UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)*
Tallgrass Energy, LP
(Name of Issuer)
Class A Shares Representing Limited Partner Interests
(Title of Class of Securities)
874696107
(CUSIP Number)
John G. Finley
The Blackstone Group Inc.
345 Park Avenue
New York, NY 10154
Tel: (212) 583-5000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
February 14, 2020
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
1 |
Name of Reporting Person
Prairie ECI Acquiror LP | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
92,778,793 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
92,778,793 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
92,778,793 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
34.06% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Prairie Non-ECI Acquiror LP | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
21,751,018 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
21,751,018 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
21,751,018 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
12.11% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Prairie VCOC Acquiror LP | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
7,876,328 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
7,876,328 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
7,876,328 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
4.20% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Prairie Secondary Acquiror LP | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
773,510 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
773,510 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
773,510 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
0.43% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Prairie Secondary Acquiror E LP | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
1,127,935 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
1,127,935 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
1,127,935 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
0.63% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
BIP Holdings Manager L.L.C. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
OO |
1 |
Name of Reporting Person
Blackstone Infrastructure Associates L.P. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
BIA GP L.P. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
BIA GP L.L.C. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
OO |
1 |
Name of Reporting Person
Blackstone Holdings III L.P. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Quebec, Canada |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
0 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
0 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
0 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
0.0% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Blackstone Holdings III GP L.P. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
0 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
0 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
0 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
0.0% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Blackstone Holdings III GP Management L.L.C. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
0 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
0 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
0 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
0.0% | |||||
14 | Type of Reporting Person
OO |
1 |
Name of Reporting Person
Blackstone Holdings II L.P. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
PN |
1 |
Name of Reporting Person
Blackstone Holdings I/II GP L.L.C. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 | Type of Reporting Person
OO |
1 |
Name of Reporting Person
The Blackstone Group Inc. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 |
Type of Reporting Person
CO |
1 |
Name of Reporting Person
Blackstone Group Management L.L.C. | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
Delaware |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 |
Type of Reporting Person
OO |
1 |
Name of Reporting Person
Stephen A. Schwarzman | |||||
2 | Check the Appropriate Box if a Member of a Group (A): ☐ (B): ☒
| |||||
3 | SEC Use Only
| |||||
4 | Source of Funds
OO | |||||
5 | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(D) or 2(E)
☐ | |||||
6 | Citizenship or Place of Organization
United States of America |
Number of Shares Beneficially Owned by Each Reporting Person with |
7 | Sole Voting Power
0 | ||||
8 | Shared Voting Power
124,307,584 | |||||
9 | Sole Dispositive Power
0 | |||||
10 | Shared Dispositive Power
124,307,584 |
11 |
Aggregate Amount Beneficially Owned by Each Reporting Person
124,307,584 | |||||
12 | Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐ | |||||
13 | Percent of Class Represented by Amount in Row (11)
44.35% | |||||
14 |
Type of Reporting Person
IN |
This Amendment No. 7 to Schedule 13D (this Amendment No. 7) relates to the Class A Shares Representing Limited Partner Interests (the Class A Shares) of Tallgrass Energy, LP, a Delaware limited partnership (the Issuer), and amends and supplements the initial statement on Schedule 13D filed by the Reporting Persons with the Securities and Exchange Commission (the SEC) on March 11, 2019 (the Original 13D), as amended by Amendment No. 1 to Schedule 13D filed by the Reporting Persons with the SEC on March 25, 2019, Amendment No. 2 to Schedule 13D filed by the Reporting Persons with the SEC on May 13, 2019, Amendment No. 3 to Schedule 13D filed by the Reporting Persons with the SEC on August 1, 2019, Amendment No. 4 to Schedule 13D filed by the Reporting Persons with the SEC on August 28, 2019, Amendment No. 5 to Schedule 13D filed by the Reporting Persons with the SEC on September 26, 2019 and Amendment No. 6 to the Schedule 13D filed by the Reporting Persons with the SEC on December 18, 2019 (collectively, the Schedule 13D). This Amendment No. 7 reflects, among other things, that in connection with the conversion by The Blackstone Group L.P., a Delaware limited partnership, into a Delaware corporation named The Blackstone Group Inc., which became effective on July 1, 2019 (the Blackstone Conversion), interests in BIA GP L.P. and BIA GP L.L.C. were transferred from Blackstone Holdings III L.P. to Blackstone Holdings II L.P. pursuant to an internal reorganization effective as of January 31, 2020. The above described reorganization did not involve any purchase or sale of securities of the Issuer. This Amendment No. 7 also represents an initial filing of Schedule 13D by Blackstone Holdings II L.P. and Blackstone Holdings I/II GP L.L.C. in connection with such reorganization. Capitalized terms used but not defined in this Amendment No. 7 shall have the same meanings ascribed to them in the Schedule 13D. Except as specifically provided herein, this Amendment No. 7 does not modify any of the information previously reported in the Schedule 13D.
Item 2. | Identity and Background. |
Item 2 of the Schedule 13D is hereby amended and restated in its entirety as follows:
(a)-(b) The Schedule 13D is being filed by the following Reporting Persons:
(i) | Prairie ECI Acquiror LP, a Delaware limited partnership (Up-C Acquiror 1), Prairie VCOC Acquiror LP, a Delaware limited partnership (Up-C Acquiror 2, and together with Up-C Acquiror 1, the Up-C Acquirors) and Prairie Non-ECI Acquiror LP, a Delaware limited partnership (Class A Acquiror); |
(ii) | Prairie Secondary Acquiror LP, a Delaware limited partnership (Secondary Acquiror 1), and Prairie Secondary Acquiror E LP, a Delaware limited partnership (Secondary Acquiror 2 and, collectively with Secondary Acquiror 1, Prairie Secondary Acquirors); |
(iii) | BIP Holdings Manager L.L.C., a Delaware limited liability company (Holdings Manager); Blackstone Infrastructure Associates L.P., a Delaware limited partnership (Blackstone Infrastructure); BIA GP L.P., a Delaware limited partnership; BIA GP L.L.C., a Delaware limited liability company; Blackstone Holdings II L.P., a limited partnership formed in Quebec, Canada; Blackstone Holdings I/II GP L.L.C., a Delaware limited liability company; The Blackstone Group Inc., a Delaware corporation (Blackstone), and Blackstone Group Management L.L.C., a Delaware limited liability company (collectively with Up-C Acquiror 1, Up-C Acquiror 2, Class A Acquiror, Secondary Acquiror 1 and Secondary Acquiror 2, the Blackstone Entities); and |
(iv) | Stephen A. Schwarzman, a citizen of the United States of America. |
The principal business address of each of the Reporting Persons is c/o The Blackstone Group, Inc., 345 Park Avenue, New York, New York 10154.
Information regarding each director and executive officer of The Blackstone Group Inc. is set forth on Schedule I attached hereto.
(c) The principal business of each of Up-C Acquiror 1, Up-C Acquiror 2, Class A Acquiror, Secondary Acquiror 1 and Secondary Acquiror 2 is investing in securities of the Issuer.
The principal business of Holdings Manager is performing the functions of, and serving as, the general partner of each of the Up-C Acquirors, Class A Acquiror, the Prairie Secondary Acquirors and other affiliated Blackstone entities. The principal business of Blackstone Infrastructure is performing the functions of, and serving as, the managing member of Holdings Manager and other affiliated Blackstone entities. The principal business of BIA GP L.P. is performing the functions of, and serving as, the general partner of Blackstone Infrastructure and other affiliated Blackstone entities. The principal business of BIA GP L.L.C. is performing the functions of, and serving as, the general partner of BIA GP L.P. and other affiliated Blackstone entities.
The principal business of Blackstone Holdings II L.P. is performing the functions of, and serving as, the managing member (or similar position) and member or equity holder in various affiliated Blackstone entities. The principal business of Blackstone Holdings I/II GP L.L.C. is performing the functions of, and serving as, a general partner of Blackstone Holdings II L.P. and other affiliated Blackstone entities. The principal business of The Blackstone Group Inc. is performing the functions of, and serving as, the sole member of Blackstone Holdings I/II GP L.L.C., and in a similar capacity for other affiliated Blackstone entities. The principal business of Blackstone Group Management L.L.C. is performing the functions of, and serving as, the sole holder of the Class C common stock of The Blackstone Group Inc.
The principal occupation of Mr. Schwarzman is serving as an executive of The Blackstone Group Inc. and Blackstone Group Management L.L.C.
(d) During the last five years, none of the Reporting Persons or, to the best knowledge of the Reporting Persons, any of the other persons set forth on Schedule I attached hereto, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons or, to the best knowledge of the Reporting Persons, any of the other persons set forth on Schedule I attached hereto, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) See Items 2(a)-(b) above for place of organization or citizenship of each of the Reporting Persons.
Item 3. | Source and Amount of Funds or Other Consideration. |
Item 3 of the Schedule 13D is hereby amended by inserting the following information at the end of Item 3:
On January 24, 2020, the Debt Commitment Letter and the Side Letter were each amended and restated to add MUFG Bank, Ltd. and Blackstone Holdings Finance Co. L.L.C. as Financing Banks party thereto (such amended and restated Debt Commitment Letter, the Amended and Restated Debt Commitment Letter and such amended and restated Side Letter, the Amended and Restated Side Letter). On January 31, 2020, Buyer delivered notice under the Amended and Restated Side Letter of its election to pursue the financing contemplated under the Amended and Restated Debt Commitment Letter, thereby terminating the Alternative Debt Commitment Letter.
On February 4, 2020, the Loan Parties and Holdings Manager entered into an Amendment No. 1 to the Credit Agreement (Amendment No. 1 to Credit Agreement) with Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, and the lenders party thereto to, among other things, permit the transactions contemplated by the Merger Agreement and certain related transactions and to permit the Borrowers to incur increased incremental commitments thereunder for purposes of funding a portion of the Merger Consideration and related fees and expenses.
On February 14, 2020, the Loan Parties and Holdings Manager entered into Incremental Amendment No. 1 to Credit Agreement (Incremental Amendment No. 1 to Credit Agreement) with Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the lenders party thereto to, among other things, establish commitments for incremental loans in an aggregate principal amount of $375,000,000 under the Credit Agreement, which the Borrowers can elect to draw under for purposes of funding a portion of the Merger Consideration and related fees and expenses on the terms and conditions set forth in the Incremental Amendment No. 1.
The foregoing descriptions of the Amendment No 1. to Credit Agreement, Incremental Amendment No. 1 to Credit Agreement, Amended and Restated Debt Commitment Letter and Amended and Restated Side Letter do not purport to be complete and are qualified in their entirety by the full text of such agreements, which are attached as exhibits to this Schedule 13D and are incorporated herein by reference.
Additionally, in connection with the Blackstone Conversion, pursuant to an internal reorganization effective as of January 31, 2020, interests in BIA GP L.P. and BIA GP L.L.C. were transferred from Blackstone Holdings III L.P. to Blackstone Holdings II L.P. Upon completion of the reorganization described herein, Blackstone Holdings II L.P. and Blackstone Holdings I/II GP L.L.C., the general partner of Blackstone Holdings II L.P., may now be deemed to be the beneficial owners of all or a portion of the securities of Tallgrass Energy, LP reported herein.
Item 5. | Interest in Securities of the Issuer. |
Item 5(a) (b) of the Schedule 13D is hereby amended and restated as follows:
Calculations of the percentage of Class A Shares beneficially owned are calculated in accordance with Rule 13d-3 and assumes that there are 280,287,730 Class A Shares outstanding (other than for (i) Class A Acquiror and the Prairie Secondary Acquirors, which assumes 179,632,609 Class A Shares outstanding, (ii) Up-C Acquiror 1, which assumes 272,411,402 Class A Shares outstanding and (iii) Up-C Acquiror 2, which assumes 187,508,937 Class A Shares are outstanding), which takes into account the number of TE Units that may be deemed to be beneficially owned by the Reporting Persons, as applicable, which are exchangeable together with Class B Shares for a corresponding number of Class A Shares, pursuant to the TGE LP Agreement (defined in Item 6 below).
The aggregate number and percentage of Class A Shares beneficially owned by each Reporting Person and, for each Reporting Person, the number of shares as to which there is sole power to vote or to direct the vote, shared power to vote or to direct the vote, sole power to dispose or to direct the disposition, or shared power to dispose or to direct the disposition are set forth on rows 7 through 11 and row 13 of the cover pages of this Schedule 13D and are incorporated herein by reference.
Class A Acquiror directly holds 21,751,018 Class A Shares.
Up-C Acquiror 1 directly holds 92,778,793 Class B Shares and a corresponding number of TE Units, and Up-C Acquiror 2 directly holds 7,876,328 Class B Shares and a corresponding number of TE Units.
Secondary Acquiror 1 directly holds 773,510 Class A Shares, and Secondary Acquiror 2 directly holds 1,127,935 Class A Shares.
Holdings Manager is the general partner of each of the Up-C Acquirors, Class A Acquiror and each of the Prairie Secondary Acquirors. Blackstone Infrastructure is the sole member of Holdings Manager. BIA GP L.P. is the general partner of Blackstone Infrastructure. BIA GP L.L.C. is the general partner of BIA GP L.P. Blackstone Holdings II L.P. is the sole member of BIA GP L.L.C. Blackstone Holdings I/II GP L.L.C. is the general partner of Blackstone Holdings II L.P. The Blackstone Group Inc. is the sole member of Blackstone Holdings I/II GP L.L.C. Blackstone Group Management L.L.C. is the sole holder of the Class C common stock of The Blackstone Group Inc. Blackstone Group Management L.L.C. is wholly-owned by Blackstones senior managing directors and controlled by its founder, Stephen A. Schwarzman.
Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that any of the Reporting Persons (other than the Acquirors to the extent they directly hold the securities reported on this Schedule 13D) is the beneficial owner of the Class A Shares referred to herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), or for any other purpose, and such beneficial ownership is expressly disclaimed. Each Reporting Person expressly disclaims beneficial ownership of such Class A Shares and any assertion or presumption that it or he and the other persons on whose behalf this Schedule 13D is filed constitute a group.
In accordance with the Securities and Exchange Commission Release No. 34-39538 (the Release), this filing does not reflect securities, if any, beneficially owned by the Harvest Fund Advisors LLC business, a subsidiary business of The Blackstone Group Inc., whose ownership of securities is disaggregated from that of the rest of The Blackstone Group Inc. and its other affiliates in accordance with the Release.
By virtue of an Equityholders Agreement, dated March 11, 2019, by and among certain of the Reporting Persons and their equityholders, Jasmine Ventures Pte. Ltd. and certain of its affiliates (GIC), and Enagas Holding USA, S.L.U. and certain of its affiliates (Enagas), may each be deemed to be a member of a group for purposes of Section 13(d) of the Exchange Act. However, neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission that the Reporting Persons, GIC and Enagas are members of any such group. Each of GIC and Enagas (collectively, the Separately Reporting Persons) has separately made a Schedule 13D filing reporting the Class A Shares they may be deemed to beneficially own. Collectively, the Reporting Persons, GIC and Enagas beneficially own an aggregate of 124,307,584 Class A Shares, representing approximately 44.35% of the outstanding Class A Shares. Each Reporting Person disclaims beneficial ownership of the Class A Shares that may be deemed to be beneficially owned by GIC and Enagas.
Item 5(c) of the Schedule 13D is hereby amended by inserting the following information at the end of Item 5(c):
Except as set forth in this Amendment No. 7, none of the Reporting Persons has effected any transactions in Class A Shares during the past 60 days.
Item 5(e) of the Schedule 13D is hereby amended by the following:
Pursuant to the reorganization described above in this Amendment No. 7, as of January 31, 2020, Blackstone Holdings III L.P., Blackstone Holdings III GP L.P. and Blackstone Holdings III GP Management L.L.C. were no longer deemed to beneficially own more than five percent of the outstanding Class A Shares.
Item 7. | Material to Be Filed as Exhibits. |
Item 7 is hereby amended by adding the following:
Exhibit |
Description | |
22 | Amendment No. 1 to Credit Agreement, dated as of February 4, 2020, by and among Prairie ECI Acquiror LP, Prairie VCOC Acquiror LP and Prairie Non-ECI Acquiror LP, as borrowers, Prairie GP Acquiror LLC, as subsidiary guarantor, Prairie ECI Acquiror Holdco LP, Prairie VCOC Acquiror Holdco LP and Prairie Non-ECI Acquiror Holdco LP, as parent guarantors, BIP Holdings Manager L.L.C., as parent pledgor, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, and the lenders from time to time party thereto. | |
23 | Incremental Amendment No. 1 to Credit Agreement, dated as of February 14, 2020, by and among Prairie ECI Acquiror LP, Prairie VCOC Acquiror LP, Prairie Merger Sub LLC and Prairie Non-ECI Acquiror LP, as borrowers, Prairie GP Acquiror LLC, as subsidiary guarantor, Prairie ECI Acquiror Holdco LP, Prairie VCOC Acquiror Holdco LP, Prairie Private Acquiror LP and Prairie Non-ECI Acquiror Holdco LP, as parent guarantors, BIP Holdings Manager L.L.C., as parent pledgor, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, and the lenders from time to time party thereto. | |
24 | Amended and Restated Debt Commitment Letter, dated January 24, 2020, by and among, among others, Prairie Private Acquiror LP, Credit Suisse Loan Funding LLC, Credit Suisse AG, Citigroup Global Markets Inc. Jefferies Finance LLC, MUFG Bank, LTD and Blackstone Holdings Finance Co. L.L.C. | |
25 | Amended and Restated Side Letter, dated January 24, 2020, by and among, among others, Prairie Private Acquiror LP, Credit Suisse Loan Funding LLC, Credit Suisse AG, Citigroup Global Markets Inc., Jefferies Finance LLC, MUFG Bank, LTD and Blackstone Holdings Finance Co. L.L.C. | |
26 | Joint Filing Agreement, dated as of February 19, 2020. |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: February 19, 2020
PRAIRIE ECI ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
PRAIRIE NON-ECI ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
PRAIRIE VCOC ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
PRAIRIE SECONDARY ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
PRAIRIE SECONDARY ACQUIROR E LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director |
BIP HOLDINGS MANAGER L.L.C. | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
BLACKSTONE INFRASTRUCTURE ASSOCIATES L.P. | ||
By: BIA GP L.P., its general partner | ||
By: BIA GP L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
BIA GP L.P. | ||
By: BIA GP L.L.C., its general partner | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
BIA GP L.L.C. | ||
By: | /s/ Sean Klimczak | |
Name: | Sean Klimczak | |
Title: | Senior Managing Director | |
BLACKSTONE HOLDINGS III L.P. | ||
By: Blackstone Holdings III GP L.P., its general partner | ||
By: Blackstone Holdings III GP Management L.L.C., its general partner | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS III GP L.P. | ||
By: Blackstone Holdings III GP Management L.L.C., its general partner | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer |
BLACKSTONE HOLDINGS III GP MANAGEMENT L.L.C. | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS II L.P. | ||
By: Blackstone Holdings I/II GP L.L.C., its general partner | ||
By: The Blackstone Group Inc., its sole member | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS I/II GP L.L.C. | ||
By: The Blackstone Group Inc., its sole member | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
THE BLACKSTONE GROUP INC. | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
BLACKSTONE GROUP MANAGEMENT L.L.C. | ||
By: | /s/ John G. Finley | |
Name: | John G. Finley | |
Title: | Chief Legal Officer | |
STEPHEN A. SCHWARZMAN | ||
By: | /s/ Stephen A. Schwarzman | |
By: | Stephen A. Schwarzman |
SCHEDULE I
Executive Officers and Directors of The Blackstone Group Inc.
