MORGAN STANLEY SENIOR FUNDING, INC. 1585 Broadway New York, New York10036

MORGAN STANLEY SENIOR FUNDING, INC. 1585 Broadway New York, New York  10036	WELLS FARGO SECURITIES, LLC WF INVESTMENT HOLDINGS, LLC 550 South Tryon Street, Charlotte, North Carolina 28202
THE ROYAL BANK OF SCOTLAND PLC AND RBS SECURITIES INC. 600 Washington Boulevard Stamford, CT 06901

 

June 29, 2014

 

Consolidated Communications, Inc.

121 South 17th Street

Mattoon, Illinois 61938

Attention:  Steve Childers, Chief Financial Officer

 

$140 million Senior Unsecured Bridge Facility

 

Ladies and Gentlemen:

 

Consolidated Communications, Inc. (“you” or the “Borrower”), a wholly-owned subsidiary of Consolidated Communications Holdings, Inc. (“Holdings”), have advised Morgan Stanley Senior Funding, Inc. (“MSSF”), WF Investment Holdings, LLC (“WFIH”), Wells Fargo Securities, LLC (“WFS”) The Royal Bank of Scotland plc (“RBS”) and RBS Securities Inc. (“RBSSI” and together with MSSF, WFIH, WFS and RBS, “we,” “us” or the “Commitment Parties”) that you intend  to acquire (the “Acquisition”) 100% of the outstanding capital stock of a company previously identified to us and code-named Sky (the “Target”) pursuant to an agreement and plan of merger (including all annexes and exhibits thereto, as amended, modified and supplemented in accordance with the terms hereof, the “Acquisition Agreement”) among Holdings, a merger subsidiary of Holdings and the Target (the “Seller”).  All references to “dollars” or “$” in this Commitment Letter (as defined below) are references to United States dollars.

 

We understand that the total funding required to effect the Acquisition, to repay and redeem existing indebtedness of the Target and its subsidiaries (the “Refinancing”) and to pay the fees and expenses incurred in connection therewith shall be $370  million and shall be provided from (i) the issuance of equity interests of Holdings to the selling shareholders of the Target as partial consideration for the Acquisition (the “Equity Issuance”), (ii) the issuance (either by private placement or an underwritten public sale) by the Borrower of senior unsecured notes, which may be “additional notes” under the Existing Indenture (as defined in Exhibit A) (such additional notes, the “Notes”) or, if and to the extent that the Borrower is unable to issue the Notes, the incurrence of senior unsecured bridge loans (the “Bridge Loans”) under a senior unsecured bridge facility (the “Bridge Facility”), in each case, in an aggregate principal amount that will yield up to $140 million in gross proceeds to the Borrower, as described in the summary of terms and conditions attached hereto as Exhibit A (the “Bridge Term Sheet”) and (iii) cash on-hand of the Borrower.  The Acquisition, the entering into of this Commitment Letter (as defined below), the Equity Issuance, the issuance of the Notes and/or the borrowings under the Bridge Facility, the Refinancing and the related transactions contemplated by the foregoing as well as the payment of fees, commissions an expenses in connection with each of the foregoing, are collectively referred to as the “Transactions.”  No other financing will be required for the Transactions.

 

1. Commitments.  In connection with the Transactions, each of MSSF, WFIH and RBS is pleased to advise you of its several but not joint commitment to provide (i) in the case of MSSF, 60% of entire aggregate principal amount of the Bridge Facility, (ii) in the case of WFIH, 25% of entire aggregate principal amount of the Bridge Facility and (iii) in the case of RBS, 15% of entire aggregate principal amount of the Bridge Facility, in each case, subject to and on the terms and conditions set forth herein and in the Bridge Term Sheet and the additional conditions attached as Exhibit B (the “Conditions Term Sheet;” and together with the Bridge Term Sheet, the “Term Sheets” and together with this agreement and the Fee Letter (as defined below), the “Commitment Letter”).  It is agreed that each of MSSF, WFS and RBSSI shall act as a joint lead arranger and joint book-runner for the Bridge Facility (in such capacity, the “Lead Arrangers”). It is further agreed that MSSF will act as syndication agent for the Bridge Facility and as administrative agent for the Bridge Facility (in such capacity, the “Administrative Agent”).  It is further agreed that no additional advisors, agents, co-agents, arrangers or bookmanagers will be appointed and no Lender (as defined below) will receive compensation with respect to the Bridge Facility outside the terms contained in this Commitment Letter and the fee letter (the “Fee Letter”) executed simultaneously herewith in order to obtain its commitment to participate in the Bridge Facility, in each case unless you and we so agree. Notwithstanding the foregoing, it is agreed that MSSF will have “left” placement in any and all marketing materials or other documentation used in connection with the Bridge Facility and will have the leading roles and responsibilities conventionally associated with such “left” placement.

 

You agree that the closing date of the Transactions including the concurrent closing of the Bridge Facility and, if applicable, the issuance of the Notes (the “Closing Date”) shall be a date mutually agreed upon between you and us, but in any event shall not occur until all of the terms and conditions in this Commitment Letter have been satisfied.  The terms of this commitment are not limited to those set forth in this Section 1 of this Commitment Letter.  Those matters that are not covered or made clear in this Commitment Letter are subject to mutual agreement of the parties.  Notwithstanding anything to the contrary set forth in this Commitment Letter, the commitment and other obligations of the Commitment Parties hereunder are subject solely to the satisfaction of the following conditions in a manner acceptable to the Commitment Parties:

 

(a) the negotiation, execution and delivery of definitive loan documentation for the Bridge Facility (the “Bridge Documentation” or the “Financing Documentation”), in each case in form and substance satisfactory to the Commitment Parties and their counsel (but no less favorable than the terms and conditions set forth in the Term Sheets), including without limitation credit agreements, guaranties and other documentation reflecting, among other things, the terms and conditions set forth herein and in the Term Sheets;

 

(b) since December 31, 2013, the absence of any change, effect, event, occurrence, state of facts, or development that has had or would reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect or a Holdings Material Adverse Effect (each as defined below);

 

(c) the Closing Date shall not occur less than 20 calendar-days after both receipt of the Ratings (as defined below) and delivery to the Lead Arrangers of the final confidential information memorandum referred to herein; and

 

(d) the satisfaction of each of the other conditions set forth (i) under the heading “Conditions Precedent to Funding” on Exhibit A to this Commitment Letter and (ii) on Exhibit B to this Commitment Letter.

 

Notwithstanding anything in this Commitment Letter, the Fee Letter or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations relating to the Borrower, the Target and their respective subsidiaries and businesses the accuracy of which shall be a condition to availability of the Bridge Facility on the Closing Date shall be (A) such of the representations made by the Target in the Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that you have the right to terminate your obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement (the “Acquisition Agreement Representations”), and (B) the Specified Representations (as defined below) and (ii) the terms of the Financing Documentation shall be in a form such that they do not impair availability of the Bridge Facility on the Closing Date if the conditions set forth in this Commitment Letter are satisfied.  For purposes hereof, “Specified Representations” means the representations and warranties relating as to due organization, solvency, corporate power and authority, the due authorization, execution, delivery and enforceability of the Financing Documentation, the Financing Documentation not conflicting with charter documents, law or material contracts, Federal Reserve margin regulations, Investment Company Act, Patriot Act, FCPA, sanctions, anti-money laundering laws, status of the Bridge Facility as senior debt and “designated senior debt.”

