of any breach, including specific performance and all other available remedies under equity and law, and nothing in the foregoing paragraph shall be deemed to limit the ability of a holder of Preferred Equity to exercise such remedies. | |
| Voting Rights: | The holders of Preferred Equity will not have any voting or consent rights; provided, however, that so long as any Preferred Equity remains outstanding, unless a greater percentage is then required by law, the Issuer will not, without the affirmative vote or consent of the Holder Majority (as defined below), (x) amend, restate, supplement, alter, modify, repeal, waive or change the terms, designations, preferences, rights, privileges or powers of, or the restrictions provided for | |
B-5
| the benefit of, the Preferred Equity, (y) effect any binding exchanges, conversions or reclassifications of the Preferred Equity or the Mirror Units or (z) amend, restate, modify or change the terms of (or otherwise permit the amendment, restatement modification or change of the terms of) the organizational documents of the Issuer or EOC in a manner that results in a disproportionate and adverse effect on the holders of Preferred Equity in any material respect; provided, that, the Certificate of Designations shall include customary minority protections, requiring the affirmative written consent of the affected holder of shares of Preferred Equity in order to amend, restate, supplement, alter, modify, repeal, waive or change the Stated Value, the dividend rate, the timing of payment of dividends and the definition of Redemption Price with respect to such share of Preferred Equity; provided further, for the avoidance of doubt, that after the Closing any issuance of preferred equity (including any preferred equity ranking pari passu with or senior to the Preferred Equity) made in compliance with the debt incurrence covenant shall not require any affirmative vote or consent of any holder of the Preferred Equity.
“Holder Majority” means holders of a majority of the outstanding Preferred Equity, provided, that each of the Existing Purchasers must be included in any such majority (on a separate and not joint basis) so long as such Existing Purchaser or any transferee thereof (to which the Preferred Equity has been transferred in compliance with the terms of the Preferred Equity Documentation) holds as of the applicable date of determination not less than 50.1% of the sum of (i) the Stated Value of the Preferred Equity purchased by such Existing Purchaser on the Closing Date less any Preferred Equity that has been redeemed by the Issuer from such Purchaser or transferee, as applicable, and (ii) the aggregate Compounded Dividends with respect to such Preferred Equity referred to in clause (i) as of the date of determination; provided that (x) with respect to any of the Existing Purchasers, only such Existing Purchaser or any transferee thereof (but not both) shall be required to constitute a Holder Majority at any given time and (y) there shall be no more than two holders at any given time who must be required to be included in the Holder Majority. | ||
| Negative Covenants: | The Preferred Equity Documentation will include customary negative covenants applicable to the Issuer and its restricted subsidiaries that shall be substantially consistent with (but no more restrictive) than those contained in the New Credit | |
B-6
| Agreement as in effect on the Issue Date, with a 25% “cushion” for all baskets (but not for ratios) and with the following exceptions:
(a) with respect to the debt incurrence covenant, incurrence shall be limited to (i) the “Total Leverage Ratio” test pursuant to which the Issuer and its restricted subsidiaries may incur or issue an unlimited amount of indebtedness and preferred equity interests so long as pro forma for such incurrence, the Total Leverage Ratio (which shall be defined in a manner consistent with the New Credit Agreement as in effect on the Issue Date, but shall give effect to the Stated Value of the Preferred Equity (but excluding any Compounded Dividends), and the liquidation preference of any preferred equity interests that are senior to or pari passu with the Preferred Equity or disqualified equity interests of the Issuer and its restricted subsidiaries, in each case, excluding any compounded dividends accruing at a rate of up to 14% per annum that are paid or payable in-kind) does not exceed 9.00:1.00 (it being understood that the foregoing shall not apply to indebtedness under a revolver or other working capital facility or any purchase money indebtedness (including financing lease obligations)) and (ii) customary non-dollar and non-ratio based baskets (other than debt for borrowed money) consistent with the New Credit Agreement as in effect on the Issue Date;
(b) the restricted payments covenant shall prohibit (i) any “in-kind distributions” by the Issuer and its subsidiaries and (ii) the making of any dividend, distribution or redemption that is paid in cash in respect of shares of common equity, as a class, of the Issuer or any of its subsidiaries pursuant to the “builder basket”, the unlimited ratio basket or the general restricted payments basket shall be subject to the requirements under the section titled “RP Offer Amount”; and
(c) limitations to be mutually agreed between the Issuer and the Purchasers with respect to the Issuer or any of its subsidiaries pursuing any business activity in the gaming industry that would require the holders of the Preferred Equity or of any of their respective affiliates or employees to comply with licensing requirements or requirements for invasive or burdensome disclosure of private financial or personal information, or that would impose any burdensome regulatory obligation or constraints on the holders or their respective affiliates or employees. | ||
B-7
| For the avoidance of doubt, (x) except as set forth above, the restricted payments covenant shall include all baskets, ratios and exceptions as set forth in the New Credit Agreement as in effect on the Issue Date, with a 25% “cushion” for all baskets (but not for ratios) and (y) the Issuer shall be permitted to designate subsidiaries as “unrestricted subsidiaries” subject only to certain requirements which shall be consistent with those set forth in the New Credit Agreement. | ||
| RP Offer Amount: | In the event of any proposed dividend, distribution or redemption that is paid in cash with respect to shares of common equity, as a class, of the Issuer or any of its subsidiaries to be made in reliance upon the “builder basket”, the unlimited ratio basket or the general restricted payments basket, the contemplated amount of such dividend, distribution or redemption (or, if less, the amount of the Stated Value of the then outstanding Preferred Equity) (the “RP Offer Amount”) shall first be offered to the holders of Preferred Equity to redeem at par the then outstanding Preferred Equity at the then current Stated Value thereof on a pro rata basis; provided that (x) such holders may elect to receive all or any part of their pro rata amount of such RP Offer Amount and (y) any declined amounts shall be offered to accepting holders (based on their pro rata share of such declined amounts) before such declined amounts may fund any redemption, distribution, payment or transfer of value to any holder of junior equity interests of the Issuer, the Manager or EOC. | |
| Affirmative Covenants: | The Certificate of Designations will contain affirmative covenants with respect to maintenance of existence, compliance with laws and payment of taxes, which shall be substantially consistent with (but no more restrictive) than those to be contained in the New Credit Agreement as in effect on the Issue Date, with such modifications as are customary for a preferred equity security to be mutually agreed among the Issuer and the Purchasers. | |
| Limits on Transferability: | At any time from and after the Issue Date, Preferred Equity may be transferred only with the Issuer’s prior written consent, subject to customary exceptions for (i) transfers by any Purchaser to its affiliates and related funds, excluding in any event any portfolio company of the Purchaser and its affiliates and related funds and (iii) pledges in connection with bona fide | |
B-8
| fund level indebtedness. Each Purchaser shall be permitted to transfer its Preferred Equity without notice or consent being required to any person upon any failure of the Issuer to comply with its obligations under “Mandatory Redemption” above, or any voluntary bankruptcy, liquidation, dissolution or winding up of the Issuer or the Borrower.
Notwithstanding anything to the contrary herein, from and after the fifth anniversary of the Issue Date, the Preferred Equity may be transferred without notice or consent being required to a “qualified institutional buyer” as defined pursuant to Rule 144A promulgated under the Securities Act of 1933, as amended. | ||
| Governance Rights: | None pursuant to the Purchase Agreement or Certificate of Designations. The foregoing shall not impact or affect any governance rights that the Purchasers may have as set forth in any other documentation. | |
| Registration Rights: | None. | |
| Preemptive Rights: | None. | |
| Applicable Law: | As to the Certificate of Designations: Delaware. | |
| As to the Purchase Agreement: New York. | ||
| Tax Provisions: | From and after the Closing Date, the Issuer will be treated as a domestic C corporation for U.S. federal income tax purposes and will not take any action that would cause it not to be a domestic C corporation for U.S. federal income tax purposes or could otherwise cause any holder of the Preferred Equity (each, a “Holder” and, collectively, the “Holders”) to own an interest in an entity that is not a domestic C corporation for U.S. federal income tax purposes, in each case without the consent of each of the Holders, which consent may be withheld in a Holder’s sole discretion.
The Preferred Equity Documentation will include provisions reflecting the parties’ intent that (i) the Preferred Equity is intended to be treated as equity (and not debt) for U.S. federal income tax purposes, (ii) Holders shall not be required to include in income as a dividend for U.S. federal income tax purposes any amounts in respect of the Preferred Equity unless and until such dividends are declared and paid in cash, and (iii) any redemption of the Preferred Equity from a Holder thereof, whether in part or in full, qualifies as a sale or exchange of such Preferred Stock pursuant to Section 302 of the Code and not as a distribution for U.S. federal income tax purposes. The Issuer | |
B-9
| will, and will cause any paying agent or other agent of the Issuer to, report consistently with, and take no positions or actions inconsistent with (including on any IRS Form 1099 or any other information return or by way of withholding), the intended tax treatment set forth in the preceding clauses (i) through (iii) (the “Intended Tax Treatment”) unless otherwise required by a change in law or a final determination of a taxing authority which, in each case, is binding on the Issuer.
The Issuer will represent that it is not, and does not anticipate becoming, a United States real property holding corporation (“USRPHC”) within the meaning of Section 897(c)(2) of the Code. The Issuer shall (a) provide to any Holder, within ten (10) days of such Holder’s written request, (i) a certification that the Preferred Equity does not constitute a “United States real property interest”, in accordance with Treasury Regulations Section 1.897-2(h)(1) or (ii) written notice of its legal inability to provide such a certification and (b) in connection with the provision of any certification pursuant to the preceding clause (a)(i), comply with the notice provisions set forth in Treasury Regulations Section 1.897-2(h). In the event the Issuer becomes aware of any facts or circumstances that could reasonably be expected to cause it to become a USRPHC, the Issuer shall promptly notify the Holders.
The Issuer shall provide any information reasonably requested by the Holders to enable the Holders (and their direct or indirect equity owners) to comply with their U.S. federal income tax reporting and withholding obligations, including, but not limited to, an estimate or determination (and accompanying certification in accordance with Treasury Regulations Section 1.1441-3(c)(2)(ii)(A)) of the amount of the Issuer’s current and accumulated earnings and profits in any taxable year where such estimate or determination is relevant to determining the amount (if any) of any distribution or deemed distribution received by the Holders from the Issuer that is properly treated as a dividend for U.S. federal income tax purposes.