The name and principal occupation of each director and executive officer of The Blackstone Group Inc. are set forth below. The address for each person listed below is c/o The Blackstone Group Inc., 345 Park Avenue, New York, New York 10154. All executive officers and directors listed are United States citizens other than The Honorable Brian Mulroney, who is a citizen of Canada, and Sir John Antony Hood, who is a citizen of New Zealand.
OFFICERS:
Name |
Present Principal Occupation or Employment | |
Stephen A. Schwarzman | Founder, Chairman and Chief Executive Officer of The Blackstone Group Inc. | |
Jonathan D. Gray | President, Chief Operating Officer of The Blackstone Group Inc. | |
Hamilton E. James | Executive Vice Chairman of The Blackstone Group Inc. | |
Michael S. Chae | Chief Financial officer of The Blackstone Group Inc. | |
John G. Finley | Chief Legal Officer of The Blackstone Group Inc. | |
Joan Solotar | Senior Managing Director Head of Private Wealth Solutions and External Relations of The Blackstone Group Inc. |
DIRECTORS:
Name |
Present Principal Occupation or Employment | |
Stephen A. Schwarzman | Founder, Chairman and Chief Executive Officer of The Blackstone Group Inc. | |
Jonathan D. Gray | President, Chief Operating Officer of The Blackstone Group Inc. | |
Hamilton E. James | Executive Vice Chairman of The Blackstone Group Inc. | |
Kelly A. Ayotte | Former United States Senator from New Hampshire | |
James W. Breyer | Founder and Chief Executive Officer of Breyer Capital | |
Sir John Antony Hood | President and Chief Executive Officer of the Robertson Foundation and Chair of the Rhodes Trust | |
Rochelle B. Lazarus | Chairman Emeritus & Former Chief Executive Officer, Ogilvy & Mather Worldwide | |
Jay O. Light | Dean Emeritus, Harvard Business School | |
The Right Honorable Brian Mulroney | Senior Partner and International Business Consultant for the Montreal law firm, Norton Rose Canada LLP | |
William G. Parrett | Retired CEO and Senior Partner, Deloitte (Deloitte Touche Tohmatsu) |
Exhibit 22
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment), dated as of February 4, 2020, among PRAIRIE ECI ACQUIROR LP, a Delaware limited partnership (the Borrower Representative), PRAIRIE VCOC ACQUIROR LP, a Delaware limited partnership (VCOC Borrower), PRAIRIE NON-ECI ACQUIROR LP, a Delaware limited partnership (Non-ECI Borrower and together with the Borrower Representative and VCOC Borrower, collectively, the Borrowers), the Parent Guarantors and Subsidiary Guarantors party hereto (collectively, the Guarantors), BIP HOLDINGS MANAGER L.L.C., a Delaware limited liability company as the Parent Pledgor, the Lenders party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the Administrative Agent) and Collateral Agent.
A. The Borrowers, the Guarantors, the Parent Pledgor, the Administrative Agent and the Collateral Agent and the Lenders and the other parties from time to time party thereto are parties to the Credit Agreement dated as of March 11, 2019 (as amended, amended and restated, supplemented and otherwise modified prior to the Initial Effective Date, the Existing Credit Agreement, and the Existing Credit Agreement, as amended by the amendments set forth in Section 2, the Initial Effective Date Credit Agreement). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Existing Credit Agreement.
B. Prairie Private Acquiror LP, a Delaware limited partnership and an Affiliate of the Borrowers (Buyer) intends that, in accordance with the terms of that certain Agreement and Plan of Merger, dated as of December 16, 2019 (including all schedules and exhibits thereto and as may be amended, supplemented or otherwise modified and in effect from time to time, the Phase II Acquisition Agreement) by and among Buyer, Prairie Merger Sub, LLC, a Delaware limited liability company (Merger Sub), TGE and TGE GP, Buyer and/or Merger Sub will acquire the remaining Equity Interests in TGE owned by its public shareholders (the Phase II Acquisition).
C. In connection with the Phase II Acquisition and the other related transactions contemplated by the Phase II Acquisition Agreement, on the Take Private Effective Date (as defined below), (a) the Borrowers and the other Loan Parties may enter into one or more Restructuring Transactions (as defined in the form of Amended Credit Agreement attached hereto as Annex A, as may be further amended in accordance with Section 3(a)), (b) one or more Borrowers may incur Incremental Term Loans in accordance with the terms and conditions of the Amended Credit Agreement and/or TEP or one or more of its Subsidiaries may incur Indebtedness for borrowed money to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses (as defined below), (c) the DSR Account Termination (as defined below) shall occur and the proceeds of the Debt Service Reserve Account may be used to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses and (d) the Loan Parties, the Investors and certain other investors designated by the Investors (together with the Investors, the Co-Investors) and/or their respective Affiliates will pay, or cause to be paid, any fees or expenses incurred by the Loan Parties, the Co-Investors or any of their respective Subsidiaries in connection with the Phase II Transactions (as defined below) (including expenses in connection with hedging transactions related to the Obligations, any original issue discount or upfront fees, employee retention payments and deferred compensation expenses (regardless of when paid)), this Amendment and the other Loan Documents executed in
connection herewith and the transactions contemplated hereby and thereby (collectively, the Phase II Transaction Expenses) (the Phase II Acquisition and the other related transactions contemplated by the Phase II Acquisition Agreement and any transactions related thereto, together with the transactions described in the foregoing clauses (a) through (d), collectively, the Phase II Transactions).
D. The Borrowers have further requested that the Lenders and the Administrative Agent consent to the applicable Phase II Transactions and the amendment of the Existing Agreement and the Initial Effective Date Credit Agreement in accordance with Sections 2 and 3 respectively, each, as set forth more fully below.
E. The amendments contemplated by this Amendment shall apply only from and after the Initial Effective Date or the Take Private Effective Date, as applicable.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Initial Effective Date Consents and Waivers. Effective upon the satisfaction or waiver of the conditions precedent set forth in Section 4 below on the Initial Effective Date, the Administrative Agent and the undersigned Lenders constituting Required Lenders hereby:
(a) consent to the Loan Parties consummation of the Phase II Transactions on or about the Take Private Effective Date; and
(b) waive any provision of each Credit Agreement or any other Loan Document to the extent such provision would prohibit or condition any of the transactions or actions contemplated by the foregoing clause (a), including without limitation, any provision of Article VII of the Existing Credit Agreement that would prohibit or condition the consummation of any Phase II Transactions.
For the avoidance of doubt, the occurrence of the Take Private Effective Date shall not be a condition to the effectiveness of the consents and waivers set forth in this Section 1.
Section 2. Initial Effective Date Amendments. Effective upon the satisfaction or waiver of the conditions precedent set forth in Section 4 below, on the Initial Effective Date, the Existing Credit Agreement shall be amended as follows:
(a) The following new definitions shall be added to Section 1.01 of the Existing Credit Agreement in alphabetical order:
Amendment No. 1 means Amendment No. 1, dated as of February 4, 2020, to this Agreement.
Amendment No. 1 Effective Date means February 4, 2020.
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Existing Credit Agreement means the Credit Agreement dated as of March 11, 2019 (as amended, supplemented or otherwise modified prior to the Take Private Effective Date), among the Borrowers, the Parent Guarantors, BIP Holdings Manager L.L.C., as parent pledgor, the lenders party thereto and Credit Suisse AG, as administrative agent and collateral agent.
Phase II Incremental Amount has the meaning set forth in the definition of Incremental Availability Amount.
Take Private Effective Date means the date on which the Phase II Acquisition (as defined in Amendment No. 1) is consummated.
(b) The definition of Incremental Availability Amount in Section 1.01 of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
Incremental Availability Amount means (a) from the Amendment No. 1 Effective Date through the Take Private Effective Date, an amount equal to (i) $200,000,000 plus (ii) $375,000,000 (the amount set forth in this clause (ii) (which shall only be used to fund the Phase II Transactions (as defined in Amendment No. 1), the Phase II Incremental Amount) and (b) after the Take Private Effective Date, $200,000,000; provided that, the Borrowers may elect to use the Phase II Incremental Amount (x) regardless of whether the Borrowers have capacity under clause (a)(i) of this definition and/or (y) prior to using clause (a)(i) of this definition.
(c) Section 2.12(d)(iii) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(iii) the aggregate principal amount of the Incremental Term Loans, together with the aggregate principal amount of Incremental Equivalent Debt, shall not exceed the Incremental Availability Amount.
(d) Section 2.12(e)(ii) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(ii) the amortization schedule applicable to any Incremental Term Loans and the All-In Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower Representative and the applicable Additional Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that with respect to any Incremental Term Loans (other than any such Incremental Term Loans incurred on or prior to the Take Private Effective Date using the Phase II Incremental Amount) secured on a pari passu basis with the Initial Term Loans made on or prior to the date that is twenty-four (24) months after the Closing Date, if the All-In Yield applicable to such Incremental Term Loans shall be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans by more than 50 basis points per annum (the amount of such excess of the All-In Yield applicable to such Incremental Term Loans over the sum of the All-In Yield applicable to the Initial Term Loans plus 50 basis points per annum, the Yield
3
Differential) then the interest rate (together with, as provided in the proviso below, the Eurocurrency Rate or Base Rate floor) with respect to the Initial Term Loans shall be increased by the applicable Yield Differential (this proviso, the MFN Protection); provided, further, that, if any such Incremental Term Loans include a Eurocurrency Rate or Base Rate floor that is greater than the Eurocurrency Rate or Base Rate floor applicable to any existing Class of Term Loans, such differential between Eurocurrency Rate or Base Rate floors, as applicable, shall be included in the calculation of All-In Yield for purposes of this clause (ii) but only to the extent an increase in the Eurocurrency Rate or Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, an d in such case the Eurocurrency Rate and Base Rate floors (but not the Applicable Rate) applicable to the existing Term Loans shall be increased to the extent of such differential between Eurocurrency Rate or Base Rate floors as the case may be.
(e) clause (v) of the proviso to Section 7.03(p) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(v) in the case of Incremental Equivalent First Lien Debt in the form of syndicated term loans (other than any such Incremental Equivalent First Lien Debt incurred on or prior to the Take Private Effective Date using the Phase II Incremental Amount), such Incremental Equivalent First Lien Debt shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan,
For the avoidance of doubt, the occurrence of the Take Private Effective Date shall not be a condition to the effectiveness of the amendments set forth in this Section 2.
Section 3. Amended Credit Agreement; DSR Account Termination. Effective on the date on which the Phase II Acquisition is consummated (such date, the Take Private Effective Date), substantially concurrently with the consummation of the Phase II Acquisition:
(a) unless otherwise elected by the Borrower Representative in writing to the Administrative Agent, the Initial Effective Date Credit Agreement (including the schedules and exhibits attached thereto) shall be amended to read as set forth in Annex A hereto (the Amended Credit Agreement, and together with the Existing Credit Agreement and the Initial Effective Date Credit Agreement, the Credit Agreements) by inserting the language indicated in single underlined text (indicated textually in the same manner as the following example: single-underlined text) in Annex A and by deleting the language indicated by strikethrough text (indicated textually in the same manner as the following example: stricken text) in Annex A; provided that, in the event that any Incremental Term Loans are incurred on the Take Private Effective Date, the Amended Credit Agreement shall also incorporate any amendments set forth in an Incremental Amendment in respect of such Incremental Term Loans, in accordance with Section 2.12 of the Amended Credit Agreement; provided further that, notwithstanding Section 10.01 or any other provision of any Credit Agreement or any other Loan Document, the Amended Credit Agreement may also incorporate other amendments to effect such changes and modifications as necessary or otherwise mutually agreed as between the Administrative Agent and the Borrower Representative (without the need to obtain the consent of any other Lender or Person) to effectuate and reflect the Restructuring Transactions; and
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(b) notwithstanding anything to the contrary in the Existing Credit Agreement or the Initial Effective Date Credit Agreement, (i) all assets credited to the Debt Service Reserve Accounts shall be released and available to the Borrowers and Subsidiary Guarantors to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses or for any other use not prohibited by the Loan Documents, and the obligation of the Borrowers to maintain the Debt Service Reserve Accounts shall cease and (ii) any obligation to maintain the DSR L/Cs shall cease, and the Collateral Agent shall promptly take such actions as the Borrower Representative may reasonably request to cause the termination of each DSR L/C then outstanding (collectively, the DSR Account Termination).
For the avoidance of doubt, the only condition (implied or express) to the effectiveness of the Amended Credit Agreement and the DSR Account Termination pursuant to this Section 3 shall be the consummation of the Phase II Acquisition.
Section 4. Conditions to Initial Effective Date. The consents and waivers provided by the Administrative Agent and the Lenders constituting Required Lenders in Section 1 and the amendments to the Existing Credit Agreement set forth in Section 2, shall each become effective on the date (such date, the Initial Effective Date) on which each of the following conditions has been satisfied or waived, which date is February 4, 2020:
(a) the Administrative Agent shall have received duly executed signature pages hereto (including by facsimile or other electronic transmission) from (i) Required Lenders and (ii) each of the Loan Parties;
(b) the representations and warranties set forth in Section 6 shall be true and correct as of the Initial Effective Date (except with respect to representations and warranties expressly made only as of an earlier date, which representations were true and correct as of such earlier date);
(c) the Borrower shall have paid, or caused to be paid, to the extent provided in Section 10.04 of the Existing Credit Agreement, all expenses due to the Administrative Agent required to be paid on the Initial Effective Date and invoiced at least three (3) Business Days before the Initial Effective Date; and
(d) the Administrative Agent (or its counsel) shall have received reasonably satisfactory evidence of authorization of this Amendment by the Loan Parties and a certificate of a Responsible Officer of the Borrower Representative to the effect set forth in Section 6.
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Section 5. Covenants on Take Private Effective Date. Substantially concurrently with the Take Private Effective Date, the Borrowers shall ensure that the following covenants are satisfied, except as otherwise agreed between the Borrower Representative and the Administrative Agent:
(a) The Administrative Agent shall have received the following, each of which shall be originals or .pdf copies or other electronic copies (followed promptly by originals if requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) | each Collateral Document set forth on Schedule I hereto as required to be executed on the Take Private Effective Date as indicated on such schedule (such Collateral Documents, together with this Amendment, collectively, the Take Private Effective Date Loan Documents), duly executed by each Loan Party party thereto, together with, in each case, solely to the extent required by the Collateral and Guarantee Requirement and not previously delivered to the Administrative Agent: |
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under (1) the Security Agreement on assets of the Borrowers and the Guarantors, covering the Collateral described in the Security Agreement and (2) the Pledge Agreement on assets of the Parent Pledgor (as defined in the Amended Credit Agreement), covering the Collateral described in the Pledge Agreement; and
(C) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Take Private Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower Representative hereby provides authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent, such actions, recordings and filings shall be reasonably satisfactory to the Administrative Agent); and
(ii) | an opinion from Vinson & Elkins L.L.P., New York counsel to the Loan Parties. |
provided, however, that, each of the requirements set forth in clause (a)(i) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for (A) the delivery of stock certificates pursuant to clause (c) of the Collateral and Guarantee Requirement (provided that, any stock certificate representing any TEP
6
Units acquired on the Take Private Effective Date (and the related undated stock powers endorsed in blank) required to be delivered shall only be required to be delivered on the Take Private Effective Date to the extent such stock certificate is provided to the Borrowers by the Partnership Parties (as defined in the Phase II Acquisition Agreement) on or prior to the Take Private Effective Date), if any, and (B) the execution and delivery of Collateral Documents set forth on Schedule I hereto that constitute Take Private Effective Date Loan Documents and the filing of financing statements to the extent that a Lien on such Collateral may be perfected by the filing of a financing statement under the Uniform Commercial Code) shall not be required on the Take Private Effective Date after the Borrower Representatives use of commercially reasonable efforts to provide such items on or prior to the Take Private Effective Date without undue burden or expense if the Borrower Representative agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Take Private Effective Date (subject to extensions approved by the Administrative Agent in its reasonable discretion). Upon the Administrative Agent approving such extension, the Administrative Agent will notify the Collateral Agent in writing thereof.
Section 6. Initial Effective Date Representations and Warranties. Each of the Borrowers and Subsidiary Guarantors (and, solely to the extent applicable to it, each of the Parent Guarantors and Parent Pledgor) represents and warrants that as of the date hereof (a) no Default or Event of Default exists or is continuing and (b) all representations and warranties of the Loan Parties contained in Article V of the Existing Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof, as though made on and as of the date hereof except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date (provided that, representations and warranties that are qualified by materiality or Material Adverse Effect are true and correct (after giving effect to any qualification thereof) in all respects on and as of the date hereof or as of the specifically referenced earlier date, as the case may be).
Section 7. Amendment Fee. The Borrowers hereby agree to pay (or cause to be paid) to the Administrative Agent, for the account of each Lender that executed and delivered its signature page to this Amendment on or prior to the Initial Effective Date, a fee in an amount equal to [ ]% of the principal amount of such Lenders Loans in effect on the Initial Effective Date, which fee shall be due and payable on, and subject to the occurrence of, the Take Private Effective Date.
