The Warranty Deed
In connection with the execution and delivery of the Implementation Deed, certain holders of Target Shares and members of management of the Target (the “Warrantors”) entered into a Warranty Deed, dated November 27, 2020 (the “Warranty Deed”). Subject to the terms and conditions set forth in the Warranty Deed, the Warrantors represented to the Purchaser the accuracy of certain intellectual property, legal, operational, privacy and security, regulatory, tax and other matters related to the Target’s business.
The foregoing summaries of the Implementation Deed and Warranty Deed are not complete and subject to and qualified in its entirety by reference to the copy of these agreements attached as Exhibit 2.1 and 2.2, respectively, which are incorporated herein by reference. The Implementation Deed and Warranty Deed have been filed to provide investors and securityholders with information regarding their terms and conditions. It is not intended to provide any other information about the Company, the Purchaser, or the Target. The Implementation Deed and Warranty Deed contain representations, warranties, and covenants of the parties thereto made to and solely for the benefit of each other, and such representations, warranties, and covenants may be subject to materiality and other qualifiers applicable to the contracting parties that differ from those that may be viewed as material to investors. Investors and securityholders should not rely on the representations, warranties, and covenants as characterizations of the actual state of facts. Moreover, information concerning the subject matter of the representations, warranties, and covenants may change after the date of the Implementation Deed and Warranty Deed, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
The Shareholder Agreement
In connection with the Transaction, the Parent Guarantor and the Purchaser have entered into a shareholder agreement, dated November 27, 2020 (the “Shareholder Agreement”) with certain (but not all) Rollover Shareholders. In addition to provisions related to the Subscription, the Shareholder Agreement includes certain transfer restrictions that limit the ability of all of the holders of shares in the Purchaser from selling or otherwise transferring their interests in the Purchaser. The Shareholder Agreement also contains customary representations, warranties and covenants made by the parties in respect of the transactions contemplated by the Shareholder Agreement.
Term Loan Commitment Letter
In connection with entering into the Implementation Deed, the Company entered into a commitment letter, dated November 27, 2020 (the “Term Loan Commitment Letter”), with Bank of America, N.A. and BofA Securities, Inc. (such financial institutions being referred to collectively as the “Term Loan Commitment Parties”), pursuant to which the Term Loan Commitment Parties have committed (the “Term Loan Facility Commitment”) to provide a 364-day senior unsecured term loan facility in an aggregate principal amount of $2.0 billion, the proceeds of which will be available in a single drawing on the closing date of the Transaction, and used to directly or indirectly finance the Transaction and to pay related fees and expenses. The Term Loan Commitment Letter contains conditions to funding of the Term Loan Facility on a “certain-funds” basis. The interest rate under the Term Loan Facility will be based on LIBOR plus an applicable margin, which will range from (a) 1.50% to 2.25% per annum, if the consolidated leverage ratio for the Company is less than 3.00 to 1.00 and (b) 1.625% to 2.375% per annum, if the consolidated leverage ratio for the Company is equal to or greater than 3.00 to 1.00. The Company will be required to prepay the Term Loan Facility with net cash proceeds received from non-ordinary course asset sales, debt incurrences and equity issuances, in each case subject to certain exceptions. The Term Loan Facility Commitment will be reduced on a dollar-for-dollar basis by certain other loan commitments which may be obtained by the Company for the purpose of financing the Transaction. The Term Loan Facility will otherwise have terms substantially consistent with the Company’s existing revolving credit facility (the “Existing Revolving Facility”), including covenants and events of default.
The Company intends to obtain certain consents from the lenders party to its Existing Revolving Facility in connection with the Transaction (the “Revolver Consents” and the Existing Revolving Facility as amended, restated, supplemented or otherwise modified pursuant to the Revolver Consents, the “Revolving Facility”), to permit a one-time “limited conditionality” draw under the Revolving Facility in connection with the consummation of the Transaction, so that the conditions precedent to funding the Transaction are no less favorable to the Company that the conditions precedent in the Term Loan Commitment Letter. If the Revolving Consents are obtained, the Revolving Facility will have terms substantially consistent with the Existing Revolving Facility, except for (a) the one-time “limited conditionality” draw conditions to be used in connection with the Transaction and (b) an increase in the