Each Purchaser will provide (i) an IRS Form W-9 or (ii) IRS form W-8 claiming a complete exemption from U.S. withholding tax on dividends. Subject to compliance with the Intended Tax Treatment, the Issuer (and any other applicable withholding agent) may deduct and withhold any amounts required to be deducted and withheld under applicable law with respect to the Preferred Equity (and may set off any such amounts required to be withheld against any dividends or other payments on the Preferred Equity). | ||
| Fees and Expenses: | The Preferred Equity Documentation will contain expense reimbursement and indemnity provisions substantially consistent with the Commitment Letter. | |
B-10
Exhibit C
Project Wildcat
Preferred Commitment Letter
Summary of Additional Conditions1
The funding of the Preferred Financing by the Purchasers on the Closing Date is subject solely to the satisfaction or waiver by the Purchasers of the applicable conditions set forth in the section entitled Conditions in the body of the Commitment Letter and the following conditions (subject in all respects to the Limited Conditionality Provisions):
1. Since the date of the Acquisition Agreement, no Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Signing Date) shall have occurred and be continuing that would result in the failure of a condition precedent to your obligation to fund the Acquisition under the Acquisition Agreement or that would give you the right (taking into account any notice and cure provisions) to terminate your obligations pursuant to the terms of the Acquisition Agreement.
2. The Acquisition shall have been consummated, or substantially simultaneously with the purchase of the Preferred Financing and the initial borrowings under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or waivers by Buyer (or any of its affiliates) thereto, other than those modifications, amendments, consents or waivers by Buyer (or its affiliate) that are materially adverse to the interests of the Purchasers in their capacity as such when taken as a whole (it being understood that any modification, amendment, consent or waiver to the definition of Material Adverse Effect shall be deemed to be materially adverse to the interests of the Purchasers), unless consented to in writing by the Purchasers (such consent not to be unreasonably withheld, delayed or conditioned); provided that the Purchasers shall be deemed to have consented to such amendment, supplement, waiver or modification unless they shall object in writing thereto within three business days of being notified or otherwise becoming aware of such amendment, waiver, modification, consent or waiver being delivered; provided, further, that, any dispositions permitted under the Acquisition Agreement shall not be deemed materially adverse to the interests of the Purchasers in their capacity as such, whether taken individually or in the aggregate; provided, further, that without limiting any other rights and/or obligations of this Exhibit C, any modification, amendment or express waiver or consents by Buyer (or its affiliate) that results in (a) a reduction in the Acquisition Consideration shall not be deemed to be materially adverse to the Purchasers if such reduction is applied (i) first to reduce the Equity Contribution to 35.0%, subject to the Minimum Common Equity Contribution of at least 30.0% and (ii) thereafter, (I) 65.0% to reduce the Initial Term A Facility until the amount of commitments in respect of the Initial Term A Facility is $0, and thereafter to reduce the amount of commitments in respect of the Initial Term B Facility and the Margin Bridge Facility and (II) 35.0% to reduce the Equity Contribution, subject to the Minimum Common Equity Contribution
| 1 | All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Exhibit C is attached, including Exhibits A and B thereto. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit C shall be determined by reference to the context in which it is used. |
C-1
of at least 30.0% and (b) an increase in the Acquisition Consideration shall be deemed to be materially adverse to the Purchasers. Any reduction in the amount of the Equity Contribution shall be pro rata among the components of common equity contribution and the Preferred Equity or, at the option of the Purchasers, shall reduce only the common equity contribution.
3. Confirmation from you that the Common Equity Contribution shall have been made, or substantially simultaneously with the funding of the Preferred Financing, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.
4. (a) Substantially simultaneously with the initial borrowing under the Term Facilities and the consummation of the Acquisition, the Refinancing shall be consummated and (b) the borrowing of the Facilities shall have been made, or substantially simultaneously with the funding of the Preferred Financing, shall be made, in an aggregate amount not to exceed that which is set forth with respect to the Facilities on Exhibit B of the Commitment Letter.
5. The Purchasers shall have received (a) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, the two most recently completed fiscal years ended at least 120 days prior to the Closing Date and (b) unaudited condensed consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related unaudited condensed consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the last fiscal quarter of the fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were prepared pursuant to the preceding clause (a) and ended at least 60 days before the Closing Date (in the case of this clause (b), without footnotes). The Purchasers hereby acknowledge (x) receipt of the audited financial statements referred to in clause (a) above for the fiscal years ended December 31, 2021, December 31, 2022 and December 31, 2023, (y) receipt of the unaudited financial statements referred to in clause (b) above for the three months ended March 31, 2024 and (z) that the public filing by the Target with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clause (a) or (b), as applicable, of this paragraph.
6. The Closing Date shall have occurred on or before the Expiration Date.
7. The Purchasers shall have received at least three business days prior to the Closing Date, all documentation and other information about Holdings, the Borrower and the Issuer that shall have been reasonably requested by the Purchasers in writing at least ten business days prior to the Closing Date and that the Purchasers reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, including, if the Issuer qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (as defined below), a Beneficial Ownership Certification (as defined below) in relation to the Issuer. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (as defined below), which certification shall be substantially similar in substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers included as Appendix A to the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
C-2
8. Subject in each case to the Limited Conditionality Provisions, (a) the Specified Representations shall be accurate in all material respects; provided that, any Specified Representations qualified by materiality shall be, as so qualified, accurate in all respects, and (b) the Specified Acquisition Agreement Representations shall be accurate in all material respects provided that, any Specified Acquisition Agreement Representations qualified by materiality shall be, as so qualified, accurate in all respects.
9. Subject in all respects to the Limited Conditionality Provisions, (a) the execution and delivery by the Issuer of the Preferred Equity Documentation (as defined in Exhibit B to the Commitment Letter) which shall be in accordance with the terms of the Commitment Letter and the Term Sheet and (b) delivery to the Purchasers of the following (the “Closing Deliverables”): (i) customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation/organization, in each case with respect to the Issuer and (ii) a solvency certificate, dated as of the Closing Date, after giving effect to the Transactions, substantially in the form of Annex II to this Commitment Letter, of a senior financial executive or officer of the Issuer (or, at the option of the Issuer, a third party opinion as to the solvency of the Issuer and its subsidiaries on a consolidated basis issued by a nationally recognized firm).
10. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Issuer), shall, upon the funding of the Preferred Financing, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Preferred Financing).
C-3
Annex I
Closing Payment
The Closing Payment payable to each of the Purchasers shall be equal to 2.00% of the amount of each Purchaser’s Commitment that is funded on the Closing Date.
Annex I-1
Annex II
Solvency Certificate
[ ], 202[ ]
This Solvency Certificate (this “Certificate”) is delivered pursuant to Section [ ] of the Purchase Agreement, dated as of [ ] (as amended as of the date hereof, and as it may be further amended, supplemented or otherwise modified, the “Purchase Agreement”), by and among [ ] (the “Issuer”) and [ ], a [ ]. Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Purchase Agreement.
I, [ ], the [ ] of the Issuer, in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Issuer that as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1. For purposes of this certificate, the terms below shall have the following definitions:
(a) “Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Issuer and its subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b) “Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Issuer and its subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(c) “Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Issuer and its subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
(d) “Will be able to pay their Liabilities as they mature”
As of the date hereof, the Issuer and its subsidiaries on a consolidated basis taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Issuer and its subsidiaries as reflected in the projected financial statements and in light of the anticipated credit capacity.
Annex II-1
(e) “Do not have Unreasonably Small Capital”
The Issuer and its subsidiaries on a consolidated basis taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern immediately following the consummation of the Transactions. I understand that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the business conducted or anticipated to be conducted by the Issuer and its subsidiaries on a consolidated basis as reflected in the projected financial statements and in light of the anticipated credit capacity.
2. Based on and subject to the foregoing, I hereby certify on behalf of the Issuer that after giving effect to the consummation of the Transactions, it is my opinion that (i) the Fair Value of the assets of the Issuer and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (ii) the Present Fair Salable Value of the assets of the Issuer and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities; (iii) the Issuer and its subsidiaries on a consolidated basis taken as a whole do not have Unreasonably Small Capital; and (iv) the Issuer and its subsidiaries taken as a whole will be able to pay their Liabilities as they mature.
3. In reaching the conclusions set forth in this Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by the Issuer and the Subsidiaries after consummation of the transactions contemplated by the Purchase Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
| By: | ||
| Name: | ||
| Title: [Chief Financial Officer] |
Annex II-2
Exhibit (b)(13)
Execution Version
CONFIDENTIAL
Goldman Sachs Asset Management, L.P.
Broad Street Principal Investments, L.L.C.
200 West Street
New York, NY 10282
November 12, 2024
WILDCAT EGH HOLDCO, L.P.
c/o Silver Lake Partners
55 Hudson Yards
550 West 34th Street, 40th Floor
New York, NY 10001
Attention: Egon Durban
Project Wildcat
Preferred Equity Commitment Letter
Ladies and Gentlemen:
This letter (together with the exhibits hereto, this “Commitment Letter”) sets forth the commitment of Goldman Sachs Asset Management, L.P., a Delaware limited partnership, on behalf of certain advised funds and managed accounts, and Broad Street Principal Investments, L.L.C., a Delaware limited liability company (together with any other GS Affiliate to which any commitments in respect of the Preferred Financing (as defined below) are reallocated, sold, or otherwise transferred pursuant to and in accordance with this Commitment Letter, each a “Purchaser” and collectively, “we”, “us” or the “Purchasers”), subject to the terms and conditions contained herein, to provide or cause to be provided to Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “you”), a portion of the Preferred Financing to consummate the Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). As used herein, the “Preferred Financing” shall mean $50,000,000 of aggregate preferred equity financing that will be used to consummate such Transactions. Capitalized terms used but not defined in this Commitment Letter shall have the meanings set forth in the Exhibits to this Commitment Letter.
| 1. | Commitment. Each Purchaser hereby commits, severally and not jointly (and for the avoidance of doubt, each and every liability, obligation or other covenant of the Purchasers under this Commitment Letter shall be solely on a several and not joint basis among the Purchasers), subject to the terms and conditions set forth herein, that, at (and subject to) the closing of the Acquisition (“Closing”), it shall provide or shall cause to be provided to Buyer, in exchange for a preferred equity interest in Endeavor Group Holdings, Inc. (“Issuer”), to be issued on the terms set forth on Exhibit B, for its respective amount of the Preferred Financing as set forth opposite the Purchaser’s name in Schedule A hereto, for an aggregate amount equal to $50,000,000 (the “Commitment”). |
“Ratings Event” means the receipt by the Issuer of a credit rating or an advisory or prospective credit rating from Moody’s Investor Service, Inc. and S&P Global Ratings Inc. of B1 (or better) or B+ (or better), respectively, which ratings give effect to all indebtedness and preferred equity interests expected to be incurred or be outstanding at Closing (including the Commitment).