Section 8. Reaffirmation of Guarantee and Security. Each Borrower and each other Loan Party, by its signature below, hereby (a) agrees that, notwithstanding the effectiveness of this Amendment, the Collateral Documents continue to be in full force and effect and (b) affirms and confirms its Guarantee of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral to secure such Obligations, all as provided in the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, such Obligations under each applicable Credit Agreement and the other Loan Documents.
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Section 9. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile transmission or other electronic transmission (e.g., a pdf or tif) of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart hereof. The Administrative Agent may also require that any such documents and signatures delivered by facsimile transmission or other electronic transmission be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile transmission or other electronic transmission.
Section 10. GOVERNING LAW.
(a) | THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. |
(b) | ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE SITTING IN THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH LOAN PARTY, EACH AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. EACH LOAN PARTY, EACH AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AMENDMENT OR ANY OTHER DOCUMENT RELATED HERETO. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 10.02 OF THE APPLICABLE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AMENDMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE COLLATERAL DOCUMENTS AGAINST ANY COLLATERAL OR ANY OTHER PROPERTY OF ANY LOAN PARTY IN ANY OTHER FORUM IN ANY JURISDICTION IN WHICH COLLATERAL IS LOCATED. |
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Section 11. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Amendment.
Section 12. No Novation; Effect of this Amendment. This Amendment shall not extinguish the Obligations for the payment of money outstanding under any Credit Agreement or discharge or release the lien or priority of any Loan Document or any other security therefor or any Guarantee thereof, and the Liens and security interests existing immediately prior to the Initial Effective Date in favor of the Collateral Agent for the benefit of the Secured Parties (as defined in the Security Agreement) securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations. Except as expressly provided, nothing herein contained shall be construed as a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations outstanding under any Credit Agreement or instruments Guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Amendment or any other document contemplated hereby shall be construed as a release or other discharge of any Loan Party under any Credit Agreement or any other Loan Document from any of its obligations and liabilities thereunder, and except as expressly provided, such obligations are in all respects continuing with only the terms being modified as provided in this Amendment. The Existing Credit Agreement and each of the other Loan Documents shall remain in full force and effect, until and except as modified. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agents under any Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in any Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in any Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply and be effective only with respect to the provisions of each Credit Agreement specifically referred to herein. Each Guarantor further agrees that nothing in any Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendment to such Credit Agreement. This Amendment constitutes a Loan Document for all purposes of the Credit Agreements and the other Loan Documents.
Section 13. WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
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OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 12 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 14. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
BORROWERS: |
PRAIRIE ECI ACQUIROR LP | ||||
PRAIRIE VCOC ACQUIROR LP | ||||
PRAIRIE NON-ECI ACQUIROR LP | ||||
By: BIP Holdings Manager L.L.C., its general partner | ||||
By: | /s/ Christopher Placca | |||
Name: Christopher Placca | ||||
Title: Managing Director |
[Signature Page to Amendment No. 1]
PARENT GUARANTORS: |
PRAIRIE ECI ACQUIROR LP | ||||
PRAIRIE VCOC ACQUIROR LP | ||||
PRAIRIE NON-ECI ACQUIROR LP | ||||
By: BIP Holdings Manager L.L.C., its general partner | ||||
By: | /s/ Christopher Placca | |||
Name: Christopher Placca | ||||
Title: Managing Director |
[Signature Page to Amendment No. 1]
SUBSIDIARY GUARANTORS: | ||
PRAIRIE GP ACQUIROR LLC | ||
By: Prairie ECI Acquiror LP, its managing member | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Christopher Placca | |
Name: Christopher Placca | ||
Title: Managing Director |
[Signature Page to Amendment No. 1]
PARENT PLEDGOR: | ||
BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Christopher Placca | |
Name: Christopher Placca | ||
Title: Managing Director |
[Signature Page to Amendment No. 1]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH | ||
as Administrative Agent and Collateral Agent | ||
By: | /s/ Nupur Kumar | |
Name: | Nupur Kumar | |
Title: | Authorized Signatory | |
By: | /s/ Brady Bingham | |
Name: | Brady Bingham | |
Title: | Authorized Signatory |
[Signature Page to Amendment No. 1]
LENDER SIGNATURES ON FILE WITH ADMINISTRATIVE AGENT
[Signature Page to Amendment No. 1]
Exhibit 23
INCREMENTAL AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment), dated as of February 14, 2020 (the Initial Effective Date), among PRAIRIE ECI ACQUIROR LP, a Delaware limited partnership (the Borrower Representative), PRAIRIE MERGER SUB, LLC, a Delaware limited liability company (Merger Sub Borrower), PRAIRIE VCOC ACQUIROR LP, a Delaware limited partnership (VCOC Borrower), PRAIRIE NON-ECI ACQUIROR LP, a Delaware limited partnership (Non-ECI Borrower and, together with the Borrower Representative, Merger Sub Borrower and VCOC Borrower, collectively, the Borrowers), the Parent Guarantors and Subsidiary Guarantors party hereto (collectively, the Guarantors), BIP HOLDINGS MANAGER L.L.C., a Delaware limited liability company as the Parent Pledgor, the Incremental Lenders (as defined below) party hereto and CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative Agent (in such capacity, the Administrative Agent) and Collateral Agent.
A. The Borrowers, the Guarantors, the Parent Pledgor, the Administrative Agent and the Collateral Agent and the Lenders and the other parties from time to time party thereto are parties to the Credit Agreement dated as of March 11, 2019 (as amended by Amendment No. 1 to Credit Agreement, dated as of February 4, 2020 (Amendment No. 1) and as further amended, amended and restated, supplemented and otherwise modified prior to the Initial Effective Date, the Existing Credit Agreement, and the Existing Credit Agreement, as amended by the amendments set forth in Section 2, the Amended Credit Agreement; the Existing Credit Agreement and the Amended Credit Agreement, collectively, the Credit Agreements). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Existing Credit Agreement.
B. Prairie Private Acquiror LP, a Delaware limited partnership and an Affiliate of the Borrowers (Buyer) intends that, in accordance with the terms of that certain Agreement and Plan of Merger, dated as of December 16, 2019 (including all schedules and exhibits thereto and as may be amended, supplemented or otherwise modified and in effect from time to time, the Phase II Acquisition Agreement) by and among Buyer, Merger Sub Borrower, TGE and TGE GP, Buyer and/or Merger Sub Borrower will acquire the remaining Equity Interests in TGE owned by its public shareholders (the Phase II Acquisition).
C. In connection with the Phase II Acquisition and the other related transactions contemplated by the Phase II
Acquisition Agreement, (a) on or prior to the date on which the Phase II Acquisition is consummated (such date, the Take Private Effective Date), the Investors and certain other investors designated by the Investors (together
with the Investors, the Co-Investors) will, directly or indirectly, contribute an aggregate amount of cash that represents, together with the aggregate amount of funds in the Distribution
Account (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith) and the Debt Service Reserve Account as of the Take Private Effective Date (collectively, the Phase II Equity
Contribution), not less than (such amount, as it may be reduced from time to time in accordance with
Section 3(d)(iii)(A), the Minimum Phase II Equity Contribution Amount) 70% of the
sum of (i) the aggregate gross proceeds received from the Incremental Loans (as defined below) (excluding any Incremental Loans incurred to fund OID or upfront fees in respect thereof) on the Take Private Effective Date and
(ii) the aggregate amount of the Phase II Equity Contribution as of the Take Private Effective Date, (b) on the Take Private Effective Date, the Borrowers and the other Loan Parties may enter into one or more Restructuring
Transactions (as defined in Amendment No. 1), (c) on the Take Private Effective Date, one or more Borrowers may incur the Incremental Loans and/or TEP or one or more of its Subsidiaries may incur Indebtedness for borrowed money (such Indebtedness for borrowed money, Affiliate Indebtedness) to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses (as defined below), (d) on the Take Private Effective Date, the DSR Account Termination (as defined in Amendment No. 1) shall occur and the proceeds of the Debt Service Reserve Account may be used to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses and (e) on the Take Private Effective Date, the Loan Parties, the Co-Investors and/or their respective Affiliates will pay, or cause to be paid, any fees or expenses incurred by the Loan Parties, the Co-Investors or any of their respective Subsidiaries in connection with the Phase II Transactions (as defined below) (including expenses in connection with hedging transactions related to the Obligations, any OID or upfront fees, employee retention payments and deferred compensation expenses (regardless of when paid)), this Amendment, Amendment No. 1 and the other Loan Documents executed in connection herewith or therewith and the transactions contemplated hereby and thereby (collectively, the Phase II Transaction Expenses) (the Phase II Acquisition and the other related transactions contemplated by the Phase II Acquisition Agreement and any transactions related thereto, together with the transactions described in the foregoing clauses (a) through (e), collectively, the Phase II Transactions).
D. Pursuant to Section 2.12 of the Existing Credit Agreement, the Borrowers may from time to time request one or more Incremental Commitments from existing Lenders and/or any other bank or other financial institution or other institutional lender (any such other bank or other financial institution or other institutional lender, an Additional Lender) in the form of a Term Loan Increase, subject to the terms and conditions set forth therein.
E. The Borrowers have requested that, in connection with the Phase II Transactions, each existing Lender and each Additional Lender listed on Schedule I hereto (collectively, the Incremental Lenders) provide an Incremental Commitment in the principal amount set forth opposite its name on Schedule I (each, an Incremental Commitment), with aggregate Incremental Commitments of all Incremental Lenders equal to $375,000,000.
F. Each Incremental Lender is willing, subject solely to the terms and conditions set forth in Section 3, to make to the applicable Borrowers an Incremental Term Loan (each, an Incremental Loan) on the Take Private Effective Date, in a principal amount up to such Incremental Lenders Incremental Commitment, the proceeds of which will be used to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
Section 1. Initial Effective Date Commitments. As of the Initial Effective Date, each Incremental Lender hereby agrees, severally and not jointly, prior to the Incremental Commitment Termination Date (as defined below), to make Incremental Loans to Merger Sub Borrower and/or one or more other Borrowers on the Take Private Effective Date in accordance
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with the terms and conditions set forth in this Amendment, in a principal amount equal to such Incremental Lenders Applicable Percentage (as defined below) of the Incremental Loans to be funded on the Take Private Effective Date, but in any event, not to exceed such Incremental Lenders Incremental Commitment set forth on Schedule I hereto. The Incremental Commitments shall automatically terminate upon the earliest to occur (the Incremental Commitment Termination Date) of (i) the Borrowing of Incremental Loans on the Take Private Effective Date, (ii) the valid termination of the Phase II Acquisition Agreement prior to the consummation of the Phase II Acquisition and (iii) July 23, 2020; provided that, notwithstanding anything to the contrary in this Amendment or any Loan Document, (x) the Borrowers may elect to terminate Incremental Commitments, in whole or in part, at any time and from time to time and (y) if the Phase II Acquisition is consummated without the funding of the Incremental Loans, the Incremental Commitments shall automatically terminate at such time. As used herein, Applicable Percentage means, with respect to each Incremental Lender at any time a fraction (expressed as a percentage carried out to the ninth decimal place), the numerator of which is the amount of the Incremental Commitment of such Incremental Lender at such time and the denominator of which is the amount of the aggregate Incremental Commitments at such time.
Section 2. Incremental Amendment. Effective upon the satisfaction or waiver of the conditions precedent set forth in Section 3 below, the Borrowers, the Incremental Lenders and the Administrative Agent hereby agree that:
(a) This Section 2 is an Incremental Amendment as referred to in Section 2.12 of the Credit Agreements.
(b) Without limiting any provision of Section 1.10 of the Credit Agreements, Merger Sub Borrower is hereby designated as the borrower in respect of the Incremental Loans in accordance with Section 2.12(f) of the Credit Agreements, as such designation may be modified in writing by the Borrower Representative at any time and from time to time prior to the funding of the Incremental Loans on the Take Private Effective Date.
(c) The aggregate principal amount of the Incremental Commitments on the Initial Effective Date is $375,000,000.
(d) The Incremental Loans incurred pursuant to this Amendment shall be incurred using the Phase II Incremental Amount (as defined in Amendment No. 1).
(e) The Incremental Commitments provided pursuant to this Amendment shall constitute Incremental Commitments referred to in Section 2.12 of each Credit Agreement and, on the Take Private Effective Date, the Incremental Commitment of each Incremental Lender shall become the Incremental Term Loans of such Incremental Lender.
(f) The Incremental Loans shall have the same terms (after giving effect to the amendment set forth below in Sections 2(h) through (m)) and shall be deemed to be Initial Term Loans for all purposes under the Credit Agreements and each other Loan Document, including, but not limited to the fact that the Incremental Loans will mature on the Maturity Date applicable to the Initial Term Loans.
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(g) The proceeds of the Incremental Loans shall be used to partially fund the Phase II Acquisition, the Restructuring Transactions and/or the Phase II Transaction Expenses.
(h) Effective as of the Take Private Effective Date, the following new definition shall be added to Section 1.01 of the Existing Credit Agreement in alphabetical order:
Incremental Amendment No. 1 means Incremental Amendment No. 1, dated as of February 14, 2020, to this Agreement.
(i) Effective as of the Take Private Effective Date, the definitions of Initial Term Loans and OID in Section 1.01 of the Existing Credit Agreement shall be amended and restated in their entirety and replaced by the following:
Initial Term Loans means the term loans made by the Lenders on the Closing Date to the Borrowers pursuant to Section 2.01 and the term loans made by the Lenders on the Take Private Effective Date to the Borrowers pursuant to Section 2 of Incremental Amendment No. 1.
OID Amount means OID in an amount equal to (a) in the case of the Initial Term Loans made on the Closing Date, 0.75% of the aggregate principal amount of such Initial Term Loans, (b) in the case of the Initial Term Loans made on the Take Private Effective Date, 1.00% of the aggregate principal amount of such Initial Term Loans, and (c) in the case of any Incremental Term Loans or Refinancing Term Loans, an amount set forth in the Incremental Amendment for such Incremental Term Loans or the Refinancing Amendment for such Refinancing Term Loans.
(j) Effective as of the Take Private Effective Date, Section 2.03(a)(iii) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(iii) In the event that, on or prior to the date that is six (6) months following the Take Private Effective Date, any Borrower (x) prepays, refinances, substitutes or replaces any Initial Term Loans pursuant to a Repricing Transaction, or (y) effects any amendment, amendment and restatement or other modification of this Agreement resulting in a Repricing Transaction, the Borrowers shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, (1) in the case of clause (x), a prepayment premium of one percent (1.0%) of the aggregate principal amount of the Initial Term Loans so prepaid, refinanced, substituted or replaced and (2) in the case of clause (y), a fee equal to one percent (1.0%) of the aggregate principal amount of the applicable Initial Term Loans amended or otherwise modified pursuant to such amendment. If, on or prior to the six (6) month anniversary of the Take Private Effective Date, any Lender that is a Non-Consenting Lender is replaced pursuant to Section 3.07(a) in connection with any amendment, amendment and restatement or other modification of this Agreement resulting in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to Section 3.07(a)) shall receive its Pro Rata Share (as determined immediately prior to it being so replaced) of the prepayment premium or fee described in the preceding sentence. Such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
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(k) Effective as of the Take Private Effective Date, in accordance with clause (E) of the preantepenultimate paragraph of Section 10.01 of the Existing Credit Agreement, Section 2.05(a) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(a) Term Loans. The Borrowers shall repay to the Administrative Agent for the ratable account of the Appropriate Lenders (i) on each Quarterly Payment Date, starting with the Quarterly Payment Date occurring on December 31, 2023, an aggregate principal amount equal to the sum (without duplication) of (x) 0.25% of the aggregate principal amount of the Initial Term Loans incurred and outstanding on the Closing Date (such amount being the Existing Quarterly Amortization Amount) and (y) an amount equal to (A) the aggregate principal amount of the Incremental Term Loans incurred and outstanding on the Take Private Effective Date multiplied by (B) a fraction the numerator of which is the Existing Quarterly Amortization Amount and the denominator of which is the aggregate principal amount of the Initial Term Loans outstanding immediately prior to the Take Private Effective Date and (ii) on the Maturity Date for the Initial Term Loans, the aggregate principal amount of all Initial Term Loans outstanding on such date; provided that payments required by Section 2.05(a)(i) above shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.03(b). In the event any Incremental Term Loans, Refinancing Term Loans or Extended Term Loans are made, such Incremental Term Loans, Refinancing Term Loans or Extended Term Loans, as applicable, shall be repaid by the Borrowers in the amounts and on the dates set forth in the Incremental Amendment, Refinancing Amendment or Extension Amendment with respect thereto and on the applicable Maturity Date thereof. For the avoidance of doubt, the full amount of the Loans (without taking into account any netting of the OID Amount occurring on the Closing Date or the Take Private Effective Date, as applicable) shall be repaid in accordance with this Section 2.05 and Section 2.03.
(l) Effective as of the Take Private Effective Date, Section 2.06(c) of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. For the avoidance of doubt, interest shall be payable on the full amount of the Loans (without taking into account any netting of the OID Amount occurring on the Closing Date or Take Private Effective Date, as applicable) in accordance with this Section 2.06.
(m) Effective as of the Take Private Effective Date, Section 6.13 of the Existing Credit Agreement shall be amended and restated in its entirety and replaced by the following:
Section 6.13 Maintenance of Ratings. In respect of the Borrowers, use commercially reasonable efforts to (i) cause the Initial Term Loans in existence on the Closing Date or the Take Private Effective Date, as applicable, to be continuously rated (but not any specific rating) by S&P and Moodys and (ii) maintain a public corporate rating (but not any specific rating) from S&P and a public corporate family rating (but not any specific rating) from Moodys.