 

The term “Target Material Adverse Effect” shall mean (i) a material adverse effect on the business, results of operations or financial condition of the Target and its Subsidiaries taken as a whole or (ii) a material adverse effect on the Target’s ability to consummate the Transactions on a timely basis; provided, however, that in determining whether a Target Material Adverse Effect has occurred, there shall be excluded any effect on the Target or its Subsidiaries relating to or arising in connection with (A) any adverse change, effect, event or occurrence, state of facts or developments to the extent the public announcement or the pendency of the Acquisition Agreement or the transactions contemplated thereby or any actions required to be taken (or refrained from being taken) in compliance therewith or otherwise with the consent of the other party thereto, including the impact thereof on the relationships of the Target or any of its Subsidiaries with customers, suppliers, distributors, consultants, employees or independent contractors or other third parties with whom the Target or any of its Subsidiaries has any relationship and including any litigation brought by any shareholder of the Target in connection with the Transactions, (B) any failure by the Target to meet any projections or forecasts for any period ending (or for which revenues or earnings are released) on or after the date hereof (it being understood that this clause (B) does not and shall not be deemed to apply to the underlying cause or causes of any such failure), (C) any change in federal, state, non-U.S. or local law, regulations, policies or procedures, or interpretations thereof, generally accepted accounting principles (“GAAP”) or regulatory accounting requirements applicable or potentially applicable to the industries in which the Target or its Subsidiaries operate, (D) changes generally affecting the industries in which the Target or its Subsidiaries operate that are not specifically related to the Target and its Subsidiaries and do not have a materially disproportionate adverse effect on the Target and its Subsidiaries, taken as a whole, (E) changes in economic conditions (including changes in the prevailing interest rates) in the United States, in any region thereof, or in any non-U.S. or global economy that do not have a materially disproportionate adverse effect on the Target and its Subsidiaries, taken as a whole or (F) any attack on, or by, outbreak or escalation of hostilities or acts of terrorism involving, the United States, or any declaration of war by the United States Congress or any hurricane or other natural disaster.

 

The term “Holdings Material Adverse Effect” shall mean a material adverse effect on the business, results of operations or financial condition of Holdings and its Subsidiaries taken as a whole or (ii) a material adverse effect on Holdings’ or Merger Sub’s ability to consummate the Transactions on a timely basis; provided, however, that in determining whether a Holdings Material Adverse Effect has occurred, there shall be excluded any effect on the Holdings or its Subsidiaries relating to or arising in connection with (A) any adverse change, effect, event or occurrence, state of facts or developments to the extent the public announcement or the pendency of the Acquisition Agreement or the transactions contemplated thereby or any actions required to be taken (or refrained from being taken) in compliance therewith or otherwise with the consent of the other party thereto, including the impact thereof on the relationships of Holdings or any of its Subsidiaries with customers, suppliers, distributors, consultants, employees or independent contractors or other third parties with whom Holdings or any of its Subsidiaries has any relationship and including any litigation brought by any shareholder of the Target or Holdings in connection with the Transactions, (B) any failure by Holdings to meet any projections or forecasts for any period ending (or for which revenues or earnings are released) on or after the date hereof (it being understood that this clause (B) does not and shall not be deemed to apply to the underlying cause or causes of any such failure), (C) any change in federal, state, non-U.S. or local law, regulations, policies or procedures, or interpretations thereof, GAAP or regulatory accounting requirements applicable or potentially applicable to the industries in which Holdings or its Subsidiaries operate, (D) changes generally affecting the industries in which Holdings or its Subsidiaries operate that are not specifically related to Holdings and its Subsidiaries and do not have a materially disproportionate adverse effect on the Holdings and its Subsidiaries, taken as a whole, (E) changes in economic conditions (including changes in the prevailing interest rates) in the United States, in any region thereof, or in any non-U.S. or global economy that do not have a materially disproportionate adverse effect on the Holdings and its Subsidiaries, taken as a whole or (F) any attack on, or by, outbreak or escalation of hostilities or acts of terrorism involving, the United States, or any declaration of war by the United States Congress or any hurricane or other natural disaster.

 

As used in the preceding two paragraphs, (i) the term “Subsidiary” shall mean, with respect to any person, any corporation, partnership, joint venture, limited liability company or any other entity that is consolidated with such person for financial reporting purposes, and (ii) the term “Merger Sub” shall refer to Sky Merger Sub, a Minnesota corporation and a wholly owned subsidiary of Holdings.

 

2. Syndication.  The Lead Arrangers reserve the right, prior to or after execution of the definitive credit documentation for the Bridge Facility, to syndicate all or part of the Commitment Parties’ commitments for the Bridge Facility to one or more financial institutions or institutional lenders in consultation with you, and the commitments of the Commitment Parties hereunder in respect of the Bridge Facility shall be reduced as and when commitments are received from such other lenders in respect of the Bridge Facility.  Without limiting your obligations to assist with syndication efforts as set forth herein, the Commitment Parties agree that completion of such syndications is not a condition to its commitments hereunder.

 

The Lead Arrangers intend to commence syndication efforts promptly after the execution of this Commitment Letter by you and you agree to actively assist the Lead Arrangers in achieving a syndication in respect of the Bridge Facility that is satisfactory to the Lead Arrangers.  Such syndication will be accomplished by a variety of means, including direct contact during the syndication for the Bridge Facility between senior management and advisors of the Target and the proposed syndicate members for the Bridge Facility (the “Lenders”).  The Lead Arrangers will manage all aspects of the syndication in consultation with you, including the timing, scope and identity of potential lenders, any agency or other title designations or roles awarded to any potential lender, any compensation provided to each potential lender from the amount paid to the Lead Arrangers pursuant to this Commitment Letter and the Fee Letter and the final allocation of the commitments in respect of the Bridge Facility among the Lenders.

 

To assist the Commitment Parties in their syndication efforts, you hereby covenant and agree:

 

(a) to provide and cause your advisors and representatives to provide, and use your commercially reasonable efforts to cause the Target, its subsidiaries, its advisors, and its representatives to provide, the Lead Arrangers and the other relevant syndicate members upon request with all information reasonably requested by the Lead Arrangers, including but not limited to the Projections (as defined below) and financial and other information, reports, memoranda and evaluations prepared by, on behalf or at the direction of you, the Target or its subsidiaries or your or their respective advisors;

 

(b) to prepare one or more confidential information memoranda (including public and private versions thereof) and other materials, in each case in form and substance customary for transactions of this type and otherwise satisfactory to the Lead Arrangers, to be used in connection with the syndication of the Bridge Facility;

 

(c) to use your commercially reasonable efforts to ensure that the syndication efforts of the Lead Arrangers benefit materially from your existing lending and banking relationships and the existing lending and banking relationships of the Target and its subsidiaries;

 

(d) to use your commercially reasonable efforts to obtain monitored public corporate credit or family ratings of the Borrower after giving effect to the Transactions and ratings for each of the Bridge Facility and the Notes, as the case may be, in each case, from Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. (“S&P”) (collectively, the “Ratings”);

 

(e) to ensure that, prior to and until the completion of the syndication of the Bridge Facility (as determined by the Commitment Parties and notified in writing to you), there are no competing issuances or offerings of debt securities, or placement or arrangement of any commercial bank or other debt facilities or securitizations (including any renewals or refinancing thereof) by Holdings, the Borrower, the Target or any of your or their respective subsidiaries or affiliates, being discussed, attempted, offered, placed or arranged (other than the Notes), including renewals or refinancing of any existing debt without the consent of the Lead Arrangers (it being understood that this condition shall survive the Closing Date as a covenant until the completion of the syndication of the Bridge Facility (as determined by the Commitment Parties and notified in writing to you)); and

 

(f) to otherwise assist the Lead Arrangers in their syndication efforts, including by making available your and using commercially reasonable efforts to make available the Target’s officers, representatives and advisors, in each case from time to time and to attend and make presentations regarding the business and prospects of the Borrower at one or more meetings of Lenders.