| 2. | Information. You hereby represent and warrant that (a) all written information and written data (such information and data, other than (i) estimates, forecasts and other projections (the “Projections”) and (ii) information of a general economic or industry specific nature, the “Information”) (in the case of Information regarding the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge), that has been or will be made available to the Purchasers directly or indirectly by you, the Target or by any of your or its subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby, when taken as a whole and together with the reports and other information filed by the Target or any of its subsidiaries with the Securities and Exchange Commission (including the risk factors therein), is or will be, when furnished, correct in all material respects and does not or will not, when furnished and when taken as a whole, 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 (after giving effect to all supplements and updates thereto from time to time) and (b) the Projections that have been or will be made available to the Purchasers by you or by any of your subsidiaries or representatives, in each case, on your behalf in connection with the transactions contemplated hereby have been, or will be, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time prepared and at the time the related Projections are so furnished to the Purchasers; it being understood that the Projections are as to future events and are not to be viewed as facts, the Projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular Projections will be realized and that actual results during the period or periods covered by any such Projections may differ significantly from the projected results and such differences may be material. You agree that, if at any time prior to the closing of the Acquisition and the funding of the Preferred Financing (the “Closing Date”), you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations and warranties were being made, at such time, then you will (or, with respect to the Information and Projections relating to the Target and its subsidiaries, will use commercially reasonable efforts to) promptly supplement the Information and the Projections such that such representations and warranties are correct in all material respects under those circumstances (or, in the case of the Information relating to the Target and its subsidiaries and its and their respective businesses, to the best of your knowledge, such representations and warranties are correct in all material respects under those circumstances). |
| 3. | Closing Payments. As consideration for the Commitment hereunder, Issuer agrees, if and only if the Closing of the portion of the Preferred Financing for which the Purchasers have provided a Commitment and the Transactions occur, to pay, or cause to be paid, to the Purchasers a non-refundable closing payment as set forth on Annex I (the “Closing Payment”), which the Purchasers may elect to receive via net funding. |
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| 4. | Conditions. The Commitment of the Purchasers hereunder shall be subject solely to the occurrence of the Ratings Event and the conditions expressly set forth in Exhibit C to this Commitment Letter (the “Funding Conditions”), and upon satisfaction (or waiver by the Purchasers in accordance with this Commitment Letter) of such conditions, the initial funding of the Commitment of the Purchasers shall occur; it being understood that there are no conditions (implied or otherwise) to the commitment hereunder, including compliance with the terms of this Commitment Letter other than the Funding Conditions that are expressly stated to be conditions to the issuance and sale of the Preferred Equity on the Closing Date. |
Notwithstanding anything to the contrary in this Commitment Letter (including each of the Exhibits attached hereto) or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties relating to you or the Target or your or their respective subsidiaries or businesses or otherwise, the accuracy of which shall be a condition to the funding of the Preferred Financing on the Closing Date shall be (a) such of the representations and warranties (if any) made by, or with respect to, the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the Purchasers in their capacity as such, but only to the extent that you (or your affiliate) have the right (taking into account any applicable notice and cure provisions) to terminate your (and/or their) obligations under the Acquisition Agreement or decline to consummate the Acquisition or otherwise results in a failure of a condition precedent in the Acquisition Agreement (in each case, in accordance with the terms thereof) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and (b) the Specified Representations (as defined below) made by the Issuer in the Preferred Equity Documentation, and (ii) the terms of the Preferred Equity Documentation and the Closing Deliverables (as defined in Exhibit C to this Commitment Letter) shall be in a form such that they do not impair the issuance of the Preferred Equity on the Closing Date assuming the Funding Conditions are satisfied (or waived in writing by the Purchasers in their sole discretion). For purposes hereof, “Specified Representations” means the applicable representations and warranties of Issuer to be set forth in the Preferred Equity Documentation relating to organizational corporate existence of Issuer as of the Closing Date; tax status of the Issuer as a corporation; power and authority, due authorization, execution, delivery and enforceability, in each case, related to, the issuance of the Preferred Financing and performance of the applicable definitive documentation related to the Preferred Financing; and the issuance of the Preferred Financing does not conflict with the organizational documents of Issuer, or any preemptive rights, rights of first refusal or rights of first offer (or similar rights) applicable to the Preferred Financing, in each case, after giving effect to any written waivers obtained from any persons having such rights; solvency as of the Closing Date (after giving effect to the Transactions) of the Issuer and its subsidiaries on a consolidated basis (solvency to be defined in a manner consistent with the manner in which solvency is determined in the solvency certificate to be delivered in the form set forth in Annex II); the Investment Company Act; the use of proceeds of the issuance and sale of the Preferred Financing not violating the PATRIOT Act (as defined below), OFAC or FCPA; valid issuance of the Preferred Equity and that the Preferred Equity is fully paid and non-assessable; and status of the Preferred Equity as senior in payment priority and liquidation preference to all equity of the Issuer. This paragraph, and the provisions herein, shall be referred to as the “Limited Conditionality Provisions”.
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| 5. | Limitation on Liability; Indemnity; Settlement. |
| a. | Limitation on Liability. |
Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person or Related Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have resulted from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as determined by a court of competent jurisdiction in a final and non-appealable decision) and (ii) none of you (or any of your subsidiaries), the Investors (or any of their respective affiliates), the Target (or any of its subsidiaries or affiliates), any Indemnified Person or any Related Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Transactions (including the Preferred Financing and the use of proceeds thereunder), or with respect to any activities related to the Preferred Financing, including the preparation of this Commitment Letter and the definitive documentation of the Preferred Financing; provided that nothing in this paragraph shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party with respect to which the applicable Indemnified Person is entitled to indemnification under subsection (b) of this Section 5.
| b. | Indemnity. |
To induce the Purchasers to enter into this Commitment Letter and to proceed with the definitive documentation of the Preferred Financing, you agree to indemnify and hold harmless the Purchasers, each of their respective affiliates and the Purchasers’ and each of their respective affiliates’ officers, directors, employees, agents, partners, owners, controlling persons, advisors, attorneys and other representatives of each of the foregoing and their successors and permitted assigns under this Commitment Letter (each, an “Indemnified Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable and documented or invoiced out-of-pocket fees and expenses, joint or several, to which any such Indemnified Person may become subject to the extent arising out of, resulting from, or in connection with any actual or threatened claim, litigation, investigation or proceeding (including any inquiry or investigation) in connection with this Commitment Letter (including Exhibit B hereto (the “Term Sheet”)), the Transactions or any related transaction contemplated hereby or thereby, the Preferred Financing or any use of the proceeds thereof (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates or creditors or any other third person, and to promptly reimburse after receipt of a written request, each such Indemnified Person for any reasonable and documented or invoiced out-of-pocket legal fees and expenses incurred in connection with investigating or defending any of the foregoing by one firm of counsel for all such Indemnified Persons, taken as a whole and, if necessary, by a single firm of local counsel in each appropriate jurisdiction (which may
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include a single firm of special counsel acting in multiple jurisdictions) for all such 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 notifies you of the existence of such conflict and thereafter retains its own counsel, by another firm of counsel for such affected Indemnified Person) or other reasonable and documented or invoiced out-of-pocket fees and expenses incurred in connection with investigating, responding to, or defending any of the foregoing; provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any Related Indemnified Person (as defined below) (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any Related Indemnified Person under this Commitment Letter (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (iii) any Proceeding solely between or among Indemnified Persons not arising from any act or omission by you or any of your affiliates. The foregoing provisions in this paragraph shall be superseded, in each case, to the extent covered thereby by the applicable provisions contained in the definitive documentation of the Preferred Financing upon execution and delivery thereof and thereafter shall have no further force and effect.
“Related Indemnified Person” of an Indemnified Person means (1) any controlling person or any affiliate of such Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or any of its affiliates and (3) the respective agents, advisors, attorneys and representatives of such Indemnified Person or any of its controlling persons or any of its affiliates, in the case of this clause (3), acting at the instructions of such Indemnified Person, controlling person or such affiliate (it being understood and agreed that any agent, advisor or representative of such Indemnified Person or any of its controlling persons or any of its affiliates engaged to represent or otherwise advise such Indemnified Person, controlling person or affiliate in connection with the Transactions shall be deemed to be acting at the instruction of such person).
| c. | Settlement. |
You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld, conditioned or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 5.