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Section 3. Conditions to Borrowing Incremental Loans. The obligation of each Incremental Lender to fund the Borrowing of Incremental Loans on the Take Private Effective Date is subject to the satisfaction or waiver of the following conditions precedent, except as otherwise agreed between the Borrower Representative and the Administrative Agent:
(a) The Administrative Agent shall have received the following, each of which shall be originals or .pdf copies or other electronic copies (followed promptly by originals if requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) | a Committed Loan Notice with respect to the Incremental Loans; provided that, notwithstanding anything to the contrary in Section 2.02 of the Credit Agreements, such Committed Loan Notice may be delivered no later than (1) Business Day prior to the Take Private Effective Date; |
(ii) | each Collateral Document set forth on Schedule I hereto as required to be executed on the Take Private Effective Date as indicated on such schedule (such Collateral Documents, together with this Amendment, collectively, the Take Private Effective Date Loan Documents), duly executed by each Loan Party party thereto, together with, in each case, solely to the extent required by the Collateral and Guarantee Requirement and not previously delivered to the Administrative Agent: |
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under (1) the Security Agreement on assets of the Borrowers and the Guarantors, covering the Collateral described in the Security Agreement and (2) the Pledge Agreement on assets of the Parent Pledgor (as defined in the Amended Credit Agreement), covering the Collateral described in the Pledge Agreement; and
(C) evidence that all other actions, recordings and filings required by the Collateral Documents as of the Take Private Effective Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall
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have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower Representative hereby provides authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent, such actions, recordings and filings shall be reasonably satisfactory to the Administrative Agent);
(iii) | an opinion from Vinson & Elkins L.L.P., New York counsel to the Loan Parties; |
(iv) | copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; |
(v) | such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action and, to the extent not previously delivered to the Administrative Agent, incumbency certificates evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Loan Party is a party or is to be a party on the Take Private Effective Date; |
(vi) | a solvency certificate from the chief financial officer, chief accounting officer, manager or other officer
with equivalent duties of the Borrowers (after giving effect to the Phase II Transactions) substantially in the form attached hereto as |
(vii) | a certificate, dated the Take Private Effective Date and signed by a Responsible Officer of the Borrower Representative, confirming satisfaction of the conditions set forth in Section 3(d) and (e); |
provided, however, that, each of the requirements set forth in clause (a)(ii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for (A) the delivery of stock certificates pursuant to clause (c) of the Collateral and Guarantee Requirement (provided that, any stock certificate representing any TEP Units acquired on the Take Private Effective Date (and the related undated stock powers endorsed in blank) required to be delivered shall only be required to be delivered on the Take Private Effective Date to the extent such stock certificate is provided to the Borrowers by the Partnership Parties (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith) on or prior to the Take Private Effective Date), if any, and (B) the execution and delivery of Collateral Documents set forth on Schedule II hereto that constitute Take Private Effective Date Loan Documents and the filing of financing statements to the extent that a Lien on such Collateral may be perfected by the filing of a financing statement under the
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Uniform Commercial Code) shall not constitute conditions precedent to any Borrowing on the Take Private Effective Date after the Borrower Representatives use of commercially reasonable efforts to provide such items on or prior to the Take Private Effective Date without undue burden or expense if the Borrower Representative agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Take Private Effective Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(b) The Borrowers shall have paid (or caused to be paid) to the Administrative Agent the Ticking Fees (as defined below), if any, required to be paid under Section 5.
(c) All reasonable and documented out-of-pocket expenses due to the Administrative Agent, the Collateral Agent and their respective Affiliates required to be paid on the Take Private Effective Date and invoiced at least three (3) Business Days before the Take Private Effective Date (except as otherwise reasonably agreed by the Investors) shall have been paid (or caused to be paid), to the extent provided in Section 10.04 of the Existing Credit Agreement;
(d) Prior to or substantially concurrently with the Borrowing of Incremental Loans on the Take Private Effective Date, (i) the Phase II Equity Contribution in an amount not less than the Minimum Phase II Equity Contribution Amount shall have been contributed, directly or indirectly, to Buyer; (ii) the Phase II Acquisition shall have been consummated in all material respects in accordance with the terms of the Phase II Acquisition Agreement and (iii) the Phase II Acquisition Agreement shall not have been amended or waived in any material respect by Buyer or Merger Sub Borrower in a manner materially adverse to the Incremental Lenders (in their capacities as such) without the consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned); provided, however, that: (A) any amendment or waiver which results in a reduction in the Merger Consideration (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith) shall not be deemed to be materially adverse to the Incremental Lenders to the extent such reduction is applied (x) first, to reduce the cash component of the Phase II Equity Contribution on a dollar-for-dollar basis until the amount of the Phase II Equity Contribution is equal to the Minimum Phase II Equity Contribution Amount and (y) after giving effect to the application of such reduction in clause (x) above, to reduce on a pro rata basis (1) the Phase II Equity Contribution and (2) the amount of any Affiliate Indebtedness and the amount of the Incremental Commitments; (B) any increase in the Merger Consideration shall not be deemed to be materially adverse to the Incremental Lenders; (C) any amendment to the definition of Partnership Material Adverse Effect in the Phase II Acquisition Agreement shall be deemed to be materially adverse to the interests of the Incremental Lenders and (D) any extension of the Outside Date (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith) shall not be deemed to be materially adverse to the Incremental Lenders if such extended date is on or prior to July 23, 2020.
(e) The representations and warranties pertaining to the Loan Parties set forth in Section 4 (collectively, the Specified Representations) shall be true and correct in all material respects on and as of the Take Private Effective Date (or, to the extent qualified by materiality, true and correct in all respects); provided that, to the extent that such representations
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and warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such earlier date or period (or, to the extent qualified by materiality, true and correct in all respects) for purposes of making or deemed making such Specified Representation on, or as of, the Take Private Effective Date; provided, further, that any references to Material Adverse Effect in the Specified Representations shall be deemed to be references to Partnership Material Adverse Effect (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith).
(f) The representations and warranties made by the Partnership Parties in the Phase II Acquisition Agreement that are material to the interests of the Incremental Lenders shall be true and correct in all material respects on the Take Private Effective Date, but only to the extent that Buyer or Merger Sub Borrower has the right (taking into account any applicable cure provisions) to terminate its obligations under the Phase II Acquisition Agreement, or to decline to consummate the transactions contemplated under the Phase II Acquisition Agreement (in accordance with the terms thereof), as a result of a breach of such representations and warranties (collectively, to such extent, the Phase II Acquisition Agreement Representations).
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Take Private Effective Date all documentation and other information about the Loan Parties that become or are required to become Loan Parties on the Take Private Effective Date, as required under applicable know your customer and anti-money laundering rules and regulations, including the USA PATRIOT Act, that has been reasonably requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Take Private Effective Date.
(h) Since December 16, 2019, there shall not have been any event, change, fact, development, circumstance, condition or occurrence with respect to the Partnership Entities (as defined in the Phase II Acquisition Agreement as in effect on the date hereof, or as amended in accordance herewith) that has had or would, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect.
(i) No Payment or Bankruptcy Default with respect to any Borrower shall have occurred and be continuing or would exist after giving effect to the Incremental Commitments.
Notwithstanding anything to the contrary in this Amendment or any other Loan Document, the commitments of the Incremental Lenders to make Incremental Loans are subject only to the conditions expressly set forth in this Section 3 (the Incremental Funding Conditions); it being understood that there are no conditions (implied or otherwise) to the commitments hereunder for any Incremental Loans (including, without limitation, compliance with the terms of this Agreement, Amendment No. 1, any Credit Agreement or any other Loan Document) other than the applicable Incremental Funding Conditions, and upon satisfaction or waiver of the applicable Incremental Funding Conditions, the funding of the Incremental Loans shall occur. For the purpose of determining satisfaction of the Incremental Funding Conditions, each Incremental Lender that has signed and delivered this Amendment shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 3 unless the Administrative Agent shall have received written notice from such Incremental Lender prior to the Take Private Effective Date specifying its objection thereto.
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Section 4. Specified Representations. The following representations and warranties in this Section 4 shall constitute the Specified Representations for purposes of Section 3(e) to be made on and as of the Take Private Effective Date in accordance with the terms and conditions of Section 3(e):
(a) | Each Loan Party (i) is a Person duly organized and formed, validly existing and in good standing (where relevant) under the Laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority to (A) execute and deliver each Take Private Effective Date Loan Document to which it is a party and (B) perform its obligations under the Loan Documents to which it is a party. |
(b) | The execution and delivery by each Loan Party of each Take Private Effective Date Loan Document to which such Person is a party, the performance by each Loan Party of each Loan Document to which such Person is a party and the funding of the Incremental Loans (i) are within such Loan Partys corporate or other powers, (ii) have been duly authorized by all necessary corporate or other organizational action and (iii) solely with respect to the execution and delivery of the Take Private Effective Date Loan Documents by the Loan Parties and the performance of the Loan Documents by the Loan Parties (in each case, to the extent such Loan Party is a party thereto), the incurrence of the Incremental Loans by the applicable Borrowers, the granting of the Guarantees by the Borrowers and the Guarantors, and the security interest granted to secure the Obligations by the Loan Parties pursuant to the Security Agreement and the Pledge Agreement, do not contravene the terms of any of such Persons Organization Documents. |
(c) | This Amendment and each other Take Private Effective Date Loan Document has been duly executed and delivered by each Loan Party that is a party thereto. This Amendment and each other Loan Document constitutes, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is a party thereto in accordance with its terms, except as such enforceability may be limited by (i) Debtor Relief Laws and by general principles of equity, (ii) the need for filings, recordations and registrations necessary to create or perfect the Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties and (iii) the effect of foreign Laws, rules and regulations as they relate to pledges, if any, of Equity Interests in Foreign Subsidiaries. |
(d) | (i) No Borrower is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, in either case in violation of Regulation U. |
(ii) No part of the proceeds of any Incremental Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of the regulations of the FRB, including Regulation T, U or X.
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(iii) No Borrower, any Person Controlling such Borrower, or any Subsidiary Guarantor is or is required to be registered as an investment company under the Investment Company Act of 1940.
(e) | On the Take Private Effective Date, after giving effect to the Phase II Transactions, each of the Borrowers and their respective Subsidiaries, on a consolidated basis, are Solvent. |
(f) | (i) To the extent applicable, each Loan Party is in compliance, in all material respects, with the USA PATRIOT Act. |
(ii) No part of the proceeds of the Incremental Loans will be used, directly or indirectly, by any Borrower, (A) in violation of the United States Foreign Corrupt Practices Act of 1977, as amended or (B) for the purpose of financing any activities or business of or with any Person, or in any country or territory, in violation of any Sanctions to which such Person, country or territory is subject to at the time of such financing.
(g) | Subject to the proviso to Section 3(a): |
(i) each Collateral Document delivered pursuant to Section 3(a)(ii) of this Amendment and Sections 6.11 and 6.12 of the Amended Credit Agreement will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral described therein to the extent intended to be created thereby and (A) when financing statements and other filings in appropriate form are filed in the applicable offices specified in the applicable Take Private Effective Date Loan Documents and (B) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security Agreement or the Pledge Agreement, as applicable), the Liens created by the Collateral Documents shall constitute fully perfected Liens on, and security interests in (to the extent intended to be created thereby), all right, title and interest of the grantors in such Collateral to the extent perfection can be obtained by filing financing statements, possession or control, in each case subject to no Liens other than Liens permitted under the Amended Credit Agreement; and
(ii) if any Intellectual Property Security Agreement or a short form thereof is properly filed in the United States Patent and Trademark Office and the United States Copyright Office the Liens created by such Intellectual Property Security Agreement shall, to the extent such filings may perfect such interests, constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in Patents (as defined in the Intellectual Property Security Agreement) or Trademarks (as defined in the Intellectual Property Security Agreement) registered or applied for with the United States Patent and Trademark Office or Copyrights (as defined in such Intellectual Property Security Agreement) registered or applied for with the United States Copyright Office, as the case may be, in each case subject to no Liens other than Liens permitted under the
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Amended Credit Agreement (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to establish a Lien on certain registrations and applications for Patents, Trademarks and Copyrights acquired by the grantors thereof after the Take Private Effective Date).
Section 5. Ticking Fee. The Borrowers hereby agree to pay (or cause to be paid) to the Administrative Agent for the account of each Incremental Lender on the Take Private Effective Date, a ticking fee (the Ticking Fee), if any, equal to such Incremental Lenders Ticking Fee Percentage of the aggregate principal amount of Incremental Commitments as in effect immediately prior to the Incremental Commitment Termination Date, beginning to accrue on the sixty-first (61st) day after February 5, 2020, up to but excluding the Incremental Commitment Termination Date. Ticking Fee Percentage means, with respect to any Incremental Commitment, (A) [ ]% per annum for the period commencing on the sixty-first (61st) day after February 5, 2020, up to and including the ninetieth (90th) day after February 5, 2020 and (B) [ ]% per annum thereafter, in each case, calculated on the basis of the actual number of days elapsed in a three hundred sixty (360)-day year; provided, for the avoidance of doubt, that, no Ticking Fee shall be payable in the event that the Borrowers do not incur any Incremental Loans on the Take Private Effective Date.
Section 6. Reaffirmation of Guarantee and Security. Each Borrower and each other Loan Party, by its signature below, hereby (a) agrees that, notwithstanding the effectiveness of this Amendment, the Collateral Documents continue to be in full force and effect and (b) affirms and confirms its Guarantee of the Obligations and the pledge of and/or grant of a security interest in its assets as Collateral to secure such Obligations, all as provided in the Collateral Documents as originally executed, and acknowledges and agrees that such guarantee, pledge and/or grant continue in full force and effect in respect of, and to secure, such Obligations under each applicable Credit Agreement and the other Loan Documents.
Section 7. Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by facsimile transmission or other electronic transmission (e.g., a pdf or tif) of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart hereof. The Administrative Agent may also require that any such documents and signatures delivered by facsimile transmission or other electronic transmission be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by facsimile transmission or other electronic transmission.
Section 8. GOVERNING LAW.
(a) | THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT (A) THE INTERPRETATION OF THE DEFINITION OF PARTNERSHIP MATERIAL ADVERSE EFFECT AND (B) THE DETERMINATION OF THE ACCURACY OF ANY PHASE II ACQUISITION AGREEMENT REPRESENTATIONS AND WHETHER AS A RESULT OF ANY |
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INACCURACY THEREOF MERGER SUB BORROWER OR BUYER HAS THE RIGHT TO TERMINATE ITS OBLIGATIONS UNDER THE PHASE II ACQUISITION AGREEMENT OR THE FAILURE OF SUCH PHASE II ACQUISITION AGREEMENT REPRESENTATIONS TO BE ACCURATE RESULTS IN A FAILURE OF A CONDITION PRECEDENT TO MERGER SUB BORROWERS OR BUYERS OBLIGATION TO CONSUMMATE THE PHASE II ACQUISITION PURSUANT TO THE PHASE II ACQUISITION AGREEMENT SHALL, IN EACH CASE, BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE GOVERNING LAW OF THE PHASE II ACQUISITION AGREEMENT. |
(b) | ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE SITTING IN THE BOROUGH OF MANHATTAN, AND BY EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH LOAN PARTY, EACH AGENT AND EACH INCREMENTAL LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. EACH LOAN PARTY, EACH AGENT AND EACH INCREMENTAL LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AMENDMENT OR ANY OTHER DOCUMENT RELATED HERETO. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT IN THE MANNER PROVIDED FOR NOTICES (OTHER THAN TELECOPIER OR OTHER ELECTRONIC TRANSMISSION) IN SECTION 10.02 OF THE APPLICABLE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AMENDMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY INCREMENTAL LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION TO ENFORCE ANY AWARD OR JUDGMENT OR EXERCISE ANY RIGHT UNDER THE COLLATERAL DOCUMENTS AGAINST ANY COLLATERAL OR ANY OTHER PROPERTY OF ANY LOAN PARTY IN ANY OTHER FORUM IN ANY JURISDICTION IN WHICH COLLATERAL IS LOCATED. |
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Section 9. Headings. Section headings herein are included for convenience of reference only and shall not affect the interpretation of this Amendment.
Section 10. No Novation; Effect of this Amendment. This Amendment shall not extinguish the Obligations for the payment of money outstanding under any Credit Agreement or discharge or release the lien or priority of any Loan Document or any other security therefor or any Guarantee thereof, and the Liens and security interests existing immediately prior to the Initial Effective Date in favor of the Collateral Agent for the benefit of the Secured Parties (as defined in the Security Agreement) securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations. Except as expressly provided, nothing herein contained shall be construed as a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations outstanding under any Credit Agreement or instruments Guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Nothing expressed or implied in this Amendment or any other document contemplated hereby shall be construed as a release or other discharge of any Loan Party under any Credit Agreement or any other Loan Document from any of its obligations and liabilities thereunder, and except as expressly provided, such obligations are in all respects continuing with only the terms being modified as provided in this Amendment. The Existing Credit Agreement and each of the other Loan Documents shall remain in full force and effect, until and except as modified. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Agents under any Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in any Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in any Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply and be effective only with respect to the provisions of each Credit Agreement specifically referred to herein. Each Guarantor further agrees that nothing in any Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Guarantor to any future amendment to such Credit Agreement. This Amendment constitutes a Loan Document for all purposes of the Credit Agreements and the other Loan Documents.