 

3. Information.  You represent and warrant that (a) all information (other than the Projections referred to below) that has been or will hereafter be made available by or on behalf of you, the Borrower, the Target or by any of your or their respective agents or representatives in connection with the Transactions (the “Information”) to the Commitment Parties or any of their respective affiliates, agents or representatives or to any Lender or any potential Lender is and will be, when furnished and taken as a whole, complete and correct in all material respects and does not and will not 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 misleading in the light of the circumstances under which such statements were or are made and (b) all financial projections (the “Projections”), if any, that have been or will be prepared by you or on your behalf or by any of your representatives and made available to the Commitment Parties or any of their respective affiliates, agents or representatives or to any Lender or any potential Lender in connection with the Transactions have been or will be prepared in good faith based upon reasonable assumptions (it being understood by the Commitment Parties that such Projections are subject to significant uncertainties and contingencies and that no assurance can be given that any particular Projections will be realized).  You agree that, if at any time prior to the Closing Date and, if requested by us, for a reasonable period (not to exceed 90 days) thereafter as is necessary to complete the syndication of the Bridge Facility any of the representations or warranties in the preceding sentence would be incorrect if the Information or Projections were being furnished, and such representations and warranties were being made, at such time, then you will promptly supplement, or cause to be supplemented, the Information and Projections so that such representations and warranties will be correct at such time.  You agree that, in issuing the commitments hereunder and in arranging and syndicating the Bridge Facility, we will be entitled to use and rely on the Information and the Projections furnished by you or on your behalf or on behalf of the Target without independent verification thereof.

 

You agree that the Lead Arrangers may make available any Information and Projections (collectively, the “Company Materials”) to potential Lenders by posting the Company Materials on IntraLinks, the Internet or another similar electronic system (the “Platform”).  You further agree to assist, at the request of the Lead Arrangers, in the preparation of a version of a confidential information memorandum and other marketing materials and presentations to be used in connection with the syndication of the Bridge Facility, consisting exclusively of information or documentation that is either (i) publicly available (or contained in the prospectus or other offering memorandum for the Notes) or (ii) not material with respect to the Borrower, the Target, the Seller or their respective subsidiaries or any of their respective securities for purposes of foreign, United States federal and state securities laws (all such information and documentation being “Public Lender Information”).  Any information and documentation that is not Public Lender Information is referred to herein as “Private Lender Information.”  You further agree that each document to be disseminated by the Lead Arrangers to any Lender or potential Lender in connection with the syndication of the Bridge Facility will be identified by you as either (i) containing Private Lender Information or (ii) containing solely Public Lender Information.  You acknowledge that the following documents will contain solely Public Lender Information: (i) drafts and final definitive documentation with respect to the Bridge Facility; (ii) administrative materials prepared by the Lead Arrangers for potential Lenders (e.g. a lender meeting invitation, allocation and/or funding and closing memoranda); and (iii) notification of changes in the terms of the Bridge Facility.

 

4. Costs, Expenses and Fees.  You agree to pay or reimburse the Lead Arrangers, the Administrative Agent and the Commitment Parties for all reasonable costs and expenses incurred by the Lead Arrangers, the Administrative Agent and the Commitment Parties or their respective affiliates (whether incurred before or after the date hereof) in connection with the Bridge Facility and the preparation, negotiation, execution and delivery of this Commitment Letter and Fee Letter and the Financing Documentation  including without limitation, the fees and disbursements of counsel, regardless of whether any of the Transactions is consummated.  You further agree to pay all reasonable costs and expenses of the Lead Arrangers, the Administrative Agent and the Commitment Parties and their respective affiliates (including, without limitation, fees and disbursements of counsel) incurred in connection with the enforcement of any of its rights and remedies hereunder.  In addition, you hereby agree to pay when and as due the fees described in the Fee Letter.  Once paid, such fees shall not be refundable under any circumstances.  The terms of the Fee Letter are an integral part of the Commitment Parties’ commitments hereunder and constitute part of this Commitment Letter for all purposes hereof, and compliance with the terms thereof is a condition precedent to the Commitment Parties’ commitments hereunder.

 

5. Indemnity.  You agree to indemnify and hold harmless each of the Lead Arrangers, the Commitment Parties, the Administrative Agent and Lenders and their respective affiliates (including, without limitation, controlling persons) and each director, officer, employee, advisor, agent, affiliate, successor, partner, representative and assign of each of the foregoing (each an “Indemnified Person”) from and against any and all actions, suits, investigation, inquiry, claims, losses, damages, liabilities, expenses or proceedings of any kind or nature whatsoever which may be incurred by or asserted against or involve any such Indemnified Person as a result of or arising out of or in any way related to or resulting from this Commitment Letter, the Fee Letter, the Bridge Facility, the use of proceeds thereof, the Transactions or the other transactions contemplated thereby (regardless of whether any such Indemnified Person is a party thereto and regardless of whether such matter is initiated by a third party or otherwise) (any of the foregoing, a “Proceeding”), and you agree to reimburse each Indemnified Person upon demand for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating, defending, preparing to defend or participating in any such Proceeding; provided, however, that no Indemnified Person will be indemnified for any such cost, expense or liability to the extent determined by a final, nonappealable judgment of a court of competent jurisdiction to have resulted solely from the gross negligence or willful misconduct of such Indemnified Person.  In the case of any Proceeding to which the indemnity in this paragraph applies, such indemnity and reimbursement obligations shall be effective, whether or not such Proceeding is brought by you, Holdings, the Target, any of your or their respective securityholders or creditors, an Indemnified Person or any other person, or an Indemnified Person is otherwise a party thereto and whether or not any aspect of the Commitment Letter, the Fee Letter, the Bridge Facility or any of the Transactions is consummated.  Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person shall be responsible or liable for damages arising from the unauthorized use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission and (ii) no Indemnified Person shall have any liability (whether direct or indirect, in contract, tort or otherwise) to you, Holdings, the Target, or any of your or their respective securityholders or creditors arising out of, related to or in connection with the Commitment Letter, the Fee Letter, the Bridge Facility or any of the Transactions or the other transactions contemplated thereby, except to the extent of direct (as opposed to special, indirect, consequential or punitive) damages determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted solely from such Indemnified Person’s gross negligence or willful misconduct, and it is further agreed that the Commitment Parties shall have liability only to you (as opposed to any other person).

 

You will not, without the prior written consent of the Indemnified Person, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any Proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person from all liability arising out of such Proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability, or a failure to act by or on behalf of such Indemnified Person.