You shall not, without the prior written consent of any Indemnified Person (which consent shall not be unreasonably withheld, conditioned or delayed) (it being understood that the withholding of consent due to non-satisfaction of any of the conditions described in clauses (i), (ii) and (iii) of this sentence shall be deemed reasonable), effect any settlement
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of any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such proceedings, (ii) does not include any statement as to or any admission of fault, culpability, wrong doing or a failure to act by or on behalf of any Indemnified Person and (iii) contains customary confidentiality provisions with respect to the terms of such settlement. Each Indemnified Person shall be severally obligated to refund or return any and all amounts paid by you under this Section 5 to the extent such Indemnified Person is not entitled to payment of such amounts in accordance with the terms hereof (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
| 6. | Confidentiality. You agree that you will not disclose, directly or indirectly, prior to your acceptance hereof, this Commitment Letter, the Term Sheet, the other exhibits and attachments hereto or the contents of each thereof, or the Purchasers’ activities pursuant hereto or thereto, to any person or entity without the prior written approval of the Purchasers (such approval not to be unreasonably withheld, delayed or conditioned), except (a) to the Investors (as defined in Exhibit A) and to any of your or the Investors’ affiliates and your and their respective officers, directors, employees, agents, attorneys, accountants, advisors, controlling persons and equity holders and to actual and potential co-investors who are informed of the confidential nature thereof, on a confidential and need-to-know basis, (b) if the Purchasers consent in writing to such proposed disclosure or (c) pursuant to an order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process or to the extent requested or required by governmental and/or regulatory authorities, in each case based on the reasonable advice of your legal counsel (in which case you agree, to the extent practicable and not prohibited by applicable law, rule or regulation, to inform us promptly thereof prior to disclosure); provided that (i) you may disclose this Commitment Letter and the contents hereof (other than with respect to Section 3 hereof and information with respect to fees, compensation or discounts within the Term Sheet) to the Target, its subsidiaries and affiliates and its and their respective officers, directors, employees, agents, attorneys, accountants, advisors and controlling persons, on a confidential and need-to-know basis, (ii) you may disclose the Commitment Letter and its contents (including the Term Sheet and other exhibits and attachments hereto) (but not the contents of Section 3 hereof or information with respect to fees, compensation or discounts within the Term Sheet) in any syndication or other marketing materials in connection with the Credit Facilities (as defined in Exhibit A) and Margin Bridge Facility (as defined in Exhibit A) (including any marketing materials and information memorandum used in connection therewith), (iii) you may disclose the aggregate fee amounts contained in this Commitment Letter as part of 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 any marketing materials or in connection with the Credit Facilities or in connection with any public or regulatory filing requirement relating to the Transactions (and then only to the extent aggregate with all other fees and expenses of the Transactions and not presented as an individual line item unless required by applicable law, rule or regulation), (iii) you may disclose the Term Sheet and other exhibits and attachments to the Commitment Letter, and the contents thereof, to potential co-investors and to rating agencies in connection with obtaining public ratings for the Borrower (as defined in Exhibit |
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| A) and the Credit Facilities, (iv) you may disclose this Commitment Letter and the contents thereof (including the Term Sheet and other exhibits and attachments hereto) to the initial lenders and any prospective lenders under the Credit Facilities and Margin Bridge Facility, the custodian and the transfer agent in connection with the Margin Loan facility, any additional prospective investor in the Preferred Financing and to any such person’s affiliates and their respective officers, directors, employees, agents, attorneys, accountants and other advisors, on a confidential and need-to-know basis and (v) in connection with any remedy or enforcement of any right hereunder. |
The Purchasers and each of their respective affiliates will use all non-public information provided to them or such affiliates by or on behalf of you hereunder or in connection with the Acquisition and the related Transactions solely for the purpose of negotiating, evaluating and consummating the transactions contemplated hereby and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided that nothing herein shall prevent the Purchasers and each of their respective affiliates from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule, regulation or compulsory legal process or as deemed necessary or advisable in light of ongoing review or oversight by a regulatory or governmental authority with jurisdiction over the Purchasers or GS Affiliate, in each case based on the reasonable advice of counsel, including in house counsel, (in which case the Purchasers agree (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (b) upon the request or demand of any regulatory authority having jurisdiction, or purporting to have jurisdiction, over the Purchasers or any of their respective affiliates (in which case the Purchasers agree (except with respect to any audit or examination conducted by bank accountants or any self-regulatory authority or governmental regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (c) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Purchasers or any of their respective Related Parties (as defined below) in violation of any confidentiality obligations owing to you, the Investors, Issuer, the Target or any of your or their respective subsidiaries and affiliates, (d) to the extent that such information is or was received by the Purchasers or any of their respective Related Parties from a third party that is not, to the Purchasers’ knowledge, subject to contractual or fiduciary confidentiality obligations owing to you, the Investors, Issuer, the Target or any of your or their respective subsidiaries and affiliates, (e) to the extent that such information is independently developed by the Purchasers or any of their respective Related Parties without the use of any confidential information, (f) to the Purchasers’ affiliates and to the Purchasers’ and each of their respective employees, officers, partners, directors, legal counsel, independent auditors, rating agencies, professionals and other experts or agents and existing and prospective limited partners and financing sources who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations and who have been advised of their obligation to keep information of this type confidential (collectively, the “Related Parties”), with the Purchasers, to the extent within their
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control, responsible for such person’s compliance with this paragraph, (g) to the extent you consent in writing to any specific disclosure or (h) to the extent such information was already in the Purchasers’ (or a GS Affiliate’s (as defined below)) possession prior to any duty or other understanding of confidentiality entered into in connection with the Transactions. In the event that the Preferred Financing is funded, the Purchasers and each of their respective affiliates’, if any, obligations under this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the definitive documentation of the Preferred Financing upon the initial funding thereunder to the extent that such provisions are binding on the Purchasers.
Subject to the immediately preceding sentence, the confidentiality provisions set forth in this Section 6 shall survive the termination of this Commitment Letter and expire and shall be of no further effect after the second anniversary of the date hereof.
| 7. | Absence of Fiduciary Relationship. The Purchasers, together with each of their respective affiliates (collectively, the “Sponsor Entities”), is a financial investment firm and as such from time to time may effect transactions for their own account, including financing, investment and acquisition transactions, and hold long or short positions in debt or equity securities or loans of companies that may be the subject of the transactions contemplated hereby. You also acknowledge that the Sponsor Entities have no obligation to use in connection with the transactions contemplated hereby, or to furnish to you, confidential information obtained from other companies or other persons. The Sponsor Entities may have economic interests that conflict with your economic interests and those of the Target. You acknowledge and agree that (a)(i) the agreements described herein regarding the Preferred Equity are arm’s-length commercial transactions between you and your affiliates, on the one hand, and the Purchasers, on the other hand, that do not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Sponsor Entities, and (ii) you will not assert, to the fullest extent permitted by law, any claims that you may have against the Purchasers or any of their respective affiliates for alleged breach of fiduciary duty arising by virtue of this Commitment Letter and (b) in connection with the transactions contemplated hereby, none of the Sponsor Entities have any obligation to you or your affiliates, except those obligations of the Purchasers expressly set forth in this Commitment Letter and in any other written and executed agreement with you or any of your affiliates. |
| 8. | Miscellaneous. This Commitment Letter and the commitment hereunder shall not be assignable by any party hereto (other than, without the consent of any person or entity, (i) any assignment occurring as a matter of law pursuant to, or otherwise substantially simultaneously with, the Acquisition on the Closing Date, in each case to the Target, Merger Sub or the Issuer, (ii) by you to (a) Target, Merger Sub or the Issuer substantially simultaneously with the Acquisition on the Closing Date or (b) a U.S. domestically organized entity, in each case, so long as such entity is, or will be, controlled by you or the Investors after giving effect to the Transactions and shall (directly or indirectly through one or more wholly-owned subsidiaries) own the Target and the Issuer and agrees to be bound by the terms hereof or (iii) by the Purchasers to (x) The Goldman Sachs Group, Inc. or any subsidiary thereof, including Goldman Sachs Asset Management, L.P. or its affiliates, and/or (y) funds, investors, entities, accounts or vehicles that are managed, sponsored or advised by any Person described in clause (x) (in each case of clauses (x) and (y), excluding any portfolio company thereof) (collectively, “GS Affiliates”), in each case, who shall agree to be bound by the terms hereof) without the |
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| prior written consent of each other party hereto (such consent not to be unreasonably withheld, conditioned or delayed) (and any attempted assignment without such consent shall be null and void). For the avoidance of doubt, without the consent of any person or entity, each Purchaser shall be permitted to reallocate, sell, assign or otherwise transfer all or any portion of such Purchaser’s Commitment and its commitments hereunder to (I) any other Purchaser party hereto and/or (II) any GS Affiliate. This Commitment Letter and the commitment hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons) and do not and are 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 set forth herein). The Purchasers reserve the right to employ the services of each of their respective affiliates or branches in providing services contemplated hereby and to allocate, in whole or in part, to each of their respective affiliates or branches certain fees payable to the Purchasers in such manner the Purchasers and each of their respective affiliates or branches may agree in their sole discretion, and, to the extent so employed, such affiliates and branches shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of the Purchasers hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Purchasers and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed 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 transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof. All Electronic Signatures (including, without limitation, facsimile or .pdf) on or associated with any communication shall be valid and binding on the applicable signatory to the same extent as a manual, original signature, and that any communication entered into by Electronic Signature, will constitute such signatory’s legal, valid and binding obligation enforceable against such signatory in accordance with the terms thereof to the same extent as if a manually executed original signature was delivered to the other signatories. This Commitment Letter (including the exhibits hereto), together with any other letter agreement entered into with the Purchasers on or prior to the date hereof, (i) are the only agreements that have been entered into among the parties hereto with respect to our commitment with respect to the Preferred Financing and (ii) supersede all prior understandings, whether written or oral, among us with respect to the Preferred Financing and sets forth the entire understanding of the parties hereto with respect thereto. For the avoidance of doubt, all issuances of Preferred Equity shall be of the same class of preferred equity and subject to the same Stated Value, Preferred Dividend Rate, timing of payment of dividends and definition of Redemption Price with respect to such share of Preferred Equity. THIS COMMITMENT LETTER, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER, OR RELATED TO, THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided that, notwithstanding the foregoing, it is understood and agreed that (a) the interpretation of the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) (and whether or not a Material Adverse Effect has occurred), (b) the determination of the accuracy of any Specified Acquisition Agreement Representation and whether as a result of any inaccuracy thereof you (or your affiliate) have the right (taking into account any applicable |
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| cure provisions) to terminate your obligations under the Acquisition Agreement or decline to consummate the Acquisition and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement, in each case shall be governed by, and construed in accordance with, the laws of the State of Delaware as applied to the Acquisition Agreement, without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware. |
The Purchasers or each of their respective affiliates 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 it may choose, and circulate similar promotional materials, in each case, after the Closing Date, in the form of “tombstone” or otherwise describing the name of the Issuer and the amount, type and closing date of the Transactions, all at the expense of the Purchasers or affiliate.
Each of the parties hereto agrees that this Commitment Letter is a binding and enforceable agreement (except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws relating to or affecting the rights of creditors generally) with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Preferred Equity Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the commitment provided hereunder is subject solely to conditions precedent as expressly provided herein.
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 OR PROVIDING OF COMMITMENT, AS THE CASE MAY BE, HEREUNDER.
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 New York County in the State of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall be heard and determined 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 or the transactions contemplated hereby or thereby in any New York State or in any such 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 suit, 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. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.
10
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”), the Purchasers may be required to obtain, verify and record information that identifies the Issuer and its subsidiaries, which information may include their names, addresses, tax identification numbers and other information that will allow the Purchasers to identify the Issuer and its subsidiaries in accordance with the PATRIOT Act or the Beneficial Ownership Regulation, as applicable. This notice is given in accordance with the requirements of the PATRIOT Act or the Beneficial Ownership Regulation, as applicable, and is effective for the Purchasers.
The survival, indemnification, compensation (if applicable), reimbursement (if applicable), jurisdiction, governing law, venue, waiver of jury trial and confidentiality provisions contained herein shall remain in full force and effect regardless of whether the Preferred Financing shall have been issued and notwithstanding the termination or expiration of this Commitment Letter or the Purchasers’ Commitment hereunder; provided that your obligations under this Commitment Letter shall automatically terminate and be superseded by the provisions of the definitive documentation relating to the Preferred Equity (to the extent covered therein) 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 Purchasers’ Commitment with respect to the Preferred Financing (or any portion thereof) hereunder at any time subject to the provisions of the preceding sentence; provided, that in exercising any such election to terminate the commitment (in whole or in part, as applicable) you concurrently exercise a termination of an equal amount of the commitment under that other certain preferred equity commitment letter, dated on or about the date hereof, entered into by one or more GS Affiliates for an aggregate amount of $50 million.
Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.
| 9. | Each Purchaser represents that (i) it is an “accredited investor” within the meaning of Regulation D, Rule 501(a), promulgated by the SEC under the Securities Act, as presently in effect and (ii) it is able to fend for itself, can bear the economic risk of its investment in the Preferred Financing, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Preferred Financing. |
| 10. | Effectiveness; Expiration. If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter by returning to the Purchasers (or their legal counsel on behalf of the Purchasers), executed counterparts hereof not later than 11:59 p.m., New York City time, on November 12, 2024. The Purchasers’ Commitment and obligations hereunder will expire at such time in the event that the Purchasers (or their legal counsel) have not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter at or prior to such time, we agree to hold our commitment to provide the Preferred Financing and our other undertakings in connection therewith available for you until the earliest of (i) after |
11
| execution and delivery of the Acquisition Agreement and prior to the consummation of the Transactions, the termination of the Acquisition Agreement by you (or your affiliate) or with your (or your affiliate’s) written consent in accordance with its terms (other than with respect to provisions therein that expressly survive termination), (ii) the consummation of the Acquisition without the issuance by the Issuer of the Preferred Financing and (iii) 11:59 p.m., New York City time on the date that is five business days after the Outside Date (as defined in and as may be extended pursuant to the Acquisition Agreement as in effect as of the date hereof (such earliest time, the “Expiration Date”). Upon the occurrence of any of the events referred to in the preceding sentence, this Commitment Letter and the commitment of the Purchasers hereunder shall automatically terminate unless the Purchasers shall, in their sole discretion, agree to an extension in writing. The termination of any Commitment pursuant to this paragraph will not prejudice your rights and remedies in respect of any breach or repudiation of this Commitment Letter. |
12
| Sincerely,
GOLDMAN SACHS ASSET MANAGEMENT, L.P., on behalf of certain advised funds and managed accounts | ||
| By: | /s/ Patrick Armstrong | |
| Name: Title: |
Patrick Armstrong Managing Director | |
| BROAD STREET PRINCIPAL INVESTMENTS, L.L.C. | ||
| By: | /s/ Patrick Armstrong | |
| Name: Title: |
Patrick Armstrong Managing Director | |
Agreed and accepted as of
the date first written above:
WILDCAT EGH HOLDCO, L.P.
| By: | SLP WILDCAT AGGREGATOR GP, L.L.C., its general partner | |
| By: | Silver Lake Technology Associates VII, L.P., its managing member | |
| By: | SLTA VII (GP), L.L.C., its general partner | |
| By: | Silver Lake Group, L.L.C., its managing member | |
| By: | /s/ Chip Schroeder | |
| Name: Title: |
Chip Schroeder Managing Director |
Schedule A
Project Wildcat
Commitments
| Purchaser |
Commitment |
Commitment Share | ||
| Goldman Sachs Asset Management, L.P., on behalf of certain advised funds and managed accounts |
$46,261,632.07 | 92.52326% | ||
| Broad Street Principal Investments, L.L.C. |
$3,738,367.93 | 7.47674% | ||
| Total | $50,000,000.00 | 100% | ||
A-1
Exhibit A
Project Wildcat
Transaction Description
Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) or in the debt commitment letter dated as of the date hereof (the “Debt Commitment Letter”). In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit A shall be determined by reference to the context in which it is used.
Wildcat EGH Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“Buyer” or “Holdco Parent”) and Wildcat OpCo Holdco, L.P., a limited partnership organized under the laws of the State of Delaware (“OpCo Parent”), were formed at the direction of Silver Lake Partners and its affiliates (collectively, with the funds partnerships, co-investment entities and other investment vehicles managed, advised or controlled thereby or by one or more directors thereof or under common control therewith, “Silver Lake” or “Sponsor”). Pursuant to an Agreement and Plan of Merger, dated as of the date hereof (together with all exhibits, schedules and other disclosure letters thereto, collectively, as amended, the “Acquisition Agreement”), by and among Holdco Parent, OpCo Parent, Wildcat PubCo Merger Sub, Inc., a corporation organized under the laws of the State of Delaware and wholly-owned subsidiary of Holdco Parent (“Company Merger Sub”), Wildcat OpCo Merger Sub, L.L.C., a limited liability company organized under the laws of the State of Delaware and wholly-owned subsidiary of OpCo Parent (“OpCo Merger Sub” and, together with Company Merger Sub, the “Merger Subs” and each, a “Merger Sub” and the Merger Subs, together with Holdco Parent and OpCo Parent, the “Buyer Entities”), a company previously identified to us and code-named “Wildcat” (the “Company” or the “Target”), and a subsidiary of the Company (the “OpCo” and, together with the Company, the “Company Entities” and each, a “Company Entity”), (i) Company Merger Sub will merge with and into the Target (the “Company Merger”), with the Target being the surviving entity of the Company Merger and (ii) OpCo Merger Sub will merge with and into the OpCo (the “OpCo Merger” and, together with the Company Merger, the “Mergers”), with the OpCo being the surviving entity of the OpCo Merger, whereby (A) Holdco Parent will acquire, directly or indirectly, the equity interests of the Company from the equity holders thereof (collectively, the “Company Sellers”) and, indirectly, the equity interests of OpCo owned by the Company and (B) OpCo Parent will acquire certain equity interests of the OpCo from the equity holders thereof (collectively, the “OpCo Sellers” and, together with the Company Sellers, the “Sellers”). Other than certain Sellers who may be given the opportunity to retain, rollover or reinvest capital stock, restricted stock units, profits interests and/or options into OpCo and/or the Company (including certain members of the management of the Company and its subsidiaries) (the “Rollover Investors”), the Sellers will receive cash (the “Acquisition Consideration”) in exchange for their capital stock, restricted stock units, profits interests and/or options in the Company Entities. Immediately after giving effect to the Mergers and the other Transactions, the Company will be a wholly-owned direct subsidiary of Holdco Parent and OpCo will be owned, collectively, directly or indirectly, by the Rollover Investors, Holdco Parent and OpCo Parent.
In connection with the foregoing, it is intended that:
A-1
| a) | The Issuer will issue newly issued shares of a class of preferred equity with an initial stated value of $1,000 per share (such shares the “Preferred Equity”) and in an aggregate initial stated value of up to $750 million (the “Preferred Equity Issuance”). |
| b) | The Sponsor and certain other investors (including certain Rollover Investors) arranged by and/or designated by the Sponsor (collectively with the Sponsor, the “Investors”) will directly or indirectly make (X) cash equity contributions to the Buyer Entities (the foregoing cash equity contributions to the Buyer Entities, the “Common Equity Contribution” and, together with the Preferred Equity Issuance, collectively the “Equity Contribution”), in an aggregate amount equal to, when combined with the fair market value of any capital stock or other equity interests of any of the Rollover Investors rolled over or invested in connection with the Transactions (as defined below) and the proceeds of the Preferred Equity Issuance, at least 35.0% of the sum of (1) the aggregate gross proceeds of the Facilities borrowed on the Closing Date, excluding the aggregate gross proceeds of (A) any Loans (as defined in the Debt Commitment Letter) to fund original issue discount and/or upfront fees in connection with the exercise of the “Market Flex Provisions” under the Fee Letter (as defined in the Debt Commitment Letter) and (B) any Revolving Loans (as defined in the Debt Commitment Letter) to fund any working capital needs on the Closing Date and (2) the equity capitalization of the Borrower and its subsidiaries on the Closing Date after giving effect to all of the Transactions (such sum of clauses (1) and (2), the “Total Capitalization”) and (Y) the Common Equity Contribution, in an aggregate amount equal to, when combined with the fair market value of any capital stock or other equity interests of any of the Rollover Investors rolled over or invested in connection with the Transactions, at least 30.0% of the Total Capitalization (the “Minimum Common Equity Contribution”); provided that, if applicable, to the extent any stockholder or other equity holder of the Target has exercised appraisal rights in connection with the Transactions, then on the Closing Date the Investors may elect to issue one or more equity commitment letters and/or arrange for one or more letters of credit to be issued on their behalf in an aggregate amount not less than the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the shares or other equity interests subject to such appraisal rights (the “Appraisal Shares”) and, for purposes of this Commitment Letter, an aggregate amount of such equity commitment letters and/or letters of credit up to, but not in excess of, the amount of consideration that would otherwise be paid under the Acquisition Agreement in respect of the Appraisal Shares shall be included in the amount and percentage of the Equity Contribution from and after the Closing Date as if such amount was funded in cash (with it being understood that, on or prior to the date of the final resolution of all such appraisal rights, the lesser of (a) the amount necessary to satisfy such appraisal rights in full and (b) an amount equal to the full amount committed under such equity commitment letters and/or the face value of any such letters of credit shall be funded, directly or indirectly, in cash to a newly formed limited liability company organized under the laws of the United States or any state thereof and an indirect subsidiary of the Target that is the borrower under the Revolving Facility and the Initial Term Facilities (the “Borrower”) in the form of common equity or preferred equity that ranks junior or pari passu to the Preferred Equity such that the aggregate initial stated value of Preferred Equity issued shall not exceed $750 million); provided, further that, the Sponsor will control a majority of the voting equity of the Issuer as of the Closing Date. |
A-2
| c) | The Borrower will obtain (i) up to $4,250 million under a senior secured term loan A- facility (the “Initial Term A Facility”) described in the Debt Commitment Letter, (ii) up to $2,750 million under a senior secured term loan B facility described in the Debt Commitment Letter (the “Initial Term B Facility”), (iii) up to $250 million under a senior secured revolving credit facility described in the Debt Commitment Letter (the “Revolving Facility”) and (iv) a senior secured 364-day term loan facility described in the Debt Commitment Letter (the “Margin Bridge Facility” and, collectively with the Initial Term A Facility and the Initial Term B Facility, the “Initial Term Facilities”; the Initial Term Facilities and the Revolving Facility, collectively, the “Credit Facilities”) in an aggregate principal amount of up to (A) $1,500 million minus (B) the aggregate principal amount of any loans funded under the Margin Bridge Facility on the Closing Date. |
| d) | The Margin Loan Borrower (as defined in the definitive documentation for the Margin Loan Facility) will seek to obtain up to $1,500 million under a margin loan facility described in the Debt Commitment Letter (the “Margin Loan Facility” and, together with the Credit Facilities, the “Facilities”). |
| e) | All principal, accrued, but unpaid interest, fees and other amounts (other than contingent obligations not then due and payable) outstanding on the Closing Date under the First Lien Credit Agreement, dated as of May 6, 2014 (as amended and restated by Amendment No. 5, dated as of May 18, 2018, and as further amended, supplemented or otherwise modified from time to time, the “Existing Wildcat Credit Agreement” and, together with the Existing Tiger Credit Agreement, the “Existing Credit Agreements”), by and among the WME IMG Holdings, LLC, William Morris Endeavor Entertainment, LLC, as borrower, IMG Worldwide Holdings, LLC, as co-borrower, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the other parties thereto, shall be repaid in full in connection with, and substantially concurrently with the closing of, the Transactions, and all commitments to lend and guarantees and security in connection therewith shall have been terminated and/or released or customary arrangements for such termination and/or release have been agreed upon with the administrative agent (the “Refinancing”). |
| f) | The proceeds of the Equity Contribution (including the Preferred Equity Issuance), the Facilities and/or a portion of the cash on hand at the Target and its subsidiaries on the Closing Date will be applied to pay (i) the Acquisition Consideration, (ii) the Refinancing and (iii) the fees and expenses incurred in connection with the Transactions (such fees and expenses, the “Transaction Costs”, and the amounts set forth in clauses (i) through (iii) above, collectively, the “Acquisition Funds”). |
The transactions described above (including the payment of Transaction Costs) are collectively referred to herein as the “Transactions”.