Section 11. WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AMENDMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AMENDMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AMENDMENT OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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Section 12. Severability. If any provision of this Amendment is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
BORROWERS: | ||||
PRAIRIE ECI ACQUIROR LP | ||||
PRAIRIE VCOC ACQUIROR LP | ||||
PRAIRIE NON-ECI ACQUIROR LP | ||||
By: BIP Holdings Manager L.L.C., its general partner | ||||
By: | /s/ Christopher Placca | |||
Name: Christopher Placca | ||||
Title: Managing Director | ||||
PRAIRIE MERGER SUB LLC | ||||
By: Prairie Private Acquiror LP, its sole member | ||||
By: BIP Holdings Manager, L.L.C., its general partner |
By: | /s/ Christopher Placca | |||
Name: Christopher Placca | ||||
Title: Managing Director |
[Signature Page to Incremental Amendment No. 1]
PARENT GUARANTORS: | ||
PRAIRIE ECI ACQUIROR HOLDCO LP | ||
PRAIRIE VCOC ACQUIROR HOLDCO LP | ||
PRAIRIE NON-ECI ACQUIROR HOLDCO LP | ||
PRAIRIE PRIVATE ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Christopher Placca | |
Name: Christopher Placca | ||
Title: Managing Director |
[Signature Page to Incremental Amendment No. 1]
PARENT PLEDGOR: | ||
BIP HOLDINGS MANAGER L.L.C. | ||
By: | /s/ Christopher Placca | |
Name: Christopher Placca | ||
Title: Managing Director |
[Signature Page to Incremental Amendment No. 1]
SUBSIDIARY GUARANTORS: | ||
PRAIRIE GP ACQUIROR LLC | ||
By: Prairie ECI Acquiror LP, its managing member | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Christopher Placca | |
Name: Christopher Placca | ||
Title: Managing Director |
[Signature Page to Incremental Amendment No. 1]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, | ||
as Administrative Agent and Collateral Agent | ||
By: | /s/ Nupur Kumar | |
Name: | Nupur Kumar | |
Title: | Authorized Signatory | |
By: | /s/ Brady Bingham | |
Name: | Brady Bingham | |
Title: | Authorized Signatory |
[Signature Page to Incremental Amendment No. 1]
LENDER SIGNATURES ON FILE WITH ADMINISTRATIVE AGENT
[Signature Page to Incremental Amendment No. 1]
Exhibit 24
CREDIT SUISSE LOAN FUNDING LLC CREDIT SUISSE AG |
CITIGROUP GLOBAL MARKETS INC. 388 Greenwich Street New York, NY 10013 |
JEFFERIES FINANCE LLC 520 Madison Avenue New York, NY 10022 | ||
MUFG BANK, LTD. |
BLACKSTONE HOLDINGS FINANCE CO. L.L.C. 345 Park Avenue |
CONFIDENTIAL
January 24, 2020
PRAIRIE PRIVATE ACQUIROR LP
with a copy to:
Jasmine Ventures Pte. Ltd. 168 Robinson Road #37-01 Capital Tower Singapore, 068912 Attention: Ankur Meattle; Ashok Samuel |
and
GIC Special Investments Pte. Ltd. New York, New York, 10017 Attention: Alex Greenbaum and Yoni Gontownik
and
Enagás, S.A. |
Project Prairie II
Amended and Restated Commitment Letter
Ladies and Gentlemen:
Reference is made to that certain Commitment Letter (the Original Commitment Letter), dated as of December 16, 2019 (the Original Commitment Letter Date), between Credit Suisse AG (acting through such of its affiliates or branches as it deems appropriate, CS), Credit Suisse Loan Funding LLC (CSLF and, together with any designated affiliates and CS, Credit Suisse), Citigroup Global Markets Inc. (CGMI) on behalf of Citi (as defined below) and Jefferies Finance LLC (together with any of its designated affiliates, Jefferies and, together with Credit Suisse, Citi and any other Commitment Parties appointed as described below, collectively, the Original Commitment Parties). The Original Commitment Parties, MUFG Bank, LTD. (MUFG), Blackstone Holdings Finance Co. L.L.C. (acting through such of its affiliates as it deems appropriate, Blackstone, and together with MUFG and the Original Commitment Parties, the Commitment Parties, we or us) and you, hereby agree that the Original Commitment Letter shall be amended and restated and thereby superseded in its entirety by this
Amended and Restated Commitment Letter (together with the exhibits and other attachments hereto, this Commitment Letter) and such Original Commitment Letter (including, without limitation, any provision thereof that is required to remain in full force and effect pursuant to Section 13 thereof) shall be of no further force or effect (it being understood and agreed that the provisions of Section 7 and Section 12 hereof shall apply with like force and effect to the Original Commitment Letter).
You have advised us that:
(a) Prairie Private Acquiror LP, a Delaware limited partnership (the Buyer or you), formed at the direction of Blackstone Infrastructure Partners L.P. (together with its affiliates, collectively, BIP), Jasmine Ventures Pte. Ltd (together with its affiliates, collectively, GIC) and Enagas Holding USA, S.L.U. (together with its affiliates, collectively, Enagas and together with BIP and GIC, collectively the Sponsors) and certain other investors designated by the Sponsors (together with the Sponsors, the Investors), intends to merge (the TGE Merger) with and into Tallgrass Energy, LP, a Delaware limited partnership (TGE and, together with its subsidiaries, collectively, the Acquired Business), with TGE surviving the TGE Merger and the holders of Class A shares of TGE (other than the Sponsors) receiving cash in exchange for their Class A shares of TGE, such that following consummation of the TGE Merger and related transactions, the parent companies of the Buyer (prior to consummation of the TGE Merger) will own, directly or indirectly, approximately 55% of the economic interests (the Subject Interests) in Tallgrass Equity, LLC (TE LLC);
(b) it is intended that, substantially concurrent with the TGE Merger, Tallgrass Energy Partners, LP, a Delaware limited partnership (TEP), which is wholly-owned by TE LLC and its subsidiaries, will (i)(x) issue an aggregate principal amount of up to $575 million in senior unsecured notes (the Senior Notes) or other debt securities in lieu thereof (the Securities) in one or more Rule 144A offerings or other private placements on or prior to the Closing Date and/or (y) obtain a senior unsecured bridge facility providing an aggregate principal amount of up to $575 million of increasing rate bridge loans (the Senior Bridge Facility) on the Closing Date having the terms set forth in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the Term Sheet) and (ii) will use a portion of the proceeds of such Senior Notes, Securities and/or Senior Bridge Facility to make a distribution on the Closing Date (the Closing Date Distribution) through one or more of its parent companies to TGE to fund a portion of the Merger Consideration (as defined in the Acquisition Agreement);
(c) you wish for Credit Suisse, Citi, Jefferies, MUFG and Blackstone to provide the Senior Bridge Facility pursuant to this Commitment Letter; and
(d) you intend to consummate the other transactions described in Exhibit A hereto (the Transaction Description).
Capitalized terms used but not defined herein have the meanings assigned to them in the Exhibits attached hereto. For purposes of this Commitment Letter, Citi means CGMI, 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. It is understood and agreed that CGMI is entering into this Commitment Letter for and on behalf of Citi.
1. | Commitments. |
In connection with the Transactions, (a) CS is pleased to advise you of its commitment to provide 23.34% of the Senior Bridge Facility, (b) Citi is pleased to advise you of its commitment to provide 23.33% of the Senior Bridge Facility, (c) Jefferies is pleased to advise you of its commitment to provide 20% of the Senior Bridge Facility, (d) MUFG is pleased to advise you of its commitment to provide 13.33% of the Senior Bridge Facility and (e) Blackstone is pleased to advise you of its commitment to provide 20% of the Senior Bridge Facility (CS, Citi, Jefferies, MUFG and Blackstone, each in such capacity together with any of its designated affiliates of similar creditworthiness in such capacity, an Initial Lender and, collectively, the Initial Lenders), in each case, upon the terms and subject to the conditions set forth or referred to in this Commitment Letter and the Exhibits attached hereto.
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2. | Titles and Roles. |
It is agreed that (a) CSLF, Citi, Jefferies and MUFG will act as joint lead arrangers (each in such capacity, together with any of its designated affiliates of similar creditworthiness, a Lead Arranger) and as joint bookrunners for the Senior Bridge Facility, (b) Blackstone will act as co-manager for the Senior Bridge Facility and (c) CS will act as administrative agent (the Administrative Agent) for the Senior Bridge Facility. It is further agreed that CSLF will appear on the top left of the cover page of any marketing materials for the Senior Bridge Facility, holding the roles and responsibilities conventionally understood to be associated with such name placement. No compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid or titles awarded (other than as set forth above), in each case, in connection with the Senior Bridge Facility unless you and the Commitment Parties shall so agree.
3. | Syndication. |
The Commitment Parties reserve the right, prior to or after the execution of the Senior Bridge Facility Documentation, to syndicate all or a portion of the Commitment Parties commitments hereunder to a group of banks, financial institutions and other institutional lenders identified by the Commitment Parties in consultation with you and reasonably acceptable to you (with such acceptance not to be unreasonably withheld, conditioned or delayed), including any relationship lenders designated by you in consultation with the Commitment Parties (together with the Initial Lenders, the Senior Bridge Facility Lenders); provided that, notwithstanding the Commitment Parties right to syndicate the Senior Bridge Facility and receive commitments with respect thereto, the Commitment Parties may not assign all or any portion of their commitments hereunder until after the Closing Date, and, unless you agree in writing, the Commitment Parties shall retain exclusive control over all rights and obligations with respect to their commitments, including all rights with respect to consents, modifications, waivers and amendments, until the Closing Date has occurred; provided, further, that, such syndication shall not relieve any Initial Lender of its obligations set forth herein (including its obligations to fund the Senior Bridge Facility on the Closing Date on the terms and conditions set forth in this Commitment Letter). Notwithstanding the foregoing, the Commitment Parties will not syndicate to those banks, financial institutions and other institutional lenders and competitors of the Acquired Business separately identified in writing by you or any of the Sponsors to the Original Commitment Parties prior to the Original Commitment Letter Date or with respect to competitors (and such competitors sponsors and affiliates identified in writing or clearly identifiable solely on the basis of their names) of the Acquired Business, separately identified in writing by you or any of the Sponsors to the Commitment Parties (or the Original Commitment Parties if prior to the date hereof) after the Original Commitment Letter Date and prior to syndication of the Senior Bridge Facility (the foregoing, in each case inclusive of any affiliates thereof that are clearly identifiable by name (other than a bona-fide debt fund), collectively, Disqualified Lenders). After the Closing Date, the list of Disqualified Lenders may be updated from time to time to include competitors (and such competitors sponsors and affiliates (in each case, other than bona-fide debt funds) identified in writing or clearly identifiable solely on the basis of their names) of the Acquired Business separately identified in writing to the Administrative Agent, it being understood that any such update to the list of Disqualified Lenders will not apply retroactively to disqualify any person that has previously acquired an assignment or participation interest in the Senior Bridge Facility. Without limiting your obligations to assist with syndication efforts as set forth below, it is understood that the Initial Lenders commitments hereunder are not subject to commencement or completion of syndication of the Senior Bridge Facility or your satisfaction of such obligations.
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The Commitment Parties intend to commence syndication efforts promptly after your acceptance of this Commitment Letter and as part of its syndication efforts, it is the Commitment Parties intent to have Senior Bridge Facility Lenders commit to the Senior Bridge Facility prior to the Closing Date. You agree to use your commercially reasonable efforts to assist the Commitment Parties in completing a timely syndication of the Senior Bridge Facility that is reasonably satisfactory to us and you until the date that is the earlier of (a) 60 days after the Closing Date and (b) the later of the Closing Date and the date on which each Initial Lender holds none of the Senior Bridge Facility (such earlier date, the Syndication Date). 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 the Sponsors, (b) your facilitating direct contact between your senior management, representatives and advisors (and your using commercially reasonable efforts to arrange for direct contact between senior management, representatives and advisors of the Sponsors and, to the extent practical and appropriate and consistent with the Acquisition Agreement, the Acquired Business) and the proposed Senior Bridge Facility Lenders at times and locations as mutually agreed upon reasonable prior notice, (c) your assistance (and your using commercially reasonable efforts to cause the Sponsors and, to the extent practical and appropriate and consistent with the Acquisition Agreement, the Acquired Business to assist) in the preparation of a customary confidential information memorandum (Confidential Information Memorandum) for the Senior Bridge Facility (which shall be in form and substance consistent with confidential information memoranda in recent transactions sponsored by BIP) and other customary marketing materials to be used in connection with the syndications, (d) using your commercially reasonable efforts to procure prior to the launch of syndication of the Senior Bridge Facility public corporate ratings (but no specific rating) for the Senior Bridge Facility Borrower and public ratings (but no specific rating) for the Senior Bridge Facility and the Senior Notes from each of Standard & Poors Ratings Services and Moodys Investors Service, Inc. and (e) the hosting, with the Commitment Parties, of one or more meetings (or, if agreed to by the Lead Arrangers, conference calls in lieu thereof) with prospective Senior Bridge Facility Lenders at times and, if applicable, locations to be mutually agreed upon. Notwithstanding anything set forth herein, you shall only be required to use commercially reasonable efforts to cause the Acquired Business to assist with the syndication efforts in respect thereof and only to the extent such assistance is consistent with the Acquisition Agreement.
During the primary syndication of the Senior Bridge Facility and on or prior to the Syndication Date, you agree to use your commercially reasonable efforts to prepare and provide (and to use commercially reasonable efforts to cause the Sponsors and, to the extent consistent with the Acquisition Agreement, the Acquired Business to provide) promptly to the Commitment Parties all available customary information with respect to you, the Acquired Business and each of your and their respective subsidiaries, the Transactions and the other transactions contemplated hereby, including all financial information and projections relating to you and the Acquired Business (including financial estimates, forecasts and other forward-looking information) (the Projections), as the Commitment Parties may reasonably request.
For the avoidance of doubt, you will not be required to provide any information to the extent the provision thereof would violate any applicable law, rule or regulation or any obligation of confidentiality binding on you, any of the Sponsors, the Acquired Business or your or their respective affiliates (provided that in the case of any confidentiality obligation, (a) you shall have used commercially reasonable efforts to obtain consent to provide such information and (b) such obligation was not entered into in contemplation of this provision; provided, further, that you shall notify us if any such information is being withheld as a result of any such applicable law, rule, regulation or obligation of confidentiality). Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter, no provision of this paragraph shall constitute a condition to the commitments hereunder or the funding of the Senior Bridge Facility on the Closing Date or any time thereafter and neither the commencement nor the completion of the syndication of the Senior Bridge Facility shall constitute a condition precedent to the Closing Date.
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During the primary syndication of the Senior Bridge Facility and until the Syndication Date, you will use commercially reasonable efforts to ensure (and use commercially reasonable efforts to cause the Sponsors to ensure) that there will not be any competing issues of debt securities or syndicated credit facilities by any Senior Bridge Facility Credit Party, in each case, without our consent (not to be unreasonably withheld, conditioned or delayed) (other than the Senior Bridge Facility, the Senior Notes, any Securities, any short term working capital facilities and capital lease, purchase money, equipment financings and any ordinary course refinancing of any indebtedness of TEP or any of its restricted subsidiaries existing on the date hereof (including the TEP Revolver, collectively, the TEP Closing Date Debt Facilities) (other than of the 2023 Notes, the 2024 Notes (as defined in the Fee Letter) or TEPs 2028 notes, which shall not be permitted without our consent (not to be unreasonably withheld, conditioned or delayed) if the refinancing thereof could reasonably be expected to materially impair the primary syndication of the Senior Bridge Facility), all other indebtedness permitted (other than indebtedness that is permitted solely with the Buyers consent) under the Acquisition Agreement and indebtedness under the TEP Revolver) (and any permitted refinancing thereof) (and, for the avoidance of doubt, any amendment or modification to any TEP Closing Date Debt Facility that does not involve the incurrence of additional indebtedness)) being offered, placed or arranged that could reasonably be expected to materially impair the primary syndication of the Senior Bridge Facility.
The Commitment Parties will, in consultation with you, manage all aspects of any syndication, including decisions as to the selection of institutions to be approached (with your consent not to be unreasonably withheld, conditioned or delayed and excluding Disqualified Lenders) and when they will be approached, when their commitments will be accepted, which institutions will participate (with your consent not to be unreasonably withheld, conditioned or delayed and excluding Disqualified Lenders), the allocation of the commitments among the Senior Bridge Facility Lenders and the amount and distribution of fees among the Senior Bridge Facility Lenders.
Notwithstanding anything to the contrary contained in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Senior Bridge Facility Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions (a) none of the obligations described in this Section 3 or Section 4 below (including, without limitation, the compliance with any of the provisions set forth above) shall constitute a condition to the commitments hereunder or the funding of the Senior Bridge Facility on the Closing Date or any time thereafter, (b) neither the commencement nor the completion of the syndication of the Senior Bridge Facility nor your satisfaction of your obligations to assist with syndication efforts as set forth in this Section 3 shall constitute a condition to the funding of the Senior Bridge Facility on the Closing Date or any time thereafter and (c) the only financial statements that shall be required to be provided to the Lead Arrangers or Initial Lenders in connection with the syndication of the Senior Bridge Facility or otherwise shall be those required to be delivered pursuant to paragraphs 8 and 9 of the Funding Conditions.
4. | Information. |
You hereby represent and warrant (with respect to the Acquired Business, to your knowledge) that (but the accuracy of which representation and warranty shall not be a condition to the commitments hereunder or the funding of the Senior Bridge Facility on the Closing Date) (a) all written information and written data (such information and data, other than (i) the Projections and (ii) information of a general economic or general industry nature, the Information) that have been or will be made available to the Commitment Parties by you, the Sponsors or any of your or their respective representatives, taken as a whole, is or will be, when furnished, correct in all material respects and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto that have been provided to
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us) and (b) the Projections that have been or will be made available to the Commitment Parties by you or by the Sponsors or any of your or their respective representatives have been or will be prepared in good faith based upon assumptions that are believed by you to be reasonable at the time made and furnished; it being understood that any such financial projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results may differ significantly from the projected results and that such differences may be material. You agree that, if at any time prior to the Syndication Date, you become aware that any of the representations in the preceding sentence would be incorrect in any material respect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly use commercially reasonable efforts to supplement the Information and the Projections so that such representations will be correct in all material respects (with respect to the Acquired Business, to your knowledge) under those circumstances. In arranging and syndicating the Senior Bridge Facility, the Commitment Parties will be entitled to use and rely on the Information and the Projections without responsibility for independent verification thereof. We will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of you, the Acquired Business or any other party or to advise or opine on any related solvency issues.