 

6. Confidentiality.  This Commitment Letter is delivered to you on the condition that neither the existence of this Commitment Letter nor the Fee Letter nor any of their contents shall be disclosed, directly or indirectly, to any other person or entity except (i) to your directors, officers, employees and advisors on a “need-to-know” basis and only in connection with the evaluation of the Transactions and (ii) as may be compelled in a judicial or administrative proceeding or as otherwise required by law; provided, however, it is understood and agreed that you may disclose (a) this Commitment Letter and the Fee Letter on a confidential basis to the board of directors and advisors of the Target in connection with their consideration of the Transactions (provided that the Fee Letter is redacted in a manner reasonably satisfactory to the Lead Arrangers); (b) after your acceptance hereof, this Commitment Letter (but not the Fee Letter), in filings with the SEC and other applicable regulatory authorities and stock exchanges, including without limitation in connection with seeking shareholder approval of the transactions contemplated by the Acquisition Agreement; (c) upon notice to the Commitment Parties, this Commitment Letter and the existence and contents hereof (but not the Fee Letter or the contents thereof other than the existence thereof and the contents thereof as part of projections, pro forma information and a generic disclosure of aggregate sources and uses to the extent customary in marketing materials and other required filings) in any prospectus or offering memoranda relating to the Notes, in any syndication or other marketing material in connection with the Bridge Facility or in connection with any public filing requirement; (d) this Commitment Letter and the Fee Letter, after written notice to the Lead Arrangers, in defense of any legal action brought by or against any of you or any of your affiliates, successors or assigns or any of their respective officers, directors, employees, agents, advisors or other representatives, or as may be necessary or advisable in connection with the assertion of any claim or right under or in connection with this Commitment Letter or the Fee Letter; and (e) after your acceptance hereof, this Commitment Letter (but not the Fee Letter), on a confidential basis to any ratings agencies and valuation firms.

 

7. Patriot Act.  We hereby notify you that pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (October 26, 2001) (as amended, the “Patriot Act”), we and the other Lenders are required to obtain, verify and record information that identifies Holdings, the Borrower and any other Guarantors, which information includes the name, address, tax identification number and other information regarding them that will allow any of us or such Lender to identify Holdings, the Borrower and any other Guarantors in accordance with the Patriot Act.  This notice is given in accordance with the requirements of the Patriot Act and is effective on behalf of the Commitment Parties and each other Lender.

 

8. Governing Law etc.  This Commitment Letter and the Fee Letter shall be governed by, and construed in accordance with the laws of the State of New York.  Any right to trial by jury with respect to any claim, action, suit or proceeding arising out of or contemplated by this Commitment Letter and/or the related Fee Letter is hereby waived.  You hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and New York State courts located in the City of New York, Borough of Manhattan (and appellate courts thereof) in connection with any dispute related to this Commitment Letter or the Fee Letter or any matters contemplated hereby or thereby and agree that any service of process, summons, notice or document by registered mail addressed to you shall be effective service of process for any suit, action or proceeding relating to any such dispute.  You irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum.  A final judgment in any such suit, action or proceeding may be enforced in any jurisdiction by suit on the judgment or in any other manner provided by law. Nothing herein will affect the right of the Lead Arrangers or Administrative Agent or the Commitment Parties to serve legal process in any other manner permitted by law or affect the Lead Arrangers’ or Administrative Agent’s or Commitment Parties’ right to bring any suit, action or proceeding against Holdings, the Borrower or their respective subsidiaries or its or their property in the courts of other jurisdictions.

 

9. Other Activities; No Fiduciary Relationship; Other Terms.  As you know, each of Morgan Stanley, WFS, RBS, and RBSSI is a full service securities firm engaged, either directly or indirectly through its affiliates in various activities, including securities 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, Morgan Stanley, WFS, RBS, and RBSSI or their respective affiliates may actively trade the debt and equity securities (or related derivative securities) of the Borrower or 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.  Morgan Stanley, WFS, RBS, and RBSSI or 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 or other debt obligations of the Borrower or other companies which may be the subject of the arrangements contemplated by this Commitment Letter.

 

The Lead Arrangers, the Administrative Agent and the Commitment Parties and their respective affiliates may have economic interests that conflict with those of Holdings, Target or the Borrower and may provide financing or other services to parties whose interests conflict with yours.  You agree that the Lead Arrangers, the Administrative Agent and the Commitment Parties will act under this agreement as an independent contractor and that nothing in this Commitment Letter or the Fee Letter or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Lead Arrangers, the Administrative Agent and the Commitment Parties on the one hand and Holdings, Target or the Borrower, or their respective management, stockholders or 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 Lead Arrangers, the Administrative Agent and the Commitment Parties, on the one hand, and you and Holdings, on the other, (ii) in connection therewith and with the process leading to such transaction each Commitment Party is acting solely as a principal and not as a fiduciary of you or Holdings, your or its management, stockholders, creditors or any other person, (iii) the Lead Arrangers, the Administrative Agent and the Commitment Parties have not assumed an advisory or fiduciary responsibility in favor of you or Holdings with respect to the Transactions or the process leading thereto (irrespective of whether the Lead Arrangers, the Administrative Agent or the Commitment Parties or any of their respective affiliates had advised or is currently advising you or Holdings on other matters) or any other obligation to you or Holdings except the obligations expressly set forth in this Commitment Letter and the Fee Letter and (iv) you and Holdings have consulted your and its own legal and financial advisors to the extent you or it deemed appropriate.

 

You further acknowledge and agree that you, Holdings and your and its respective subsidiaries are responsible for making your and their own independent judgment with respect to the Transactions and the process leading thereto.  In addition, please note that the Lead Arrangers, the Administrative Agent and the Commitment Parties and their respective affiliates do not provide accounting, tax or legal advice.  You, Holdings and your and its respective subsidiaries agree that you or they will not claim that the Lead Arrangers, the Administrative Agent or the Commitment Parties or any of their respective affiliates has rendered advisory services or any nature or respect, or owes a fiduciary or similar duty to you, Holdings or your or its respective subsidiaries, in connection with the Transactions or the process leading thereto.

 

We reserve the right to employ the services of one or more of our affiliates in providing services contemplated by this Commitment Letter and to allocate, in whole or in part, to such affiliates certain fees payable to us in such manner as we and such affiliates may agree in our sole discretion.  You also agree that the Commitment Parties may at any time and from time to time assign all or any portion of their respective commitments hereunder to one or more of their respective affiliates.  You acknowledge that each Commitment Party may share with any of its affiliates, and such affiliates may share with such Commitment Party, any information related to the Transactions, you, the Target, any of your or their subsidiaries or any of the matters contemplated hereby in connection with the Transactions.  We agree to treat, and cause any of our affiliates to treat, all non-public information provided to us by you as confidential information in accordance with customary banking industry practices.

 

10. Acceptance, Termination, Amendment, etc.  Please indicate your acceptance of the terms of this Commitment Letter and the Fee Letter by returning to us executed counterparts hereof and thereof by no later than 5:00 p.m., New York time, on July 3, 2014.  Thereafter, the commitments and other obligations of the Commitment Parties set forth in this Commitment Letter shall automatically terminate unless each of the Commitment Parties shall in their discretion and unanimously agree to an extension, upon the earliest to occur of (i) the execution and delivery of Financing Documentation by all of the parties thereto and the consummation of the Acquisition; (ii) January 31, 2015, if the Financing Documentation shall not have been executed and delivered by all such parties thereto; and (iii) the date of termination or abandonment of the Acquisition Agreement.  In addition, the Commitment Parties’ commitment hereunder to provide the Bridge Facility will terminate upon the issuance of the Notes in an amount sufficient to yield gross proceeds to the Borrower of at least $140 million.