A-3
Exhibit B
Project Wildcat
Preferred Equity
Summary of Principal Terms and Conditions
| Issuer: | Endeavor Group Holdings, Inc. (the “Issuer”) | |
| Purchasers of the Preferred Equity: | Goldman Sachs Asset Management, L.P., on behalf of certain advised funds and managed accounts and Broad Street Principal Investments, L.L.C. (each a “Purchaser” and collectively, the “Purchasers”). | |
| Preferred Equity to be Purchased: | Up to an aggregate amount of 50,000 shares of a single class of Series A Preferred Stock of the Issuer (the “Preferred Equity”), with the Stated Value (as defined below) of $1,000 per share and an initial aggregate Stated Value of up to $50.0 million.
The Purchased Shares shall form and be part of a single series of Preferred Equity of up to an aggregate of 750,000 shares of Preferred Equity to be issued on the Issue Date pursuant to an existing commitment letter entered into by the Issuer and two purchasers thereof (the “Existing Purchasers”). | |
| OpCo Preferred Equity: | On the Issue Date (as defined below), Endeavor Operating Company LLC (“EOC”) shall issue to Endeavor Manager, LLC (“Manager”) or reclassify existing common units of EOC held by Manager into, in each case, a single class of preferred equity units of EOC (the “Mirror Units”), with the foregoing resulting in Mirror Units in the same number, amount of initial stated value and which shall otherwise have economic terms consistent with that of the Preferred Equity. Any proceeds attributable to the Mirror Units received by the Manager shall be applied on a dollar for dollar basis to redeem the Preferred Equity and the Mirror Units may not at any time be transferred by the Manager. | |
| Ranking: | The Preferred Equity, with respect to dividend rights and rights upon the Issuer’s liquidation, winding up or dissolution, will rank senior to all other equity interests of the Issuer. | |
| Issue Date: | If the Closing of the portion of the Preferred Financing for which the Purchasers have provided a Commitment occurs, the Preferred Equity to be purchased by the Purchasers will be issued on the closing date of the Acquisition (such date of issuance, the “Issue Date”), conditioned upon the occurrence of the Ratings Event and the satisfaction or waiver by Purchasers of the conditions set forth in Exhibit C. | |
B-1
| Dividends: | Dividends will accrue and accumulate on a daily basis in arrears from the Issue Date at an annual rate equal to the Preferred Dividend Rate (as defined below) on the Stated Value of the Preferred Equity outstanding from time to time, whether or not declared and paid, and if not declared and paid, will accrue and be compounded semi-annually in arrears (such compounded dividends, the “Compounded Dividends”) on dividend payment dates to be mutually agreed upon by the Issuer and the Purchasers (each such date, a “Dividend Payment Date”). Unless otherwise elected by the Issuer, dividends on the Preferred Equity will not be paid in cash and instead will continue to accrue and be compounded in arrears on each Dividend Payment Date. Dividends (other than Compounded Dividends, which will be redeemable solely in accordance with “Optional Redemptions” and “Mandatory Redemptions” below) will be payable, at the election of the Issuer, in cash at any time, when, as and if declared by the board of directors of the Issuer or any authorized committee thereof. For the avoidance of doubt, declared dividends can only be paid in cash.
“Preferred Dividend Rate” means 14.00% per annum from the Issue Date to the 8th anniversary of the Issue Date, increasing by 100 basis points per annum beginning on the 8th anniversary of the Issue Date and an additional 100 basis points on each anniversary of the Issue Date thereafter; provided that the Preferred Dividend Rate shall not at any time exceed 18.0% per annum (other than as a result of and upon the occurrence of an Event of Default).
“Stated Value” means, at any date of determination and with respect to each outstanding share of Preferred Equity, the sum of (i) $1,000 (adjusted as appropriate in the event of any stock dividend, stock split, recapitalization or combination with respect to the Preferred Equity), plus (ii) the aggregate Compounded Dividends with respect to such share as of the date of determination. | |
| Maturity: | Perpetual. | |
| Optional Redemption: | The Issuer may, at its option on any one or more dates after the Issue Date (any such date, a “Redemption Date”), redeem the Preferred Equity, in whole or in part, in cash at the Redemption Price (as defined below). | |
B-2
| “Redemption Price” means, with respect to any share of Preferred Equity at any Redemption Date: | ||
| (a) with respect to any Redemption Date occurring prior to the First Call Date, an amount per share equal to (A) the sum of (i) the Stated Value as of such Redemption Date and (ii) the Make-Whole Amount as of such Redemption Date, with this clause (ii) discounted to the present value as of the Redemption Date using an annual discount rate (applied quarterly) equal to the rate on U.S. Treasury notes with a maturity closest to the First Call Date plus 50 basis points, plus (B) the aggregate accumulated and unpaid dividends (other than the Compounded Dividends) up to, but excluding, the Redemption Date; and | ||
| (b) with respect to any Redemption Date occurring on or after the First Call Date, an amount per share equal to the (i) Stated Value, multiplied by the applicable Redemption Percentage, plus (ii) the aggregate accumulated and unpaid dividends (other than Compounded Dividends), up to, but excluding, the Redemption Date. | ||
| “Make-Whole Amount” means, with respect to any redemption of any share of Preferred Equity prior to the 24-month anniversary of the Issue Date (the “First Call Date”), an amount equal to the sum of (I) the remaining dividends that would accrue on such share of Preferred Equity being redeemed from the Redemption Date to the First Call Date, plus (II) the premium portion of the Redemption Price (i.e., such portion that is above par) that would be payable on the First Call Date in respect of the Preferred Equity being redeemed, assuming that, for purposes of calculating clauses (I) and (II), that such share of Preferred Equity were to remain outstanding through the First Call Date (including any applicable deemed accumulation and compounding of dividends during such period), and then be redeemed on the First Call Date. | ||
| “Redemption Percentage” means (a) beginning on the First Call Date and until the one-year anniversary of the First Call Date, 102.0% and (b) thereafter, 100%. | ||
| Mandatory Redemption: | In the event of (i) the occurrence of a Change of Control (as such term shall be defined and to be based on clause (b) of the corresponding definition in the Credit Agreement dated as of August 18, 2016 among Zuffa Guarantor, LLC, UFC Holdings, LLC, as the borrower, Goldman Sachs Bank USA, as administrative agent, and the other parties thereto, as amended (but with the deletion of clause (b) of the defined term | |
B-3
| “Sponsor”), and consistent with such definition in the credit agreement to be entered into on or around the Issue Date (the “New Credit Agreement”) but shall require that the Issuer at all times (a) own, directly or indirectly, 100% of the equity interests of Manager and (b) control the majority of the voting interests of EOC), (ii) the consummation of an IPO (as defined below), or (iii) any voluntary or involuntary bankruptcy, liquidation, dissolution or winding up of the Issuer or the Borrower, then all outstanding Preferred Equity shall be redeemed for cash at a price per share equal to the applicable Redemption Price as of such Redemption Date.
An “IPO” means the consummation of any transaction resulting in the common equity interests of the Issuer, a parent entity or a subsidiary thereof, or a successor of the Issuer, becoming listed on the New York Stock Exchange, the NASDAQ Global Market or other internationally recognized stock exchange or similar market including via a consummated bona fide initial underwritten public offering, direct listing or consummation of a merger or acquisition by a publicly listed special purpose acquisition vehicle. | ||
| Documentation: | The Preferred Equity issued on the Issue Date will be purchased by the Purchasers pursuant to a purchase agreement to be mutually agreed between the Issuer and the Purchasers (the “Purchase Agreement”), including representations and warranties substantially consistent with the New Credit Agreement, with such changes as are appropriate for a preferred equity purchase agreement (which shall include, among others, representations as to the capitalization of the Issuer, no registration of the Preferred Equity, due authorization, valid issuance of the Preferred Equity, tax status of the Issuer as a corporation and non-United States real property holding corporation status of the Issuer) and the Preferred Equity will be issued pursuant to a Certificate of Designations (together with the Purchase Agreement, the “Preferred Equity Documentation”). Without limitation of the foregoing, the Preferred Equity Documentation will include certain customary rights for holders sufficient for each holder to comply with the legal and regulatory requirements to which it is subject with respect to: (i) such holder’s use of the Issuer’s name in connection with advertising, marketing or publicity, subject to customary limitations, (ii) transfers by the holder in connection with legal or regulatory matters and (iii) acknowledgments by the Issuer that (x) the Issuer and the holder have no fiduciary relationship and (y) the holder’s investment in the Preferred Equity does not restrict any of the holder’s or its affiliates’ | |
B-4
| business activities, subject to customary carveouts, in each case of clauses (i) through (iii), as reasonably requested by such holder. | ||
| Information Rights: | The Certificate of Designations will include such information rights as is consistent with the New Credit Agreement, but with such modifications for a preferred equity security, including that (i) audited annual financial statements of the Borrower shall be delivered within 120 days (or, in the case of the first fiscal year ending after the Closing Date, 150 days) of the last day of each fiscal year, (ii) unaudited quarterly financial statements of the Borrower shall be delivered within 60 days (or, in the case of the first three fiscal quarters ending after the Closing Date, 90 days) of the last day of each of the first three fiscal quarters and (iii) prior to an IPO, the Borrower shall deliver an annual budget within the time period required for delivery of audited annual financial statements; provided that the financials referred to in clauses (i) and (ii) shall include such information that explains in reasonable detail, the material differences, if any, between the information relating to the Borrower and its consolidated subsidiaries on the one hand, and the Issuer and its consolidated subsidiaries on a standalone basis, on the other hand; | |
| Remedies to Holders: | If an Event of Default (to be defined in a manner consistent with the New Credit Agreement as in effect on the Issue Date, but as applied to the definitive documentation for the Preferred Equity and with customary modifications for a preferred equity security to be mutually agreed among the Issuer and the Purchasers) occurs, the Preferred Dividend Rate shall increase by 2.00%.