You hereby acknowledge that (a) the Commitment Parties will make available Information, Projections and other offering and marketing material and presentations, including confidential information memoranda to be used in connection with the syndication of the Senior Bridge Facility to the proposed syndicate of Senior Bridge Facility Lenders, by posting the Information and Projections on Debtdomain (the Platform) and (b) certain of the Senior Bridge Facility Lenders may be public side lenders (i.e., Senior Bridge Facility Lenders that do not wish to receive material non-public information with respect to you, the Acquired Business, your or its respective subsidiaries or the respective securities of any of the foregoing) (each, a Public Lender). At the reasonable request of the Commitment Parties, you agree to assist us in preparing an additional version of the Confidential Information Memorandum to be used by Public Lenders. The information to be included in the additional version of the Confidential Information Memorandum will consist exclusively of information and documentation that is either publicly available, not material with respect to you and your subsidiaries, the Acquired Business, their subsidiaries, or your and their respective securities for purposes of United States federal and state securities laws or of the type that would be publicly available if you, your subsidiaries, the Acquired Business or any of its respective subsidiaries, were a public reporting company (as reasonably determined by you). It is understood that in connection with your assistance described above, (a) a customary authorization letter executed by you will be included in each such Confidential Information Memorandum that authorizes the distribution of such Confidential Information Memorandum to prospective Senior Bridge Facility Lenders, contains customary representations confirming that the public side version does not include material non-public information about you, the Acquired Business, your or their respective subsidiaries or your and their respective securities, and exculpate us, you, the Sponsors, the Acquired Business and our, your and their respective affiliates with respect to any liability related to the use or misuse of the contents of such Confidential Information Memorandum or any related marketing material by recipients thereof; (b) the public lender information shall include the following information except to the extent you notify us to the contrary, provided that you shall have been given a reasonable opportunity to review such documents and comply with the U.S. Securities and Exchange Commission disclosure requirements (and such public information is permitted to be made available to all prospective Senior Bridge Facility Lenders, including through a Platform designated Public Lenders): (i) drafts and final definitive documentation with respect to the Senior Bridge Facility, including term sheets, (ii) administrative materials prepared by the Commitment Parties for prospective Senior Bridge Facility Lenders (such as a lender meeting or call invitation, allocations and funding and closing memoranda) and (iii) notification of changes in the terms of the Senior Bridge Facility; (c) at our reasonable request, you shall identify information to be distributed to Public Lenders by clearly and conspicuously marking the same as PUBLIC, it being understood that you shall not otherwise be under any obligation to mark Information as PUBLIC; and (d) we shall be entitled to treat any Information and Projections that are not specifically identified as PUBLIC as being suitable only for posting on a portion of the Platform not designated for Public Lenders.
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5. | Fees. |
As consideration for the commitment of the Initial Lenders hereunder and the Commitment Parties agreement to perform the services described herein, you agree to pay the fees set forth in the Amended and Restated Fee Letter dated the date hereof and delivered herewith with respect to the Senior Bridge Facility (as amended, amended and restated, supplemented or otherwise modified from time to time, the Fee Letter). Once paid, such fees shall not be refundable under any circumstances, except as otherwise contemplated by the Fee Letter.
6. | Conditions Precedent. |
The commitments of the Initial Lenders hereunder are subject only to the conditions expressly set forth in Exhibit C hereto (the Funding Conditions); it being understood that there are no conditions (implied or otherwise) to the commitments hereunder for the Senior Bridge Facility (including compliance with the terms of this Commitment Letter, the Fee Letter and the Senior Bridge Facility Documentation) other than the Funding Conditions (and upon satisfaction or waiver of the Funding Conditions, the funding under the Senior Bridge Facility shall occur).
Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letter, the Senior Bridge Facility Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions, (a) the only representations and warranties the accuracy of which shall be a condition to availability of the Senior Bridge Facility to be funded on the Closing Date shall be (i) such of the representations and warranties made by the Acquired Business in the Acquisition Agreement as are material to the interests of the Senior Bridge Facility Lenders, but only to the extent that you (or your applicable affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or such affiliates) obligations under the Acquisition Agreement to consummate the TGE Merger, or to decline to consummate the TGE Merger (in accordance with the terms thereof), as a result of a breach of such representations and warranties (to such extent, the Acquisition Agreement Representations) and (ii) the Specified Representations made by the Senior Bridge Facility Credit Parties in the Senior Bridge Facility Documentation and (b) the terms of the Senior Bridge Facility Documentation and the Closing Deliverables shall be in a form such that they do not impair the availability of the Senior Bridge Facility to be funded on the Closing Date if the Funding Conditions are satisfied (or waived). For purposes hereof, Specified Representations means the representations and warranties of the Senior Bridge Facility Credit Parties set forth in the Senior Bridge Facility Documentation relating to corporate or other organizational existence, organizational power and authority (as to execution, delivery and performance of the Senior Bridge Facility Documentation), the due authorization, execution and delivery of the Senior Bridge Facility Documentation (in each case, by or of each Senior Bridge Facility Credit Party), enforceability of the Senior Bridge Facility Documentation against the Senior Bridge Facility Credit Parties, Federal Reserve margin regulations, the Investment Company Act, no conflicts of the Senior Bridge Facility Documentation (limited to the execution, delivery and performance of the Senior Bridge Facility Documentation, incurrence of indebtedness thereunder and the granting of the guarantees in respect thereof) with charter documents of such Senior Bridge Facility Credit Party, solvency as of the Closing Date of the Senior Bridge Facility Borrower and its subsidiaries on a consolidated basis (after giving effect to the Transactions) (to be determined in a manner consistent with the solvency certificate to be delivered in the form set forth in Annex I attached to Exhibit C hereto), Patriot Act and use of the proceeds of the Senior Bridge Facility not violating OFAC or FCPA. This paragraph shall be referred to herein as the Limited Conditionality Provision.
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7. | Indemnification; Expenses. |
You agree (a) to indemnify and hold harmless each Commitment Party and each of its affiliates and controlling persons and the respective officers, directors, employees, successors, partners, agents, advisors and representatives of each of the foregoing (each, an Indemnified Person) from and against any and all actions, suits, investigations, inquiries, proceedings, losses, claims, damages, liabilities and out-of-pocket expenses, joint or several, to which any such Indemnified Person may become subject arising out of, resulting from or in connection with this Commitment Letter, the Fee Letter, the Transactions or the Senior Bridge Facility, the use or intended use of the proceeds of the Senior Bridge Facility, or any claim, litigation, investigation or proceeding (any of the foregoing, an Action) relating to any of the foregoing and regardless of whether brought by you or any of your affiliates or any other person or against any person, including the Acquired Business, its respective security holders and their respective other affiliates, regardless of whether any such Indemnified Person is a party thereto, and to reimburse each such Indemnified Person within 30 days after receipt of a written request together with reasonably detailed backup documentation for any reasonable legal expenses (limited to one counsel for all Indemnified Persons, taken as a whole, and, if reasonably necessary, a single local counsel to all Indemnified Persons, taken as a whole, in each relevant material jurisdiction and, solely in the case of an actual or perceived conflict of interest, one additional counsel in each applicable material jurisdiction to the affected Indemnified Persons similarly situated taken as a whole) or other reasonable and documented out-of-pocket expenses incurred in connection with investigating 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 (i) to the extent resulting from the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, successors, agents, advisors or representatives of any of the foregoing, (ii) to the extent arising from a material breach of the obligations of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, successors, agents, advisors or representatives of any of the foregoing under this Commitment Letter, the Fee Letter or the Senior Bridge Facility Documentation (in the case of each of preceding clauses (i) and (ii), as determined by a court of competent jurisdiction in a final and non-appealable judgment) or (iii) to the extent arising from any dispute solely among Indemnified Persons other than claims against the Commitment Party in its capacity or in fulfilling its role as an Administrative Agent or arranger or any similar role under the Senior Bridge Facility and other than any claims arising out of any act or omission on the part of you or your affiliates, and (b) to reimburse each Commitment Party and each Indemnified Person from time to time, upon presentation of a summary statement, together with any supporting documentation reasonably requested by you, for all reasonable and documented out-of-pocket expenses (including but not limited to out-of-pocket expenses of such Commitment Partys due diligence investigation, syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel to such Commitment Party identified in the Term Sheet, and, if necessary, of a single local counsel to such Commitment Party in each relevant material jurisdiction), in each case incurred in connection with the Senior Bridge Facility and the preparation of this Commitment Letter, the Fee Letter and the Senior Bridge Facility Documentation (collectively, the Expenses); provided that you shall not be required to reimburse any of the Expenses in the event the Closing Date does not occur. Notwithstanding any other provision of this Commitment Letter, (a) no Indemnified Person shall be liable for any damages arising from the use or misuse by others of information or other materials obtained through electronic, telecommunications or other information transmission systems, except to the extent such damages have resulted from (in each case as finally determined by a court of competent jurisdiction in a final and non-appealable judgment) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, agents, advisors or representatives of any of the foregoing and (b) neither (i) any Indemnified Person, nor (ii) you, the Investors (nor any of your or their respective subsidiaries or affiliates) or the Acquired Business (or any of their respective subsidiaries or affiliates) shall be liable for any indirect, special, punitive or consequential damages (in the case of clause (ii), other than
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in respect of any such damages required to be indemnified under this Section 7) in connection with this Commitment Letter, the Senior Bridge Facility, the Transactions (including the Senior Bridge Facility and the use of proceeds thereunder), or with respect to any activities related to the Senior Bridge Facility. You shall not be liable for any settlement, compromise or consent to the entry of any judgment in any Action effected without your prior 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 judgment in any such Action, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and expenses by reason of such settlement or judgment in accordance with, and to the extent required by, this Section 7. You shall not, without the prior written consent of the affected Indemnified Person (which consent shall not be unreasonably withheld, delayed or conditioned), effect any settlement of any pending or threatened Action against such Indemnified Person in respect of which indemnity has been sought hereunder by such Indemnified Person unless such settlement (a) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person (which approval shall not be unreasonably withheld, delayed or conditioned) from all liability or claims that are the subject matter of such Action and (b) does not include any statement as to any admission of fault. Notwithstanding the foregoing, each Indemnified Person shall be obligated to refund and return promptly any and all amounts paid by you or any of your affiliates under this Section 7 to such Indemnified Persons for any loss, claim, expense, damage or liability with respect to which such Indemnified Person was not entitled to payment in accordance with the terms hereof.
8. | Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities. |
You acknowledge that each Commitment Party and its affiliates may be providing debt financing, equity capital or other services (including, without limitation, investment banking and financial advisory services, securities trading, hedging, financing and brokerage activities and financial planning and benefits counseling) to other companies in respect of which you may have conflicting interests. We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies (except as contemplated in Section 12 below). You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us or any of our respective affiliates from other companies.
You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and any Commitment Party is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether such Commitment Party has advised or is advising you on other matters, (b) each Commitment Party, on the one hand, and you, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of such Commitment Party and you waive, to the fullest extent permitted by law, and agree not to assert any claims you may have against us for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the Transactions and agree that we will have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on your behalf, including equity holders, employees or creditors, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter and you have consulted with your own legal and financial advisors to the extent you have deemed appropriate and (d) you have been advised that each Commitment Party and its affiliates are engaged in a broad range of transactions that may involve interests that differ from your interests and that such Commitment Party has no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship. In addition, each Commitment Party may employ the services of its affiliates in providing certain services hereunder and may exchange with such affiliates information concerning you and the Acquired Business and other companies in the industry of the Acquired Business, and such affiliates shall be entitled to the benefits afforded to, and subject to the obligations of, such Commitment Party hereunder, but such Commitment Party shall not be relieved from its obligations under this Commitment Letter. You acknowledge and agree that neither we nor our affiliates have provided you with legal, tax or accounting advice and that you have obtained such independent advice from your own advisors.
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You further acknowledge that each Commitment Party and its affiliates are full service securities firms engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, each Commitment Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Acquired Business and your and their respective subsidiaries and other companies with which you, the Sponsors or the Acquired Business or your or their respective subsidiaries may have commercial or other relationships. With respect to any securities and/or financial instruments so held by each Commitment Party, its affiliates or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.
In addition, you acknowledge that you have retained CS and Citi as financial advisors in connection with the TGE Merger (in such capacity, each a Financial Advisor). You agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of any such Financial Advisor and, on the other hand, our and our affiliates relationships with you as described and referred to herein.
9. | Assignments; Amendments; Governing Law, Etc. |
This Commitment Letter, the Fee Letter and the commitments hereunder (a) shall not be assignable by any party hereto (except by you to the Senior Bridge Facility Borrower or a Senior Bridge Facility Credit Party) without the prior written consent of each other party hereto (and any attempted assignment without such consent shall be null and void), (b) are intended to be solely for the benefit of the parties hereto and their respective permitted successors and assigns (and Indemnified Persons), (c) are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and their respective permitted successors and assigns (and Indemnified Persons) and (d) are not intended to create a fiduciary relationship among the parties hereto. Subject to the limitations set forth in Section 3, any and all services to be provided by the Commitment Parties hereunder may be performed by or through any of their respective affiliates or branches and the provisions of Section 7 shall apply with equal force and effect to any such entities so performing any such duties or activities, but no Commitment Party shall be relieved of its obligations under this Commitment Letter. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or by .pdf or similar electronic transmission shall be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that information and documents relating to the Senior Bridge Facility may be transmitted through Debtdomain or similar electronic means, the internet or e-mail, and, notwithstanding anything herein to the contrary, that no Commitment Party shall be liable for any damages arising from the use or misuse by others of information or documents transmitted in such manner unless resulting from the gross negligence, bad faith or willful misconduct, as determined by a court of competent jurisdiction in a final and non-appealable judgment, of such Commitment Party or any of its affiliates or controlling persons or any of the officers, directors, employees, partners, agents, representatives, successors or assigns of any of
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the foregoing. This Commitment Letter, together with the Fee Letter, supersedes all prior understandings, whether written or oral, among us with respect to the Senior Bridge Facility and sets forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER AND ANY CLAIM, CONTROVERSY OR DISPUTE (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING UNDER OR RELATED TO THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; provided, however, that (a) the interpretation of the definition of Partnership Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date, and as amended prior to the date hereof in accordance with the Original Commitment Letter and hereafter in accordance herewith) and whether there shall have occurred a Partnership Material Adverse Effect, (b) whether the TGE Merger has been consummated as contemplated by the Acquisition Agreement and (c) whether the representations and warranties made by the Acquired Business are accurate and whether as a result of any inaccuracy thereof you have the right to terminate your obligations under the Acquisition Agreement, or to decline to consummate the TGE Merger (in accordance with the terms thereof), shall, in each case, be governed by and construed in accordance with the laws of the jurisdiction specified in the Acquisition Agreement, excluding any conflicts of law, rule or principle that might refer construction of provisions to the laws of another jurisdiction.
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 the good faith negotiation of the Senior Bridge Facility Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being understood and agreed that (i) the commitments provided hereunder by the Commitment Parties and the funding of the Senior Bridge Facility on the Closing Date are subject only to the Funding Conditions and (ii) this Commitment Letter and the Fee Letter are subject in all respects to the Amended and Restated Side Letter, dated the date hereof, among us and you.
10. | WAIVER OF JURY TRIAL. |
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
11. | Jurisdiction. |
Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any state or federal court of the United States of America, in each case sitting in the Borough of Manhattan in New York, and the respective appellate courts thereof, as to any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee 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, and further agrees to not commence any such suit, action or proceeding other than in such New York State court or, to the extent permitted by law, in such Federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any court in which such venue may be laid in accordance with clause (a) of this sentence, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (d) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail or overnight courier addressed to any of the parties hereto at the addresses set forth above shall be effective service of process against such party for any suit, action or proceeding brought in any such court.
11
12. | Confidentiality. |
This Commitment Letter is delivered to you on the understanding that none of the Fee Letter, or, prior to the date hereof, this Commitment Letter or their terms or substance shall be disclosed, directly or indirectly, by you to any other person or entity (including other lenders, underwriters, placement agents, advisors or any similar persons) except (a) to the Investors and to your and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, agents and advisors (collectively, Representatives) who need to know such information in connection with the Transactions and on a confidential basis, (b) if the Commitment Parties consent to such proposed disclosure, (c) you may disclose the Transaction Description, the Term Sheet and the Funding Conditions and the existence of this Commitment Letter to any rating agency in connection with the Transactions or (d) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or regulation or as requested by a governmental authority (in which case you agree to inform us promptly thereof to the extent lawfully permitted to do so); provided that (w) you may disclose the existence of the Fee Letter and the fees contained therein as part of generic disclosure regarding fees and expenses in connection with any syndication of the Senior Bridge Facility without disclosing any specific fees set forth therein, or on a redacted basis in a manner reasonably acceptable to the Commitment Parties or for customary accounting purposes, including accounting for deferred financing costs, (x) you may disclose this Commitment Letter and, to the extent portions thereof are redacted in a manner to be mutually agreed upon, the Fee Letter to the Acquired Business and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, agents and advisors who need to know such information in connection with the Transactions on a confidential basis; and (y) you may disclose this Commitment Letter and the contents hereof (but not the Fee Letter and the contents thereof) in any syndication of the Senior Bridge Facility. Your obligations under this paragraph with regard to this Commitment Letter (but not the Fee Letter) shall terminate on the earlier of (i) the second anniversary of the Original Commitment Letter Date and (ii) one year following the termination of this Commitment Letter in accordance with its terms.
Each Commitment Party and its affiliates will use all confidential information provided to them or their affiliates by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and shall treat confidentially all such information; provided that nothing herein shall prevent such Commitment Party from disclosing any such information (a) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law or regulation or as requested by a governmental authority (in which case such Commitment Party, to the extent permitted by law, agrees (except with respect to any audit or examination conducted by bank accountants or regulatory authority exercising examination or regulatory authority) to inform you promptly thereof), (b) upon the request or demand of any regulatory authority having 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 regulatory authority exercising examination or regulatory authority) to inform you promptly thereof prior to such disclosure to the extent practicable, unless such Commitment Party is prohibited by applicable law from so informing you, or except in connection with any request as part of a regulatory examination), (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 affiliates in violation of this Commitment Letter, (d) to the extent that such information was already in our possession prior to any duty or other undertaking of confidentiality or is received by such Commitment Party from a third party that is not to such Commitment Partys knowledge subject to confidentiality obligations to you, the Acquired Business, the Sponsors or any of your and their respective affiliates, (e) to the extent that such information is independently developed by such
12
Commitment Party or any of its affiliates so long as not based on information obtained in a manner that would otherwise violate this provision, (f) to such Commitment Partys affiliates and their Representatives who need to know such information in connection with the Transactions and are informed of the confidential nature of such information (provided that such Commitment Party shall be responsible for its affiliates and Representatives compliance with this paragraph), (g) to prospective Senior Bridge Facility Lenders, participants or assignees or any potential counterparty (or its advisors) to any swap or derivative transaction relating to the Senior Bridge Facility Borrower or any of its subsidiaries or any of their respective obligations, in each case who agree to be bound by the terms of this paragraph (or language substantially similar to this paragraph), (h) for purposes of establishing a due diligence defense, (i) to ratings agencies in connection with the Transactions or (j) to market data collectors and other service providers; provided that (x) the disclosure of any such information to any Senior Bridge Facility Lenders or prospective Senior Bridge Facility Lenders or participants or assignees or prospective participants or assignees referred to above shall be made subject to the acknowledgement and acceptance by such Senior Bridge Facility Lender or prospective Senior Bridge Facility Lender or assignee or participant or prospective assignee or participant 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 the Commitment Parties, including, without limitation, as agreed in any marketing materials for the Senior Bridge Facility) in accordance with the standard syndication processes of the Commitment Parties or customary market standards for dissemination of such type of information and (y) no disclosure shall be made by any Commitment Party to any Disqualified Lender. Each Commitment Partys obligations under this paragraph shall terminate on the earlier of (i) the second anniversary of the Original Commitment Letter Date and (ii) one year following the termination of this Commitment Letter in accordance with its terms and shall otherwise automatically terminate and be superseded by the confidentiality provisions in the Senior Bridge Facility Documentation upon the execution and delivery thereof.