 

This Commitment Letter and the Fee Letter constitute the entire agreement and understanding between you and your subsidiaries and affiliates and the Commitment Parties with respect to the Bridge Facility and supersede all prior written or oral agreements and understandings relating to the specific matters hereof.  No individual has been authorized by the Commitment Parties or any of their respective affiliates to make any oral or written statements that are inconsistent with this Commitment Letter or the Fee Letter.

 

Headings are for convenience of reference only and shall not affect the construction of, or be taken into consideration when interpreting, this Commitment Letter.  Delivery of an executed counterpart of a signature page to this Commitment Letter and the Fee Letter by facsimile or electronic .pdf shall be effective as delivery of a manually executed counterpart of this Commitment Letter and the Fee Letter.  This Commitment Letter and the Fee Letter may be executed in any number of counterparts, and by the different parties hereto on separate counterparts, each of which counterpart shall be an original, but all of which shall together constitute one and the same instrument.  The provisions of Sections 1 (clause (i) of the third paragraph thereof only), 2, 3, 4, 5, 6, 8, 9 and this Section 10 shall survive termination of this Commitment Letter; provided that Sections 2 and 3 shall survive only if the Closing Date occurs.  This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the parties hereto.  This Commitment Letter shall not be assignable by you without our prior written consent and any purported assignment without such consent shall be null and void.  This Commitment Letter is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and any Indemnified Persons).

 

[Remainder of page intentionally left blank]

 

We are pleased to have given the opportunity to assist you in connection with the financing for the Transactions.

 

Very truly yours,

 

 

By:       /s/ Reagan Philipp

Name: Reagan Philipp

Title: Authorized Signatory

 

By:       /s/ Mark Birenbaum                                                      

Name: Mark Birenbaum

Title: Managing Director

By:      /s/ Mark Birenbaum                                                      

Name: Mark Birenbaum

Title: Managing Director

 

 

By:       /s/ Michael F. Newcomb II 

Name: Michael F. Newcomb II

Title: Managing Director

 

 

By:      /s/ Alex Dan                                                      

Name: Alex Dan

Title: Director

 

 

Agreed to and accepted as of

 

the date first written above:

 

By:       /s/ Steven L. Childers                                                                                       

Name: Steven L. Childers

Title: Senior Vice President and Chief Financial Officer

 

 

All capitalized terms used herein but not defined shall have the meanings provided in the Commitment Letter to which this Exhibit A is attached.

 

Borrower:

Consolidated Communications, Inc. (the “Borrower”), a wholly owned subsidiary of Consolidated Communications Holdings, Inc. (“Holdings”).  The Borrower, or a merger subsidiary of the Borrower, will merge with the Target on the Closing Date.

 

Joint Lead Arrangers and

Book Runners:

Morgan Stanley Senior Funding, Inc. (“MSSF”), Wells Fargo Securities, LLC (“WFS”) and RBS Securities Inc. (“RBSSI” and together with MSSF and WFS, in such capacities, the “Lead Arrangers”).

Administrative Agent:

MSSF (in such capacity, the “Administrative Agent”).

Bridge Lenders:

MSSF, WF Investment Holdings, LLC and The Royal Bank of Scotland plc and a syndicate of financial institutions and institutional lenders arranged by the Lead Arrangers in consultation with the Borrower.

 

Ranking:

The Bridge Loans will rank senior to all subordinated unsecured indebtedness of the Borrower and will rank pari passu to all other unsecured senior debt of the Borrower.

 

Guarantors:

The Bridge Facility will be guaranteed on a senior unsecured basis by Holdings and each of the Borrower’s subsidiaries (the “Guarantors”) that guarantee the Borrower’s 10.875% senior notes due 2020 (the “Existing Notes”) issued pursuant to that certain Indenture, among the Borrower (as successor in interest by way of merger to Consolidated Communications Finance Co.), Holdings, the other guarantors party thereto from time to time and Wells Fargo Bank, National Association, as trustee, dated as of May 30, 2012, as supplemented by the First Supplemental Indenture, dated as of July 1, 2012, by the Second Supplemental Indenture, dated as of August 3, 2012 and as further supplemented by the Third Supplemental Indenture, dated as of April 1, 2014 (as supplemented, the “Existing Indenture”). The guarantees will rank senior to all subordinated unsecured indebtedness of a Guarantor and will rank pari passu to all other senior unsecured indebtedness of such Guarantor (including the Existing Notes).

 

Bridge Facility:

A senior unsecured bridge facility issued at the Demand Floor Price (as defined in the Fee Letter) and in a principal amount that will yield up to $140 million in gross proceeds to the Borrower (the “Bridge Facility”).  The Bridge Loans will be evidenced by promissory notes.

 

Purpose and Availability:

The full amount of the Bridge Facility will be available in a single borrowing on the Closing Date and shall be utilized (a) to finance, in part, the Acquisition and the other Transactions and (b) to pay fees and expenses in connection with the Transactions.  The loans made under the Bridge Facility on the Closing Date are herein referred to as the “Bridge Loans.” Once repaid, no amount of Bridge Loans may be reborrowed.

 

Security:

None.

 

Bridge Maturity Date:

The initial maturity of the Bridge Facility shall be the first anniversary of the Closing Date (the “Rollover Date”). If any Bridge Loan has not been repaid in full on or prior to the Rollover Date then, subject to payment of the Rollover Fee (as defined in the Fee Letter), and unless (i) Holdings, the Borrower or any significant subsidiary thereof is subject to a bankruptcy or other insolvency proceeding or (ii) there exists a default in payment with respect to the Bridge Loans (which bankruptcy, insolvency or payment default would instead result in automatic acceleration), the maturity of the Bridge Facility shall be automatically extended to June 1, 2020 (the “Bridge Maturity Date”).

Exchange to Exchange Notes:

At any time on or after the Rollover Date, each Bridge Lender may exchange the Bridge Loans it holds for notes (the “Exchange Notes”) maturing on the Bridge Maturity Date and having the terms set forth in the term sheet attached hereto as Annex I; provided that no Bridge Lender shall hold any Exchange Notes unless it is (or will immediately transfer its Exchange Notes to) an Eligible Holder (as defined in Annex I).

In connection with each such exchange, or at any time prior thereto if requested by any Bridge Lender that is a Bridge Lender as of the Closing Date (each, an “Initial Bridge Lender”), the Borrower shall (i) deliver to the Bridge Lender that is receiving Exchange Notes, and to such other Bridge Lenders as such Initial Bridge Lender requests, an offering memorandum of the type customarily utilized in a Rule 144A offering of high yield securities covering the resale of such Exchange Notes by such Bridge Lenders, in such form and substance as reasonably acceptable to the Borrower and such Bridge Lender, and keep such offering memorandum updated in a manner as would be required pursuant to a customary Rule 144A securities purchase agreement, (ii) execute an exchange agreement containing provisions customary in Rule 144A securities purchase agreements (including indemnification provisions) and a registration rights agreement customary in Rule 144A offerings (provided that such registration rights agreement shall be subject to the Bridge Registration Trigger, as defined in Annex I attached hereto), in each case, if requested by such Initial Bridge Lender, (iii) deliver or cause to be delivered such opinions and accountants’ comfort letters addressed to the Initial Bridge Lender and such certificates as the Initial Bridge Lender may request as would be customary in Rule 144A offerings and otherwise in form and substance satisfactory to the Initial Bridge Lender and (iv) take such other actions, and cause its advisors, auditors and counsel to take such actions, as reasonably requested by the Initial Bridge Lender in connection with issuances or resales of Exchange Notes, including providing such information regarding the business and operations of the Borrower and its subsidiaries as is reasonably requested by any prospective holder of Exchange Notes and customarily provided in due diligence investigations in connection with purchases or resales of securities.