The Certificate of Designations shall include customary remedies in the event of any breach, including specific performance and all other available remedies under equity and law, and nothing in the foregoing paragraph shall be deemed to limit the ability of a holder of Preferred Equity to exercise such remedies. | |
| Voting Rights: | The holders of Preferred Equity will not have any voting or consent rights; provided, however, that so long as any Preferred Equity remains outstanding, unless a greater percentage is then required by law, the Issuer will not, without the affirmative vote or consent of the Holder Majority (as defined below), (x) amend, restate, supplement, alter, modify, repeal, waive or change the terms, designations, preferences, rights, privileges or powers of, or the restrictions provided for | |
B-5
| the benefit of, the Preferred Equity, (y) effect any binding exchanges, conversions or reclassifications of the Preferred Equity or the Mirror Units or (z) amend, restate, modify or change the terms of (or otherwise permit the amendment, restatement modification or change of the terms of) the organizational documents of the Issuer or EOC in a manner that results in a disproportionate and adverse effect on the holders of Preferred Equity in any material respect; provided, that, the Certificate of Designations shall include customary minority protections, requiring the affirmative written consent of the affected holder of shares of Preferred Equity in order to amend, restate, supplement, alter, modify, repeal, waive or change the Stated Value, the dividend rate, the timing of payment of dividends and the definition of Redemption Price with respect to such share of Preferred Equity; provided further, for the avoidance of doubt, that after the Closing any issuance of preferred equity (including any preferred equity ranking pari passu with or senior to the Preferred Equity) made in compliance with the debt incurrence covenant shall not require any affirmative vote or consent of any holder of the Preferred Equity.
“Holder Majority” means holders of a majority of the outstanding Preferred Equity, provided, that each of the Existing Purchasers must be included in any such majority (on a separate and not joint basis) so long as such Existing Purchaser or any transferee thereof (to which the Preferred Equity has been transferred in compliance with the terms of the Preferred Equity Documentation) holds as of the applicable date of determination not less than 50.1% of the sum of (i) the Stated Value of the Preferred Equity purchased by such Existing Purchaser on the Closing Date less any Preferred Equity that has been redeemed by the Issuer from such Purchaser or transferee, as applicable, and (ii) the aggregate Compounded Dividends with respect to such Preferred Equity referred to in clause (i) as of the date of determination; provided that (x) with respect to any of the Existing Purchasers, only such Existing Purchaser or any transferee thereof (but not both) shall be required to constitute a Holder Majority at any given time and (y) there shall be no more than two holders at any given time who must be required to be included in the Holder Majority. | ||
| Negative Covenants: | The Preferred Equity Documentation will include customary negative covenants applicable to the Issuer and its restricted subsidiaries that shall be substantially consistent with (but no more restrictive) than those contained in the New Credit | |
B-6
| Agreement as in effect on the Issue Date, with a 25% “cushion” for all baskets (but not for ratios) and with the following exceptions:
(a) with respect to the debt incurrence covenant, incurrence shall be limited to (i) the “Total Leverage Ratio” test pursuant to which the Issuer and its restricted subsidiaries may incur or issue an unlimited amount of indebtedness and preferred equity interests so long as pro forma for such incurrence, the Total Leverage Ratio (which shall be defined in a manner consistent with the New Credit Agreement as in effect on the Issue Date, but shall give effect to the Stated Value of the Preferred Equity (but excluding any Compounded Dividends), and the liquidation preference of any preferred equity interests that are senior to or pari passu with the Preferred Equity or disqualified equity interests of the Issuer and its restricted subsidiaries, in each case, excluding any compounded dividends accruing at a rate of up to 14% per annum that are paid or payable in-kind) does not exceed 9.00:1.00 (it being understood that the foregoing shall not apply to indebtedness under a revolver or other working capital facility or any purchase money indebtedness (including financing lease obligations)) and (ii) customary non-dollar and non-ratio based baskets (other than debt for borrowed money) consistent with the New Credit Agreement as in effect on the Issue Date;
(b) the restricted payments covenant shall prohibit (i) any “in-kind distributions” by the Issuer and its subsidiaries and (ii) the making of any dividend, distribution or redemption that is paid in cash in respect of shares of common equity, as a class, of the Issuer or any of its subsidiaries pursuant to the “builder basket”, the unlimited ratio basket or the general restricted payments basket shall be subject to the requirements under the section titled “RP Offer Amount”; and
(c) limitations to be mutually agreed between the Issuer and the Purchasers with respect to the Issuer or any of its subsidiaries pursuing any business activity in the gaming industry that would require the holders of the Preferred Equity or of any of their respective affiliates or employees to comply with licensing requirements or requirements for invasive or burdensome disclosure of private financial or personal information, or that would |
B-7
| impose any burdensome regulatory obligation or constraints on the holders or their respective affiliates or employees. | ||
| For the avoidance of doubt, (x) except as set forth above, the restricted payments covenant shall include all baskets, ratios and exceptions as set forth in the New Credit Agreement as in effect on the Issue Date, with a 25% “cushion” for all baskets (but not for ratios) and (y) the Issuer shall be permitted to designate subsidiaries as “unrestricted subsidiaries” subject only to certain requirements which shall be consistent with those set forth in the New Credit Agreement. | ||
| RP Offer Amount: | In the event of any proposed dividend, distribution or redemption that is paid in cash with respect to shares of common equity, as a class, of the Issuer or any of its subsidiaries to be made in reliance upon the “builder basket”, the unlimited ratio basket or the general restricted payments basket, the contemplated amount of such dividend, distribution or redemption (or, if less, the amount of the Stated Value of the then outstanding Preferred Equity) (the “RP Offer Amount”) shall first be offered to the holders of Preferred Equity to redeem at par the then outstanding Preferred Equity at the then current Stated Value thereof on a pro rata basis; provided that (x) such holders may elect to receive all or any part of their pro rata amount of such RP Offer Amount and (y) any declined amounts shall be offered to accepting holders (based on their pro rata share of such declined amounts) before such declined amounts may fund any redemption, distribution, payment or transfer of value to any holder of junior equity interests of the Issuer, the Manager or EOC. | |
| Affirmative Covenants: | The Certificate of Designations will contain affirmative covenants with respect to maintenance of existence, compliance with laws and payment of taxes, which shall be substantially consistent with (but no more restrictive) than those to be contained in the New Credit Agreement as in effect on the Issue Date, with such modifications as are customary for a preferred equity security to be mutually agreed among the Issuer and the Purchasers. | |
| Limits on Transferability: | At any time from and after the Issue Date, Preferred Equity may be transferred only with the Issuer’s prior written consent, subject to customary exceptions for (i) transfers by any Purchaser to its affiliates and related funds, excluding in any event any portfolio company of the Purchaser and its affiliates and related funds and (iii) pledges in connection with bona fide | |
B-8
| fund level indebtedness. Each Purchaser shall be permitted to transfer its Preferred Equity without notice or consent being required to any person upon any failure of the Issuer to comply with its obligations under “Mandatory Redemption” above, or any voluntary bankruptcy, liquidation, dissolution or winding up of the Issuer or the Borrower.
Notwithstanding anything to the contrary herein, from and after the fifth anniversary of the Issue Date, the Preferred Equity may be transferred without notice or consent being required to a “qualified institutional buyer” as defined pursuant to Rule 144A promulgated under the Securities Act of 1933, as amended. | ||
| Governance Rights: | None pursuant to the Purchase Agreement or Certificate of Designations. The foregoing shall not impact or affect any governance rights that the Purchasers may have as set forth in any other documentation. | |
| Registration Rights: | None. | |
| Preemptive Rights: | None. | |
| Applicable Law: | As to the Certificate of Designations: Delaware. | |
| As to the Purchase Agreement: New York. | ||
| Tax Provisions: | From and after the Closing Date, the Issuer will be treated as a domestic C corporation for U.S. federal income tax purposes and will not take any action that would cause it not to be a domestic C corporation for U.S. federal income tax purposes or could otherwise cause any holder of the Preferred Equity (each, a “Holder” and, collectively, the “Holders”) to own an interest in an entity that is not a domestic C corporation for U.S. federal income tax purposes, in each case without the consent of each of the Holders, which consent may be withheld in a Holder’s sole discretion.
The Preferred Equity Documentation will include provisions reflecting the parties’ intent that (i) the Preferred Equity is intended to be treated as equity (and not debt) for U.S. federal income tax purposes, (ii) Holders shall not be required to include in income as a dividend for U.S. federal income tax purposes any amounts in respect of the Preferred Equity unless and until such dividends are declared and paid in cash, and (iii) any redemption of the Preferred Equity from a Holder thereof, whether in part or in full, qualifies as a sale or exchange of such Preferred Stock pursuant to Section 302 of the Code and not as a distribution for U.S. federal income tax purposes. The Issuer | |
B-9
| will, and will cause any paying agent or other agent of the Issuer to, report consistently with, and take no positions or actions inconsistent with (including on any IRS Form 1099 or any other information return or by way of withholding), the intended tax treatment set forth in the preceding clauses (i) through (iii) (the “Intended Tax Treatment”) unless otherwise required by a change in law or a final determination of a taxing authority which, in each case, is binding on the Issuer.