Notwithstanding anything to the contrary contained herein, nothing in this Commitment Letter precludes the Commitment Parties, you, the Sponsors, the Acquired Business or our, your or their respective affiliates from using or disclosing any confidential information in connection with any suit, action or proceeding for the purpose of protecting or exercising any of our, your or their, as applicable, rights, remedies or interests hereunder or under the Fee Letter.
13. | Surviving Provisions. |
This Section 13 and the indemnification, compensation (if applicable), confidentiality, syndication (if applicable), jurisdiction, venue, governing law, waiver of jury trial and fiduciary duty provisions contained herein and in the Fee Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the Initial Lenders commitments hereunder and the Commitment Parties agreement to provide the services described herein; provided that your obligations under this Commitment Letter, other than those relating to confidentiality and to the syndication of the Senior Bridge Facility (if the Senior Bridge Facility has been funded) and your obligations under the second sentence of Section 4 (if the Senior Bridge Facility has been funded), shall automatically terminate and be superseded by the definitive documentation relating to the Senior Bridge Facility upon the initial funding on the Closing Date under the Senior Bridge Facility, and you shall be released from all liability in connection therewith at such time.
14. | Patriot Act Notification. |
We hereby notify you that, pursuant to the requirements of the USA PATRIOT Improvement and Reauthorization Act, Pub. L. 109-177 (signed into law March 9, 2006) (the Patriot Act) and the requirements of 31 C.F.R. § 1010.230 (the Beneficial Ownership Regulation), each Commitment Party and each Senior Bridge Facility Lender is required to obtain, verify and record information that identifies
13
the Senior Bridge Facility Credit Parties, which information includes the name, address, tax identification number and other information regarding the Senior Bridge Facility Credit Parties that will allow such Commitment Party or such Senior Bridge Facility Lender to identify the Senior Bridge Facility Credit Parties, in accordance with the Patriot Act and Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the Patriot Act and the Beneficial Ownership Regulation, as applicable, and is effective as to each Commitment Party and each Senior Bridge Facility Lender. You hereby acknowledge and agree that the Commitment Parties shall be permitted to share any or all such information with the Senior Bridge Facility Lenders.
15. | Acceptance and Termination. |
This Commitment Letter and the Fee Letter shall become effective upon execution and delivery by all parties hereto and thereto. 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 executed counterparts of this Commitment Letter and of the Fee Letter not later than 11:59 p.m., New York City time, on January 27, 2020. The Commitment Parties commitments hereunder and agreements contained herein will expire at such time in the event that the Commitment Parties have not received such executed counterparts in accordance with the immediately preceding sentence. In the event that (a) the initial borrowing in respect of the Senior Bridge Facility does not occur on or before 11:59 p.m., New York City time on July 23, 2020 (the End Date) or (b) the Acquisition Agreement is validly terminated prior to the consummation of the TGE Merger, then this Commitment Letter and the commitments and undertakings of the Commitment Parties hereunder shall automatically terminate. Notwithstanding anything in this paragraph to the contrary, (x) you may elect to terminate the commitments with respect to the Senior Bridge Facility, in whole or in part, at any time, (y) if the TGE Merger is consummated without funding of the Senior Bridge Facility, the commitments and undertakings of the Commitment Parties and Buyer hereunder shall automatically terminate, and (z) the termination of any commitment pursuant to this paragraph does not prejudice our or your rights and remedies in respect of any breach of this Commitment Letter.
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We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.
[signature pages follow]
Very truly yours, | ||
CREDIT SUISSE LOAN FUNDING LLC | ||
By: | /s/ Max Lipkind | |
Name: | Max Lipkind | |
Title: | Managing Director | |
CREDIT SUISSE AG | ||
By: | /s/ Nupur Kumar | |
Name: | Nupur Kumar | |
Title: | Authorized Signatory | |
By: | /s/ Brady Bingham | |
Name: | Brady Bingham | |
Title: | Authorized Signatory | |
CITIGROUP GLOBAL MARKETS INC. | ||
By: | /s/ Mohammed Baabde | |
Name: | Mohammed Baabde | |
Title: | Managing Director | |
JEFFERIES FINANCE LLC | ||
By: | /s/ John Koehler | |
Name: | John Koehler | |
Title: | Managing Director | |
MUFG BANK, LTD. | ||
By: | /s/ Grant Moyer | |
Name: | Grant Moyer | |
Title: | MD | |
BLACKSTONE HOLDINGS FINANCE CO. L.L.C. | ||
By: | /s/ Matthew Skurbe | |
Name: | Matthew Skurbe | |
Title: | Managing Director and Treasurer |
[SIGNATURE PAGE TO COMMITMENT LETTER]
Accepted and agreed to as of
the date first above written:
PRAIRIE PRIVATE ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner | ||
By: | /s/ Wallace C. Henderson | |
Name: | Wallace C. Henderson | |
Title: | Senior Managing Director |
[SIGNATURE PAGE TO COMMITMENT LETTER]
CONFIDENTIAL
EXHIBIT A
Project Prairie II
Transaction Description1
It is intended that:
(a) Buyer will consummate the TGE Merger pursuant to that certain Agreement and Plan of Merger, dated as of the Original Commitment Letter Date (including all schedules and exhibits thereto and as may be amended, supplemented or otherwise modified and in effect from time to time, the Acquisition Agreement) by and among the Buyer, Prairie Merger Sub LLC, a Delaware limited liability company, TGE and Tallgrass Energy GP, LLC, a Delaware limited liability company, and upon consummation of the TGE Merger the holders of Class A shares of TGE (other than the Sponsors) will receive cash in exchange for their Class A shares of TGE, such that immediately following consummation of the TGE Merger and such exchange of shares, the parent companies of the Buyer (prior to consummation of the TGE Merger) will own, directly or indirectly, approximately 55% of the economic interests in TE LLC; provided after giving effect to the TGE Merger, the Sponsors shall own at least 50.1% of the direct or indirect voting and economic interests of TGE; and
(b) Substantially concurrent with the Merger, TEP will (i)(x) issue an aggregate principal amount of up to $575 million in Senior Notes or Securities in one or more Rule 144A offerings or other private placements on or prior to the Closing Date and/or (y) obtain the Senior Bridge Facility on the Closing Date in an aggregate principal amount of up to $575 million on the Closing Date having the terms set forth in the Term Sheet minus the amount of gross proceeds from Senior Notes or Securities issued on or before the Closing Date intended to fund the Closing Date Distribution and (ii) will use the proceeds of such Senior Notes, Securities and/or Senior Bridge Facility (x) to make the Closing Date Distribution to TGE to fund a portion of the Merger Consideration (as defined in the Acquisition Agreement) and (y) to pay costs, fees and expenses incurred in connection with the Senior Bridge Facility and the other Transactions (such fees and expenses, collectively, the Transaction Costs).
The transactions described above, together with the transactions related thereto, are collectively referred to herein as the Transactions. For purposes of this Commitment Letter, Closing Date shall mean the date on which the conditions set forth in this Commitment Letter to the initial funding under the Senior Bridge Facility have been satisfied or waived.
1 | All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Transaction Description is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Transaction Description shall be determined by reference to the context in which it is used. |
A-1
CONFIDENTIAL
EXHIBIT B
Project Prairie II
Senior Unsecured Increasing Rate Bridge Loans
Summary of Principal Terms and Conditions2
Borrower: | Tallgrass Energy Partners, LP, a Delaware limited partnership (in such capacity, the Senior Bridge Facility Borrower). | |
Administrative Agent: | CS will act as sole and exclusive administrative agent (in such capacity, the Administrative Agent, collectively with any other agents party to the Senior Bridge Facility Documentation, the Senior Bridge Facility Agents) for a syndicate of banks, financial institutions and institutional lenders reasonably acceptable to you and excluding any Disqualified Lender (together with the Initial Lenders, the Senior Bridge Facility Lenders), and will perform the duties customarily associated with such roles. | |
Joint Bookrunners, Lead | ||
Arrangers and Co-Manager: | CSLF, Citi, Jefferies and MUFG will act as joint lead arrangers for the Senior Bridge Facility (each in such capacity, together with any of its designated affiliates of similar creditworthiness, a Lead Arranger) and as joint bookrunners for the Senior Bridge Facility and will perform the duties customarily associated with such roles. Blackstone will act as co-manager for the Senior Bridge Facility (in such capacity, together with any of its designated affiliates of similar creditworthiness, the Co-Manager). | |
Senior Bridge Loans: | Senior unsecured increasing rate bridge loans (the Senior Bridge Loans). | |
Use of Proceeds: | The proceeds of the Senior Bridge Loans will be used by the Senior Bridge Facility Borrower on the Closing Date (i) to fund the Closing Date Distribution and (ii) to pay Transaction Costs. | |
Principal Amount: | $575 million of Senior Bridge Loans minus the amount of gross proceeds from Senior Notes and/or Securities issued on or before the Closing Date intended to fund the Closing Date Distribution. | |
Guarantees: | Consistent with the Senior Bridge Facility Documentation Principles. The guarantors under the Senior Bridge Facility are referred to herein as the Senior Bridge Facility Guarantors; and together with the Senior Bridge Facility Borrower, collectively, the Senior Bridge Facility Credit Parties. |
2 | All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Term Sheet is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit shall be determined by reference to the context in which it is used. |
B-1
CONFIDENTIAL | ||||
EXHIBIT B |
Ranking: | The Senior Bridge Loans will constitute senior unsecured indebtedness of the Senior Bridge Facility Borrower. | |
Security: | None. | |
Interest Rates: | Interest for the first three-month period commencing on the Closing Date shall be payable in respect of Senior Bridge Loans at (a) Adjusted LIBOR (as defined below) plus (b) 425 basis points. Thereafter, interest on the Senior Bridge Loans shall increase by an additional 50 basis points at the beginning of each three-month period subsequent to the initial three-month period, increasing to a maximum equal to the Total Cap (as defined in the Fee Letter). | |
Adjusted LIBOR is the London interbank offered rate for U.S. dollars, adjusted for customary Eurodollar reserve requirements, if any, and subject to a floor of zero percent (0%) per annum. | ||
Notwithstanding anything to the contrary set forth above, at no time shall the per annum yield on the Senior Bridge Loans exceed the Total Cap. | ||
Interest Payments: | Interest on the Senior Bridge Loans will be payable in cash, quarterly in arrears. | |
Default Rate: | The applicable interest rate plus 2.00% on overdue amounts. | |
Notwithstanding anything to the contrary set forth herein, in no event shall any cap or limit on the yield or interest rate payable with respect to the Senior Bridge Loans, Senior Unsecured Term Loans or Senior Exchange Notes affect the payment of any default rate of interest in respect of any Senior Bridge Loans, Senior Unsecured Term Loans or Senior Exchange Notes. | ||
Maturity: | The Senior Bridge Loans will mature on the first anniversary of the Closing Date (the Maturity Date). On the Maturity Date, any Senior Bridge Loan that has not been previously repaid in full will be automatically converted into a senior unsecured term loan (a Senior Unsecured Term Loan) that is due on the date that is 5 1⁄2 years after the Closing Date. The date on which Senior Bridge Loans are converted into Senior Unsecured Term Loans is referred to as the Senior Conversion Date. On the Senior Conversion Date, and on the 15th calendar day of each month thereafter (or the immediately succeeding business day if such calendar day is not a business day), at the option of the applicable Senior |
B-2
CONFIDENTIAL | ||||
EXHIBIT B |
Bridge Facility Lender, Senior Unsecured Term Loans may be exchanged in whole or in part for senior unsecured exchange notes (the Senior Exchange Notes) having an equal principal amount; provided, that no Senior Exchange Notes shall be issued until the Senior Bridge Facility Borrower shall have received requests to issue at least $200 million in aggregate principal amount of Senior Exchange Notes. | ||
The Senior Unsecured Term Loans will be governed by the provisions of the Senior Bridge Loan Documents and will have the same terms as the Senior Bridge Loans except as expressly set forth on Annex I hereto. The Senior Exchange Notes will be issued pursuant to an indenture that will have the terms set forth on Annex II hereto. The Senior Bridge Loans, the Senior Unsecured Term Loans and the Senior Exchange Notes shall be pari passu for all purposes. | ||
Mandatory Prepayment: | The Senior Bridge Loans shall be prepaid at 100% of the outstanding principal amount thereof with, subject to exceptions and baskets consistent with the Senior Bridge Facility Documentation Principles, the net proceeds from any non-ordinary course asset sales by the Senior Bridge Facility Borrower or any of its restricted subsidiaries in excess of amounts reinvested in the business of the Senior Bridge Facility Borrower and its restricted subsidiaries within 365 days and, if so committed to reinvestment during such 365 day period, reinvested no later than 180 days after the end of such 365 day period, or which are applied to the permanent repayment of (i) the TEP Revolver or certain other secured debt or (ii) any debt of the Senior Bridge Facility Borrower or any restricted subsidiary thereof that is pari passu with the Senior Bridge Facility on a pro rata basis. The Senior Bridge Facility Borrower will also be required to prepay the Senior Bridge Loans following the occurrence of a change of control (to be defined in a manner consistent with the Senior Bridge Facility Documentation Principles (as defined below)) at 100% of the outstanding principal amount thereof. In the event any Senior Bridge Facility Lender or affiliate of a Senior Bridge Facility Lender purchases debt securities from the Senior Bridge Facility Borrower pursuant to a permitted securities demand at a price above the level at which such Senior Bridge Facility Lender or affiliate has reasonably determined such debt securities can be resold by such Senior Bridge Facility Lender or affiliate to a bona fide third party at the time of such purchase (and notifies the Senior Bridge Facility Borrower thereof), the net cash proceeds received by the Senior Bridge Facility Borrower in respect of such debt securities may, at the option of such Senior Bridge Facility Lender or affiliate, be applied first to prepay the Senior Bridge Loans of such Senior Bridge Facility Lender or affiliate prior to being applied to prepay the Senior Bridge Loans held by other Senior Bridge Facility Lenders. These mandatory prepayment provisions will not apply to the Senior Unsecured Term Loans. |
B-3
CONFIDENTIAL | ||||
EXHIBIT B |
Optional Prepayment: | The Senior Bridge Loans may be prepaid, in whole or in part, at par plus accrued and unpaid interest upon not less than three business days prior written notice, at the option of the Senior Bridge Facility Borrower at any time. | |
Right to Resell Senior | ||
Bridge Loans: | Each Senior Bridge Facility Lender shall have the absolute and unconditional right to resell or assign the Senior Bridge Loans held by it in compliance with applicable law to any third party (other than to any Disqualified Lender, which Disqualified Lenders shall be specified on a schedule that is held with the Administrative Agent, which shall be made available to a Senior Bridge Facility Lender upon request, subject to customary confidentiality requirements; provided that any update to the list of Disqualified Lenders will not apply retroactively to disqualify any person that has previously acquired an assignment or participation interest in the Senior Bridge Facility) at any time, in consultation with (but without the consent of) the Senior Bridge Facility Borrower and with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed); provided, that, for the twelve month period commencing on the Closing Date, the consent of the Senior Bridge Facility Borrower shall be required with respect to any assignment that would result in the Initial Lenders holding less than 50.1% of the aggregate outstanding principal amount of the Senior Bridge Loans; provided, that no such consent of the Senior Bridge Facility Borrower shall be required after the occurrence and during the continuance of a payment or bankruptcy (with respect to the Senior Bridge Facility Borrower) event of default or after the occurrence and continuance of a Demand Failure Event (as defined in the Fee Letter). | |
The Senior Bridge Facility Lenders will be permitted to sell participations in the Senior Bridge Loans without restriction (other than to any Disqualified Lender, which Disqualified Lenders shall be specified on a schedule that is held with the Administrative Agent, which shall be made available to a Senior Bridge Facility Lender upon request, subject to customary confidentiality requirements). Voting rights of participants shall be limited to matters in respect of (a) reductions of principal, interest or fees of the commitments participated to such participants, (b) extensions of final maturity of the Senior Bridge Loans, (c) releases of all or substantially all of the value of the guarantees provided by the guarantors and (d) changes in voting thresholds, in each case, to the extent the participant is directly adversely affected thereby. |
B-4
CONFIDENTIAL | ||||
EXHIBIT B |
Senior Bridge Facility Documentation: | The definitive documentation for the Senior Bridge Facility (the Senior Bridge Facility Documentation) shall: | |
(a) be negotiated in good faith to finalize the Senior Bridge Facility Documentation, giving effect to the Limited Conditionality Provision, and be consistent with the Indenture, dated as of September 26, 2018, among TEP, as issuer, Tallgrass Energy Finance Corp., a Delaware corporation, the guarantors party thereto and U.S. Bank National Association, as trustee (as amended, amended and restated, supplemented or otherwise modified from time to time, the 2023 Notes) and contain administrative agency, operational and other miscellaneous related administration provisions customary for the Administrative Agent and reasonably acceptable to the Senior Bridge Facility Borrower; | ||
(b) contain only those payments, conditions to borrowing, mandatory prepayments, representations, warranties, covenants and events of default and other terms and conditions expressly set forth in this Term Sheet (and, in any case, shall be no less favorable to the Senior Bridge Facility Borrower and its subsidiaries than the corresponding provisions set forth in the 2023 Notes unless otherwise expressly set forth herein); and | ||
(c) reflect the operational and strategic requirements of the Senior Bridge Facility Borrower and the Senior Bridge Facility Guarantors in light of their capital structure, size, industries, operations, practices and the Sponsors proposed business plan and investment thesis. | ||
The foregoing provisions, collectively, the Senior Bridge Facility Documentation Principles. All standards, qualifications, thresholds, exceptions, baskets and grace and cure periods in the Senior Bridge Facility Documentation to be consistent with the Senior Bridge Facility Documentation Principles. | ||
Counsel to BIP shall draft the Senior Bridge Facility Documentation consistent with the Senior Bridge Facility Documentation Principles. | ||
Representations and Warranties: | The Senior Bridge Facility Documentation will contain representations and warranties that are substantially similar to the representations and warranties in that certain Credit Agreement, dated as of June 22, 2017, among BCP Raptor, LLC, BCP Raptor Intermediate Holdco, LLC, Jefferies |
B-5
CONFIDENTIAL | ||||
EXHIBIT B |