Interest Rate:

The Bridge Loans will bear interest at a rate equal to 10.875% and will be payable semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a business day, on the next succeeding business day.

 

Calculation of interest shall be on the basis of the actual number of days elapsed in a year of twelve 30-day months.

 

Default Interest:

Upon the occurrence and during the continuance of an event of default or a payment default, interest will accrue on the amount of any loan or other amount outstanding under the Bridge Facility at a rate of 2.0% per annum plus the rate otherwise applicable to the loans under the Bridge Facility and will be payable on demand.

 

Mandatory Offer to Purchase:

Upon the occurrence of a change of control of the Borrower (to be defined in a manner consistent with the Existing Indenture), the Borrower will be required, to offer to purchase Bridge Loans on a pro rata basis, at a price of 101% of the principal amount thereof, plus accrued and unpaid interest, to the date of prepayment. The Borrower will also be required to offer to purchase the Bridge Loans with the proceeds of certain asset sales at 100% of the principal amount thereof plus accrued interest to be date of purchase on terms consistent with the Existing Indenture.

 

Optional Prepayments:

Prior to June 1, 2016, prepayment of Bridge Loans will be subject to a customary “make-whole” premium calculated using a discount rate equal to the yield on comparable Treasury securities plus 50 basis points as provided in Section 3.07(a) of the Existing Indenture.  On or after June 1, 2016, the Bridge Loans will be prepayable at the same premium that would be payable upon redemption of the Exchange Notes.

 

In addition, Bridge Loans will be prepayable at the option of the Borrower prior to June 1, 2015 with the net cash proceeds of qualified equity offerings of the Borrower or Holdings (provided that such net cash proceeds are contributed to the common equity capital of the Borrower) at a redemption price of 110.875%  of the principal amount thereof; provided that after giving effect to such prepayment at least 65% of the aggregate principal amount of Bridge Loans originally made shall remain outstanding.

 

Conditions Precedent to

Funding:

Conditions precedent to borrowing under the Bridge Facility shall be limited to those expressly set forth in Section 1 of the Commitment Letter and on Exhibit B to the Commitment Letter.

 

Representations and Warranties:

Representations and warranties applicable to the Borrower and its subsidiaries customary and substantially similar to those set forth in the Second Amended and Restated Credit Agreement dated as of December 23, 2013 (as may be amended, restated, supplemented, or otherwise modified from time to time, the “Existing Credit Agreement”), among Holdings, the Borrower, the lenders party thereto, Wells Fargo Bank, National Association, as Administrative Agent and the other agents party thereto, consisting of the following: organization, etc.; due authorization, non-contravention, etc.; government approval, regulation, etc.; validity, etc.; financial information; no material adverse effect; litigation; compliance with laws and agreements (including, without limitation, the Foreign Corrupt Practices Act); subsidiaries; taxes; pension and welfare plans; environmental warranties; regulations U and X; sanctions; disclosure; accuracy of information; pro forma balance sheets and projected financial statements; insurance; labor matters; solvency; equity interests of Holdings and its subsidiaries, and anti-terrorism laws.

Covenants:

Covenants that are substantially similar to those contained in the Existing Indenture. In addition, the Borrower will be required to comply with the Commitment Letter and the Fee Letter.

Financial Covenants:

None.

 

Events of Default:

Events of default substantially similar to those in the Existing Indenture, but also consisting of the following: breach of representations or warranties and failure to comply with any Securities Demand requirements as set forth in the Fee Letter.

 

Expenses and Indemnity:

The Borrower shall pay or reimburse all reasonable costs and expenses incurred in connection with the syndication of the Bridge Facility and with the preparation, negotiation, execution and delivery of the Bridge Documentation and any security arrangements in connection therewith, including without limitation, the reasonable fees and disbursements of counsel, as more fully stated in and in accordance with the Commitment Letter.  The Borrower shall also pay all costs and expenses of the Administrative Agent, the Bridge Lenders and their respective affiliates (including, without limitation, reasonable fees and disbursements of counsel) incurred in connection with the administration, amendment, waiver or modification (including proposed amendments, waivers or modifications) of, and enforcement of any of its rights and remedies under, the Bridge Documentation.

 

The Borrower will indemnify the Bridge Lenders, the Lead Arrangers, the Administrative Agent and their respective affiliates (including, without limitation, controlling persons) and each director, officer, employee, advisor, agent, affiliate, successor, partner, representative and assign of each of the foregoing (each an “Indemnified Person”) and hold them harmless from and against any and all actions, suits, investigation, inquiry, claims, losses, damages, liabilities, expenses or proceedings of any kind or nature whatsoever which may be incurred by or asserted against or involve any such Indemnified Person as a result of or arising out of or in any way related to or resulting from the Bridge Facility, the use of proceeds thereof, the Transactions or the other transactions contemplated thereby (regardless of whether any such Indemnified Person is a party thereto and regardless of whether such matter is initiated by a third party or otherwise) (any of the foregoing, a “Proceeding”); provided, however, that no Indemnified Person will be indemnified for costs, expenses or liabilities to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have been incurred solely from the gross negligence or willful misconduct of such Indemnified Person. The Borrower’s indemnity and reimbursement obligations shall be effective, whether or not such Proceeding is brought by the Borrower, Holdings, any of your or their respective securityholders or creditors, an Indemnified Person or any other person, or an Indemnified Person is otherwise a party thereto.

 

Waivers and Amendments:

Amendments and waivers of the provisions of the Bridge Documentation shall require the approval of Bridge Lenders holding not less than a majority of the aggregate principal amount of the loans and commitments under the Bridge Facility; provided that (a) the consent of each affected Bridge Lender shall be required with respect to (i) increases in the commitment of such Bridge Lender; (ii) reductions of principal, interest or fees; (iii) extensions of scheduled amortization or the final maturity date and (iv) releases of all or a substantial portion of the value of the guarantees; and (b) the consent of all of the Bridge Lenders shall be required with respect to (i) modification of the voting percentages (or any of the applicable definitions related thereto) and (ii) modifications to the pro rata provisions.

 

Assignments and Participations:

Each Bridge Lender may assign all or a portion of its loans and commitments under the Bridge Facility.  Assignments will require payment of an administrative fee to the Administrative Agent and, except for an assignment to an existing Bridge Lender or an affiliate of an existing Bridge Lender, the consent of the Administrative Agent (not to be unreasonably withheld or delayed).  In addition, each Bridge Lender may sell participations in all or a portion of its loans and commitments under the Bridge Facility; provided that no purchaser of a participation shall have the right to exercise or to cause the selling Bridge Lender to exercise voting rights in respect of the Bridge Facility (except as to certain basic issues).