The Issuer will represent that it is not, and does not anticipate becoming, a United States real property holding corporation (“USRPHC”) within the meaning of Section 897(c)(2) of the Code. The Issuer shall (a) provide to any Holder, within ten (10) days of such Holder’s written request, (i) a certification that the Preferred Equity does not constitute a “United States real property interest”, in accordance with Treasury Regulations Section 1.897-2(h)(1) or (ii) written notice of its legal inability to provide such a certification and (b) in connection with the provision of any certification pursuant to the preceding clause (a)(i), comply with the notice provisions set forth in Treasury Regulations Section 1.897-2(h). In the event the Issuer becomes aware of any facts or circumstances that could reasonably be expected to cause it to become a USRPHC, the Issuer shall promptly notify the Holders.
The Issuer shall provide any information reasonably requested by the Holders to enable the Holders (and their direct or indirect equity owners) to comply with their U.S. federal income tax reporting and withholding obligations, including, but not limited to, an estimate or determination (and accompanying certification in accordance with Treasury Regulations Section 1.1441-3(c)(2)(ii)(A)) of the amount of the Issuer’s current and accumulated earnings and profits in any taxable year where such estimate or determination is relevant to determining the amount (if any) of any distribution or deemed distribution received by the Holders from the Issuer that is properly treated as a dividend for U.S. federal income tax purposes.
Each Purchaser will provide (i) an IRS Form W-9 or (ii) IRS form W-8 claiming a complete exemption from U.S. withholding tax on dividends. Subject to compliance with the Intended Tax Treatment, the Issuer (and any other applicable withholding agent) may deduct and withhold any amounts required to be deducted and withheld under applicable law with respect to the Preferred Equity (and may set off any such amounts required to be withheld against any dividends or other payments on the Preferred Equity). |
B-10
| Fees and Expenses: | The Preferred Equity Documentation will contain expense reimbursement and indemnity provisions substantially consistent with the Commitment Letter. |
B-11
Exhibit C
Project Wildcat
Preferred Commitment Letter
Summary of Additional Conditions1
The funding of the Preferred Financing by the Purchasers on the Closing Date is subject solely to the satisfaction or waiver by the Purchasers of the applicable conditions set forth in the section entitled Conditions in the body of the Commitment Letter and the following conditions (subject in all respects to the Limited Conditionality Provisions):
1. Since the date of the Acquisition Agreement, no Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Signing Date) shall have occurred and be continuing that would result in the failure of a condition precedent to your obligation to fund the Acquisition under the Acquisition Agreement or that would give you the right (taking into account any notice and cure provisions) to terminate your obligations pursuant to the terms of the Acquisition Agreement.
2. The Acquisition shall have been consummated, or substantially simultaneously with the purchase of the Preferred Financing and the initial borrowings under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, consents or waivers by Buyer (or any of its affiliates) thereto, other than those modifications, amendments, consents or waivers by Buyer (or its affiliate) that are materially adverse to the interests of the Purchasers in their capacity as such when taken as a whole (it being understood that any modification, amendment, consent or waiver to the definition of Material Adverse Effect shall be deemed to be materially adverse to the interests of the Purchasers), unless consented to in writing by the Purchasers (such consent not to be unreasonably withheld, delayed or conditioned); provided that the Purchasers shall be deemed to have consented to such amendment, supplement, waiver or modification unless they shall object in writing thereto within three business days of being notified or otherwise becoming aware of such amendment, waiver, modification, consent or waiver being delivered; provided, further, that, any dispositions permitted under the Acquisition Agreement shall not be deemed materially adverse to the interests of the Purchasers in their capacity as such, whether taken individually or in the aggregate; provided, further, that without limiting any other rights and/or obligations of this Exhibit C, any modification, amendment or express waiver or consents by Buyer (or its affiliate) that results in (a) a reduction in the Acquisition Consideration shall not be deemed to be materially adverse to the Purchasers if such reduction is applied (i) first to reduce the Equity Contribution to 35.0%, subject to the Minimum Common Equity Contribution of at least 30.0% and (ii) thereafter, (I) 65.0% to reduce the Initial Term A Facility until the amount of commitments in respect of the Initial Term A Facility is $0, and thereafter to reduce the amount of commitments in respect of the Initial Term B Facility and the Margin Bridge Facility and (II) 35.0% to reduce the Equity Contribution, subject to the Minimum Common Equity Contribution
| 1 | All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Exhibit C is attached, including Exhibits A and B thereto. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit C shall be determined by reference to the context in which it is used. |
C-1
of at least 30.0% and (b) an increase in the Acquisition Consideration shall be deemed to be materially adverse to the Purchasers. Any reduction in the amount of the Equity Contribution shall be pro rata among the components of common equity contribution and the Preferred Equity or, at the option of the Purchasers, shall reduce only the common equity contribution.
3. Confirmation from you that the Common Equity Contribution shall have been made, or substantially simultaneously with the funding of the Preferred Financing, shall be made, in at least the amount set forth in Exhibit A to the Commitment Letter.
4. (a) Substantially simultaneously with the initial borrowing under the Term Facilities and the consummation of the Acquisition, the Refinancing shall be consummated and (b) the borrowing of the Facilities shall have been made, or substantially simultaneously with the funding of the Preferred Financing, shall be made, in an aggregate amount not to exceed that which is set forth with respect to the Facilities on Exhibit B of the Commitment Letter.
5. The Purchasers shall have received (a) audited consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, the two most recently completed fiscal years ended at least 120 days prior to the Closing Date and (b) unaudited condensed consolidated balance sheets of the Target and its consolidated subsidiaries as at the end of, and related unaudited condensed consolidated statements of operations, comprehensive income (loss), redeemable interests and shareholders’/member’s equity and cash flows of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the last fiscal quarter of the fiscal year) of the Target and its consolidated subsidiaries subsequent to the last fiscal year for which financial statements were prepared pursuant to the preceding clause (a) and ended at least 60 days before the Closing Date (in the case of this clause (b), without footnotes). The Purchasers hereby acknowledge (x) receipt of the audited financial statements referred to in clause (a) above for the fiscal years ended December 31, 2021, December 31, 2022 and December 31, 2023, (y) receipt of the unaudited financial statements referred to in clause (b) above for the three months ended March 31, 2024 and (z) that the public filing by the Target with the Securities and Exchange Commission of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clause (a) or (b), as applicable, of this paragraph.
6. The Closing Date shall have occurred on or before the Expiration Date.
7. The Purchasers shall have received at least three business days prior to the Closing Date, all documentation and other information about Holdings, the Borrower and the Issuer that shall have been reasonably requested by the Purchasers in writing at least ten business days prior to the Closing Date and that the Purchasers reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, including, if the Issuer qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (as defined below), a Beneficial Ownership Certification (as defined below) in relation to the Issuer. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (as defined below), which certification shall be substantially
C-2
similar in substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers included as Appendix A to the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
8. Subject in each case to the Limited Conditionality Provisions, (a) the Specified Representations shall be accurate in all material respects; provided that, any Specified Representations qualified by materiality shall be, as so qualified, accurate in all respects, and (b) the Specified Acquisition Agreement Representations shall be accurate in all material respects provided that, any Specified Acquisition Agreement Representations qualified by materiality shall be, as so qualified, accurate in all respects.
9. Subject in all respects to the Limited Conditionality Provisions, (a) the execution and delivery by the Issuer of the Preferred Equity Documentation (as defined in Exhibit B to the Commitment Letter) which shall be in accordance with the terms of the Commitment Letter and the Term Sheet and (b) delivery to the Purchasers of the following (the “Closing Deliverables”): (i) customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation/organization, in each case with respect to the Issuer and (ii) a solvency certificate, dated as of the Closing Date, after giving effect to the Transactions, substantially in the form of Annex II to this Commitment Letter, of a senior financial executive or officer of the Issuer (or, at the option of the Issuer, a third party opinion as to the solvency of the Issuer and its subsidiaries on a consolidated basis issued by a nationally recognized firm).
10. All fees required to be paid on the Closing Date pursuant to the Commitment Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Issuer), shall, upon the funding of the Preferred Financing, have been, or will be substantially simultaneously, paid (which amounts may be offset against the proceeds of the Preferred Financing).
C-3
Annex I
Closing Payment
The Closing Payment payable to each of the Purchasers shall be equal to 2.00% of the amount of each Purchaser’s Commitment that is funded on the Closing Date.
Annex I-1
Annex II
Solvency Certificate
[ ], 202[ ]
This Solvency Certificate (this “Certificate”) is delivered pursuant to Section [ ] of the Purchase Agreement, dated as of [ ] (as amended as of the date hereof, and as it may be further amended, supplemented or otherwise modified, the “Purchase Agreement”), by and among [ ] (the “Issuer”) and [ ], a [ ]. Unless otherwise defined herein, capitalized terms used in this Certificate shall have the meanings set forth in the Purchase Agreement.
I, [ ], the [ ] of the Issuer, in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Issuer that as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1. For purposes of this certificate, the terms below shall have the following definitions:
(a) “Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Issuer and its subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b) “Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Issuer and its subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(c) “Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Issuer and its subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.
(d) “Will be able to pay their Liabilities as they mature”
As of the date hereof, the Issuer and its subsidiaries on a consolidated basis taken as a whole will have sufficient assets and cash flow to pay their Liabilities as those liabilities mature or (in the case of contingent Liabilities) otherwise become payable, in light of business conducted or anticipated to be conducted by the Issuer and its subsidiaries as reflected in the projected financial statements and in light of the anticipated credit capacity.
Annex II-1
(e) “Do not have Unreasonably Small Capital”
The Issuer and its subsidiaries on a consolidated basis taken as a whole after consummation of the Transactions is a going concern and has sufficient capital to reasonably ensure that it will continue to be a going concern immediately following the consummation of the Transactions. I understand that “unreasonably small capital” depends upon the nature of the particular business or businesses conducted or to be conducted, and I have reached my conclusion based on the needs and anticipated needs for capital of the business conducted or anticipated to be conducted by the Issuer and its subsidiaries on a consolidated basis as reflected in the projected financial statements and in light of the anticipated credit capacity.
2. Based on and subject to the foregoing, I hereby certify on behalf of the Issuer that after giving effect to the consummation of the Transactions, it is my opinion that (i) the Fair Value of the assets of the Issuer and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities, (ii) the Present Fair Salable Value of the assets of the Issuer and its subsidiaries on a consolidated basis taken as a whole exceeds their Liabilities; (iii) the Issuer and its subsidiaries on a consolidated basis taken as a whole do not have Unreasonably Small Capital; and (iv) the Issuer and its subsidiaries taken as a whole will be able to pay their Liabilities as they mature.
3. In reaching the conclusions set forth in this Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by the Issuer and the Subsidiaries after consummation of the transactions contemplated by the Purchase Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
| By: |
| |
| Name: Title: [Chief Financial Officer] |
Annex II-2
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