 

Yield Protection, Taxes and

Other Deductions:

The Bridge Documentation will contain customary provisions for facilities of this kind, and as otherwise deemed necessary or appropriate by the Administrative Agent, including, without limitation, in respect of breakage and redeployment costs, increased costs, funding losses, capital adequacy, illegality, requirements of law.  All payments shall be free and clear of any present or future taxes, withholdings or other deductions whatsoever (other than income taxes in the jurisdiction of a Bridge Lender’s applicable lending office) (it being understood that the Dodd Frank Wall Street Reform and Consumer Protection Act and Basel III and all regulations, interpretations and directives thereunder shall be deemed to be a change in law).

 

Governing Law:

The State of New York.  Each party to the Bridge Documentation will waive the right to trial by jury and will consent to the exclusive jurisdiction of the state and federal courts located in The Borough of Manhattan, The City of New York.

 

Counsel to the

Commitment Parties, Lead Arrangers

and Administrative Agent:

Shearman & Sterling LLP.

 

 

 

Issuer:

The Borrower will issue Exchange Notes under the Existing Indenture and the Exchange Notes shall have substantially the same terms as the Existing Notes. The Borrower in its capacity as issuer of the Exchange Notes is referred to as the “Issuer.”

 

Guarantors:

Same as Bridge Loans.

 

Principal Amount:

The Exchange Notes will be available only in exchange for the Bridge Loans on or after the Rollover Date.  The principal amount of any Exchange Note will equal 100% of the aggregate principal amount of the Bridge Loans for which it is exchanged.

 

Maturity:

The Exchange Notes will mature on the Bridge Final Maturity Date.

 

Interest Rate:

The Exchange Notes will bear interest at a rate equal to 10.875% and will be payable semi-annually in arrears on June 1 and December 1 of each year, or if any such day is not a business day, on the next succeeding business day.

 

Calculation of interest shall be on the basis of the actual number of days elapsed in a year of twelve 30-day months.

 

Ranking:

Same as Existing Notes.

 

Mandatory Offer to Purchase:

The Issuer will be required to offer to purchase the Exchange Notes upon a change of control (as defined in the Existing Indenture) at 101% of the principal amount thereof plus accrued interest to the date of purchase.  The Issuer will also be required to offer to purchase Exchange Notes with the proceeds of certain asset sales at 100% of the principal amount thereof plus accrued interest to be date of purchase.

 

Optional Redemption:

Prior to June 1, 2016, redemption of the Exchange Notes by the Issuer will be subject to a customary “make-whole” premium calculated using a discount rate equal to the yield on comparable Treasury securities plus 50 basis points as provided in Section 3.07(a) of the Existing Indenture.  On or after June 1, 2016, the Exchange Notes will be redeemable at the option of the Issuer at a premium as set forth in Section 3.07(b) of the Existing Indenture.

 

In addition, Exchange Notes will be redeemable at the option of the Issuer prior to June 1, 2015 with the net cash proceeds of qualified equity offerings of the Issuer or Holdings (provided that such net cash proceeds are contributed to the common equity capital of the Issuer) at a premium equal to 110.875%; provided that after giving effect to such redemption at least 65% of the aggregate principal amount of Existing Notes and the Senior Exchange Notes shall remain outstanding.

 

Registration Rights:

If on the date that is 366 days after the Rollover Date (i) any Exchange Notes are not freely transferable by the holders thereof that are not affiliates of the Issuer in accordance with Rule 144 (or any similar provision then in force) under the Securities Act of 1933, as amended (the “Securities Act”) or otherwise where no conditions of Rule 144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), (ii) the restrictive legend has not been removed from the Exchange Notes, or (iii) the Exchange Notes do not bear the same CUSIP number as the Existing Notes (the “Bridge Registration Trigger”), then the Issuer will be required to:

 

(a)	file a registration statement for an offer to exchange the Exchange Notes for publicly registered notes with identical terms;

(b)	cause the registration statement to become effective under the Securities Act;

(c)	complete the exchange offer; and

(d)	file a shelf registration statement for the resale of the Exchange Notes if it cannot complete an exchange offer and in certain other circumstances.

Additionally, if the Bridge Registration Trigger has occurred and the Issuer has not complied with the obligations set forth in clauses (a) through (d) above by the date that is 475 days after the Rollover Date, then the Issuer shall pay liquidated damages to each holder of Exchange Notes with respect to the first 90-day period immediately following such 475-day period in an amount equal to 0.25% per annum on the principal amount of Exchange Notes held by such holder.  The amount of the liquidated damages will increase by an additional 0.25% per annum on the principal amount of Exchange Notes with respect to each subsequent 90-day period until the Issuer complies with the obligations set forth in clauses (a) through (d) above and the Exchange Notes bear the same CUSIP number as the Existing Notes (“Bridge Registration Cure”), up to a maximum amount of liquidated damages of 1.50% per annum. Upon the occurrence of the Bridge Registration Cure, the Issuer shall no longer pay liquidated damages to the holders of the Exchange Notes pursuant to this covenant.

 

In addition, if the Bridge Registration Trigger has occurred, unless and until the Issuer has consummated the exchange offer and, if required, caused the shelf registration statement to become effective, the holders of the Exchange Notes will have the right to “piggy-back” the Exchange Notes in the registration of any debt securities (subject to customary scale-back provisions) that are registered by the Issuer (other than on a Form S-4) unless all the Exchange Notes and Bridge Loans will be redeemed or repaid from the proceeds of such securities.

 

Right to Transfer Exchange Notes:

Each holder of Exchange Notes shall have the right to transfer its Exchange Notes in whole or in part, at any time to an Eligible Holder (as defined below) and, after the Exchange Notes are registered pursuant to the provisions described under “Registration Rights,” to any person or entity; provided that if the Issuer or any of its affiliates holds Exchange Notes, such Exchange Notes shall be disregarded in any voting.  “Eligible Holder” will mean (a) an institutional “accredited investor” within the meaning of Rule 501 under the Securities Act, (b) a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, (c) a person acquiring the Exchange Notes pursuant to an offer and sale occurring outside of the United States within the meaning of Regulation S under the Securities Act or (d) a person acquiring the Exchange Notes in a transaction that is, in the opinion of counsel acceptable to the Issuer, exempt from the registration requirements of the Securities Act; provided that in each case such Eligible Holder represents that it is acquiring the Exchange Notes for its own account and that it is not acquiring such Exchange Notes with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States or any state thereof.

 

Covenants:

Those covenants set forth in the Existing Indenture.

 

Events of Default:

Those events of default set forth in the Existing Indenture.

 

Governing Law:

The State of New York.

 

 

 

Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Exhibit B is attached.  The commitments of the Bridge Lenders in respect of the Bridge Facility and the closing and the initial extension of credit thereunder on the Closing Date will be subject to satisfaction of the conditions precedent set forth in Section 1 of the Commitment Letter, on Exhibit A to the Commitment Letter under the heading “Conditions Precedent to Funding”, and the following conditions precedent:

 

(a) Consummation of the Acquisition.  The Lead Arrangers shall have reviewed, and each Lead Arranger shall be reasonably satisfied with, the final structure, terms and conditions and documentation relating to the Acquisition, including the Acquisition Agreement (collectively, the “Acquisition Documents”) (it being understood that the Lead Arrangers are satisfied with the draft Agreement and Plan of Merger, dated June 29, 2014 (the “Draft Acquisition Agreement”) received by the Lead Arrangers’ counsel at 11:20 a.m. (New York time) on June 29, 2014.  The Acquisition and the other Transactions (including the Equity Issuance) shall be consummated concurrently with the initial funding of the Bridge Facility on the Closing Date in compliance with applicable law and in accordance with the Acquisition Documents, without waiver or amendment thereof or any consent thereunder (including any change in the purchase price) unless such waiver, amendment or consent (i) has received the prior written consent of the Lead Arrangers, or (ii) is not materially adverse to any interests of the Lenders or the Lead Arrangers (it being understood and agreed that (1) any change in the consideration paid for the Acquisition shall be deemed to be materially adverse to the interests of the Lenders and the Lead Arrangers, and (2) any change to the definition of “Company Material Adverse Effect”, “Parent Material Adverse Effect” or any similar definition shall be deemed to be materially adverse to the interests of the Lenders and the Arranger).  Immediately following the consummation of the Transactions, no default shall exist under any indebtedness of the Borrower or any of its subsidiaries.

 

(b) Refinancing. The Refinancing shall have occurred or shall occur substantially concurrently with the Closing Date and the Administrative Agent shall have received satisfactory evidence thereof and the discharge (or the making of arrangements for discharge) of all liens other than liens permitted to remain outstanding under the Financing Documentation.

 

(c) Consents.  All necessary governmental and third party consents and approvals necessary in connection with the Transactions shall have been obtained and be effective and all applicable waiting periods shall have expired without any adverse action being taken by any competent authority.

 

(d) Fees and Expenses.  The Borrower shall have complied with all of its obligations under, and the terms of, the Fee Letter.  All accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors) and other compensation payable to the Administrative Agent, the Commitment Parties, the Lead Arrangers and the Lenders shall have been paid and received by the Administrative Agent, the Commitment Parties, the Lead Arrangers, and the Lenders.

 

(e) Financial Statements; Pro Formas.  The Lead Arrangers shall have received, review and be satisfied with (i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each of the three fiscal years ended December 31, 2013 (the “Audited Financial Statements”), (ii) unaudited consolidated balance sheets and related statements of income and cash flows of each of the Borrower and the Target for each fiscal quarter of 2014 ended at least 45 days before the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date), for the period elapsed from the beginning of the 2014 fiscal year to the end of such fiscal quarter and for the comparable periods of the preceding fiscal year (the “Unaudited Financial Statements”) (with respect to which the independent auditors shall have performed an SAS 100 review), (iii) a pro forma consolidated and consolidating balance sheet and related statements of income and cash flows for the Borrower (the “Pro Forma Financial Statements”) as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days before the Closing Date (or, if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of income and cash flows), promptly after the historical financial statements for such period are available, and (iv) forecasts of the financial performance of the Borrower and its subsidiaries (including the Target and its subsidiaries) (x) on an annual basis, through 2020 and (y) on a quarterly basis, through 2016.  The financial statements referred to in clauses (i) and (ii) shall be prepared in accordance with accounting principles generally accepted in the United States and shall not be materially inconsistent in form and preparation with the financial statements or forecasts previously provided to the Lead Arrangers.  The Pro Forma Financial Statements shall be prepared on a basis consistent with pro forma financial statements set forth in a registration statement filed with the Securities and Exchange Commission.

 

(f) Patriot Act.  The Borrower and each of the Guarantors shall have provided at least three days prior to the Closing Date the documentation and other information to the Lenders that are required by regulatory authorities under the applicable “know-your-customer” rules and regulations, including the Patriot Act and each of the Lead Arrangers and Lenders shall be satisfied with all applicable “know your customer,” anti-money laundering, and similar due diligence and approvals concerning the Borrower and each of the Guarantors.

 

(g) Miscellaneous Closing Conditions.  The Lead Arrangers and the Lenders shall have received a notice of borrowing, satisfactory opinions of counsel for the Borrower and the Guarantors, and of any applicable local counsel, as the case may be, and such corporate resolutions, certificates, organizational documents and other customary closing documentation (including, but not limited to, a solvency certificate from the Chief Financial Officer of the Borrower, in form and substance reasonably satisfactory to the Lead Arrangers), as well as such other documents as the Lead Arrangers and the Lenders may reasonably request, in each case in form and substance reasonably satisfactory to the Lead Arrangers.

 

(h) Representations and Warranties; No Default.  Subject to the limitations set forth in the final paragraph of Section 1 in the Commitment Letter, the representations and warranties of the Borrower, each of the Guarantors and each of their respective subsidiaries at the time of, and after giving effect to, such borrowing shall be accurate in all material respects.  The Acquisition Agreement Representations and the Specified Representations at the time of, and after giving effect to, the borrowing shall be true and correct in all material respects.  There shall be no default or event of default at the time of, and after giving effect to, such borrowing.

 

(i) Offering Memorandum.  The Borrower shall have engaged the investment bank(s) referred to in the Fee Letter (the “Investment Bank”) to place the securities referred to therein.  The Borrower shall have (i) as soon as practicable, and in no event less than 20 calendar days prior to the Closing Date, prepared and delivered to the Lead Arrangers one or more preliminary prospectuses, offering memoranda or private placement memoranda (all as determined by, and in a form reasonably satisfactory to, the Investment Bank but in any event including all financial statements and other information that would be required in a registration statement on Form S-1 for an offering registered under the Securities Act (subject to exceptions customary for a Rule 144A/Regulation S offering involving high yield debt securities, including the exception of a consolidating footnote to the financial statements for guarantors and non-guarantors)) relating to any such issuance of the Notes, and thereafter prepare supplements to or final versions of such prospectuses, offering memoranda or private placement memoranda (promptly upon request by, and in a form reasonably satisfactory to, the Investment Bank) (collectively, the “Offering Document”), (ii) caused the independent registered public accountants of each of the Borrower and the Target to render customary draft “comfort letters” (including customary “negative assurances” and SAS 100 review of interim financial statements) with respect to the financial information in the Offering Document that they would be willing to deliver on the pricing and closing date of any Notes, (iii) caused the senior management and other representatives of the Borrower, and used commercially reasonable efforts to cause the senior management and other representatives of the Target, in each case, to provide access in connection with due diligence investigations and to participate in a customary high-yield “road show,” for a consecutive 20 consecutive calendar day period commencing on the date of delivery of a final Offering Document (at no time during which period the financial information in the Offering Document shall be “stale”) and ending on the third business day prior to the Closing Date (the “Marketing Period”); provided (a) such 20 consecutive calendar day period shall not be required to be consecutive to the extent it would include July 3, 2014 through July 6, 2014 and/or November 27, 2014 through November 28, 2014 (which days shall not be counted for the purposes of meeting such 20 consecutive calendar day requirement), (b) to the extent the Marketing Period has not ended on or prior to August 15, 2014, the Marketing Period shall be deemed not to have commenced until September 2, 2014 and (c) to the extent the Marketing Period has not ended on or prior to December 16, 2014, the Marketing Period shall be deemed not to have commenced until January 2, 2015 and (iv) obtained the Ratings prior to the commencement of such 20 calendar day period.  To the extent any issuance of Securities is not consummated on or prior to the Closing Date, this condition shall continue as a covenant following the Closing Date (with the references to specific dates and periods being disregarded).