Finance LLC, as administrative agent and the issuing banks and lenders from time to time party thereto, with modifications customary for bridge loan financings of this type to the extent necessary to reflect differences in documentation (and in any event such representations and warranties shall be not less favorable to the Senior Bridge Facility Borrower and its restricted subsidiaries than those set forth in the Second Amended and Restated Credit Agreement, dated as of June 2, 2017 between TEP, the lenders and issuing banks from time to time party thereto and Wells Fargo Bank, N.A., as administrative agent, as amended, amended and restated, supplemented or otherwise modified, the TEP Revolver). | ||
Covenants: | The Senior Bridge Facility Documentation will contain such affirmative covenants and incurrence based negative covenants that are consistent with the Senior Bridge Facility Documentation Principles and as are customary for high-yield lite debt securities similar to the 2023 Notes. There will not be any financial maintenance covenants. | |
Events of Default: | The Senior Bridge Facility Documentation will contain such events of default (including notice and grace periods) consistent with the Senior Bridge Facility Documentation Principles (but in any event less restrictive than those in the 2023 Notes), consisting of nonpayment of principal, interest or other amounts; violation of covenants; incorrectness of representations and warranties in any material respect; cross acceleration to material indebtedness; bankruptcy or insolvency proceedings; material monetary judgments subject to a threshold amount; and actual or asserted invalidity of material guarantees. | |
Voting: | Amendments and waivers of the Senior Bridge Facility Documentation will require the approval of the Senior Bridge Facility Lenders holding more than 50% of the aggregate principal amount of the Senior Bridge Loans, except that the consent of each Senior Bridge Facility Lender directly adversely affected thereby shall be required with respect to (a) reductions of principal, interest or fees payable to such Senior Bridge Facility Lender, (b) extensions of final maturity of the Senior Bridge Loans of such Lender or the due date of any interest or fee payment, (c) releases of all or substantially all of the value of the guarantees provided by the guarantors and (d) changes in voting thresholds. | |
In addition, if the Administrative Agent and the Senior Bridge Facility Borrower shall have jointly identified an obvious error or any error or omission of a technical nature in the Senior Bridge Facility Documentation, then the Administrative Agent and the Senior Bridge Facility Borrower shall be permitted to amend such provision without any further action or consent of any other party with notice given to the Senior Bridge Facility Lenders of any such amendment. |
B-6
CONFIDENTIAL | ||||
EXHIBIT B |
The Senior Bridge Facility Documentation will contain customary provisions allowing the Senior Bridge Facility Borrower to replace a Senior Bridge Facility Lender or prepay that Senior Bridge Facility Lenders outstanding Senior Bridge Loans in full in connection with amendments and waivers requiring the consent of all Senior Bridge Facility Lenders or of all Senior Bridge Facility Lenders directly adversely affected thereby (so long as the Senior Bridge Facility Lenders holding more than 50% of the aggregate principal amount of the Senior Bridge Loans have approved the amendment or waiver), increased costs, taxes, etc. and defaulting or insolvent Senior Bridge Facility Lenders. | ||
Cost and Yield Protection: | Customary for financings of this kind, it being agreed that the documentation will provide customary provisions regarding withholding tax liabilities and a customary exception to be agreed to the gross-up obligations for U.S. federal withholding taxes including those imposed pursuant to current Sections 1471-1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any Treasury regulations or other published administrative guidance or intergovernmental agreements promulgated thereunder, and any rules or official guidance implementing such intergovernmental agreements. | |
Expenses and Indemnification: | The Senior Bridge Facility Borrower shall pay (a) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Commitment Parties incurred on or after the Closing Date (within 30 days of a written demand therefor, together with backup documentation supporting such reimbursement request) associated with the syndication of the Senior Bridge Facility and the preparation, execution, delivery and administration of the Senior Bridge Facility Documentation and any amendment or waiver with respect thereto (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to the Administrative Agent and the Commitment Parties taken as a whole and, if necessary, of one local counsel in any relevant material jurisdiction and, solely in an actual or perceived conflict of interest, one additional counsel in each relevant material jurisdiction), and (b) if the Closing Date occurs, all reasonable and documented out-of-pocket expenses of the Administrative Agent within 30 days of a written demand |
B-7
CONFIDENTIAL | ||||
EXHIBIT B |
therefor, together with reasonable backup documentation supporting such reimbursement request (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to the Administrative Agent and the Senior Bridge Facility Lenders taken as a whole, and, if necessary, of one local counsel in any relevant material jurisdiction and, solely in an actual or perceived conflict of interest, one additional counsel in each relevant material jurisdiction) in connection with the enforcement of the Senior Bridge Facility Documentation or protection of rights thereunder. | ||
The Administrative Agent, the Lead Arrangers, the Co-Manager and the Senior Bridge Facility Lenders (and their respective affiliates and their respective officers, directors, employees, agents, advisors and other representatives) (each, an indemnified person) will be indemnified for and held harmless against, any losses, claims, damages, liabilities or expenses (but limited, in the case of legal fees and expenses, to the reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to the indemnified persons taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction and, solely in the case of an actual or perceived conflict of interest, one additional counsel to the affected indemnified persons similarly situated taken as a whole in each relevant material jurisdiction), incurred in respect of the Senior Bridge Facility or the use or the proposed use of proceeds thereof, except to the extent they arise from the gross negligence, bad faith or willful misconduct of, or material breach of the Senior Bridge Facility Documentation by, the relevant indemnified person or any of its affiliates or their respective officers, directors, employees, partners, agents, advisors or other representatives as determined by a final, non-appealable judgment of a court of competent jurisdiction or any dispute solely among the indemnified persons (other than claims against the Administrative Agent, the Lead Arrangers or the Co-Manager in its capacity or in fulfilling its role as the Administrative Agent or arranger or any similar role under the Senior Bridge Facility and other than any claims arising out of any act or omission of the Senior Bridge Facility Borrower or any of its affiliates); provided that the Senior Bridge Facility Borrower shall not be liable for any indirect, special, punitive or consequential damages (other than in respect of any such damages incurred or paid by an indemnified person to a third party and required to be indemnified pursuant to the indemnification provisions). | ||
Governing Law and Forum: | New York. | |
Counsel to the Commitment Parties and Lead Arrangers: | Latham & Watkins LLP. |
B-8
CONFIDENTIAL | ||||
ANNEX I TO EXHIBIT B
Senior Unsecured Term Loans
Maturity: | The Senior Unsecured Term Loans will mature on the date that is 5 1⁄2 years after the Closing Date. | |
Guarantees: | Same as the Senior Bridge Loans. | |
Interest Rate: | The Senior Unsecured Term Loans will bear interest at a rate equal to the Total Cap (as defined in the Fee Letter). | |
Covenants, Defaults and | ||
Mandatory Offers to Purchase: | Upon and after the Senior Conversion Date, the covenants, mandatory offers to purchase and defaults which would be applicable to the Senior Exchange Notes, if issued, will also be applicable to the Senior Unsecured Term Loans in lieu of the corresponding provisions of the Senior Bridge Loans (except that any offer to repurchase upon the occurrence of a change of control will be made at 100% of the outstanding principal amount thereof, plus accrued and unpaid interest to the date of repurchase). | |
Optional Prepayment: | The Senior Unsecured Term Loans may be prepaid, in whole or in part, at par, plus accrued and unpaid interest upon not less than three days prior written notice, at the option of the Senior Bridge Facility Borrower at any time |
.
I-B-1
CONFIDENTIAL | ||||
ANNEX II TO EXHIBIT B |
Senior Exchange Notes
Issue: | The Senior Exchange Notes will be issued under an indenture, and such indenture and any related documentation (the Senior Exchange Notes Documents) shall be negotiated in good faith, shall contain the terms and conditions set forth in this Annex II to Exhibit C and shall be consistent with the Senior Bridge Facility Documentation Principles (for the avoidance of doubt, for the purposes of this Annex II and Annex I, as applicable to high yield lite debt securities similar to the 2023 Notes rather than a bridge facility). The Senior Exchange Notes Documents shall contain only those payments, mandatory offers to purchase, covenants and events of default expressly set forth or described in this Annex II to Exhibit C, in each case, applicable to the Senior Bridge Facility Borrower and its restricted subsidiaries and with standards, qualifications, thresholds, exceptions, baskets and grace and cure periods consistent with the Senior Bridge Facility Documentation Principles. | |
Guarantees: | Same as the Senior Unsecured Term Loans. | |
Maturity: | The Senior Exchange Notes will mature on the date that is 5 1⁄2 years after the Closing Date. | |
Interest Rate: | The Senior Exchange Notes will bear interest at a rate equal to the Total Cap (as defined in the Fee Letter). | |
Repurchase upon Change of Control: | The Senior Bridge Facility Borrower will be required to make an offer to repurchase the Senior Exchange Notes following the occurrence of a change of control at a price in cash equal to 101% (or, 100% in the case of Senior Exchange Notes held by a Commitment Party or its affiliates other than Asset Management Affiliates (as defined in the Fee Letter) and Senior Exchange Notes acquired pursuant to bona fide open-market purchases from third parties or market making activities (Repurchased Notes)) of the outstanding principal amount thereof, plus accrued and unpaid interest to the date of repurchase. | |
Optional Redemption: | The Senior Exchange Notes will be non-callable (subject to the make-whole and equity clawback exceptions in the three succeeding paragraphs below) until the second anniversary of the Closing Date. Thereafter, each Senior Exchange Note will be callable at par plus accrued interest plus a premium equal to 50% of the coupon on such Senior Exchange Note, which premium shall decline ratably on each subsequent anniversary of the Closing Date to zero on the date that is 1 1⁄2 years prior to the maturity of the Senior Exchange Notes. |
II-B-1
CONFIDENTIAL | ||||
EXHIBIT B |
Prior to the second anniversary of the Closing Date, the Senior Bridge Facility Borrower may redeem Senior Exchange Notes at a make-whole price based on U.S. Treasury notes with a maturity closest to the second anniversary of the Closing Date plus 50 basis points. | ||
Prior to the second anniversary of the Closing Date, the Senior Bridge Facility Borrower may redeem up to 40% of the Senior Exchange Notes with proceeds from an equity offering (or equity contribution) at a redemption price equal to par plus the coupon on such Senior Exchange Notes so long as 50% of the original aggregate principal amount of the Senior Exchange Notes remains outstanding (unless all Senior Exchange Notes are redeemed substantially concurrently therewith). | ||
The optional redemption provisions will be otherwise consistent with the Senior Bridge Facility Documentation Principles as applied to transactions of this kind. Senior Exchange Notes held by (and for so long as they are held by) a Commitment Party or its affiliates (other than Asset Management Affiliates and Repurchased Notes) shall be redeemable at any time and from time to time at the option of the Senior Bridge Facility Borrower at a redemption price equal to par plus accrued and unpaid interest to the redemption date. | ||
Defeasance Provisions: | Consistent with the Senior Bridge Facility Documentation Principles as applied to transactions of this kind. | |
Modification: | Consistent with the Senior Bridge Facility Documentation Principles as applied to transactions of this kind. | |
Covenants: | Consistent with the Senior Bridge Facility Documentation Principles as applied to transactions of this kind. | |
Registration Rights: | None. 144A for life. | |
Events of Default: | Consistent with the Senior Bridge Facility Documentation Principles as applied to transactions of this kind. |
II-B-2
CONFIDENTIAL
EXHIBIT C
Project Prairie II
Senior Unsecured Bridge Facility
Funding Conditions
Subject to the Limited Conditionality Provision and the Senior Bridge Facility Documentation Principles in all respects, the initial availability of, and initial funding under, the Senior Bridge Facility on the Closing Date shall be subject solely to the satisfaction or waiver by the Lead Arrangers of the following conditions precedent:
1. | The execution and delivery by the Senior Bridge Credit Parties of the Senior Bridge Facility Documentation consistent with the Commitment Letter. |
2. | The Administrative Agent shall have received the following (the Closing Deliverables): (a) customary legal opinions, (b) customary evidence of authority, (c) customary officers and closing certificates (certifying as to resolutions, organizational documents, incumbency, accuracy of the Specified Representations as set forth in paragraph 6 below and closing of the TGE Merger as set forth in the Acquisition Agreement) and (d) good standing certificates (to the extent applicable) in the respective jurisdictions of organization of the Senior Bridge Facility Credit Parties. |
3. | The Administrative Agent shall have received at least three (3) business days prior to the Closing Date all documentation and other information about the Senior Bridge Facility Borrower and the Senior Bridge Facility Guarantors required under applicable know your customer and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested by the Administrative Agent in writing at least ten (10) business days prior to the Closing Date. At least three (3) business days prior to the Closing Date, if the Senior Bridge Facility Borrower qualifies as a legal entity customer under the Beneficial Ownership Regulation, then the Senior Bridge Facility Borrower shall have delivered to the Administrative Agent a Beneficial Ownership Certification in relation to the Senior Bridge Facility Borrower on the form promulgated by the Loan Syndications and Trading Association. Beneficial Ownership Certification means a certification regarding individual beneficial ownership solely to the extent required by 31 C.F.R. §1010.230. |
4. | Payment of all fees pursuant to the Fee Letter and reasonable and documented out-of-pocket expenses pursuant to the Commitment Letter due to the Commitment Parties (in the case of expenses, to the extent invoiced at least three (3) business days prior to the Closing Date (except as otherwise reasonably agreed by the Sponsors)) required to be paid on the Closing Date from the proceeds of the initial funding under the Senior Bridge Facility. |
5. | The TGE Merger shall have been consummated, or shall be consummated substantially concurrently with the initial borrowing under the Senior Bridge Facility on the Closing Date in all material respects in accordance with the terms of the Acquisition Agreement. The Acquisition Agreement shall not have been amended or waived in any material respect by the Buyer or any of its affiliates in a manner materially adverse to the Senior Bridge Facility Lenders (in their capacity as such) without the consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned); provided that: (a) any amendment or waiver which results in a reduction in the Merger Consideration (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date, and as amended prior to the date hereof in accordance with the Original Commitment Letter and hereafter in accordance herewith) shall not be deemed to be materially |
C-1
CONFIDENTIAL | ||||
EXHIBIT C |
adverse to the Senior Bridge Facility Lenders; (b) any increase in the Merger Consideration shall not be deemed to be materially adverse to the Senior Bridge Facility Lenders; (c) any amendment to the definition of Partnership Material Adverse Effect in the Acquisition Agreement shall be deemed to be materially adverse to the interests of the Senior Bridge Facility Lenders and (d) any extension of the Outside Date (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date, and as amended prior to the date hereof in accordance with the Original Commitment Letter and hereafter in accordance herewith) of the Acquisition Agreement shall not be deemed to be materially adverse to the Senior Bridge Facility Lenders if such extended date is on or prior to the End Date. |
6. | The Acquisition Agreement Representations (to the extent required by the Limited Conditionality Provision) and the Specified Representations pertaining to the Senior Bridge Facility Credit Parties shall be true and correct in all material respects on the Closing Date (or, to the extent qualified by materiality, true and correct in all respects) (in each case, unless such Acquisition Agreement Representations or Specified Representations relate to an earlier date, in which case, such Acquisition Agreement Representations or Specified Representations shall have been true and correct in all material respects as of such earlier date). |
7. | The Administrative Agent shall have received a solvency certificate, substantially in the form set forth in Annex I attached to this Exhibit C from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Senior Bridge Facility Borrower as to the solvency of the Senior Bridge Facility Borrower and its subsidiaries on a consolidated basis. |
8. | The Lead Arrangers shall have received copies of (a) the unaudited consolidated balance sheets and related consolidated statements of income, changes in equity and cash flows of TEP for each fiscal quarter beginning after the most recently completed fiscal year ended at least 45 days prior to the Closing Date (but excluding the fourth quarter of any fiscal year) (it being understood that such financial statements specified in this clause (a) need not include footnotes and are subject to year-end audit adjustments) and (b) the audited consolidated balance sheets and related consolidated statements of income, changes in equity and cash flows of TEP for the three (3) most recently completed fiscal years ended at least 45 days prior to the Closing Date; provided that, (i) the Lead Arrangers confirm that (x) they have received the financial statements described in clause (a) for the fiscal quarters ending March 31, 2019, June 30, 2019 and September 30, 2019 and (y) they have received the financial statements described in clause (b) for the fiscal years ending December 31, 2016, December 31, 2017 and December 31, 2018 and (ii) with respect to clauses (a) and (b) above, (x) any such financial statements, consolidating schedules or other information constituting part of the SEC Reports and/or the Annual Reports on Form 10-K for the fiscal year ended December 31, 2017 and December 31, 2016 filed by TEP, including any amendments thereto, shall be deemed to be delivered by virtue of such filings and (y) so long as TEP is a consolidated subsidiary of TGE for financial reporting purposes, any such financial statements, consolidating schedules or other information shall be deemed delivered by virtue of the filing by TGE of Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, provided that such filings contain, or are accompanied by, consolidating information that explains in reasonable detail the differences between the information relating to TGE, on the one hand, and the information relating to TEP and its subsidiaries on a standalone basis, on the other hand. |
9. | The Lead Arrangers shall have received a pro forma unaudited consolidated balance sheet and related pro forma unaudited consolidated statement of income of TEP as of and for the twelve-month period ending on the last day of the most recently completed four (4) fiscal quarter period ended at least 45 days prior to the Closing Date (provided that if such four (4) fiscal quarter period |
C-2
CONFIDENTIAL | ||||
EXHIBIT C |
would be the end of a fiscal year, then such pro forma consolidated balance sheet shall be as of and for the twelve-month period ending on the last day of the most recently completed four (4) fiscal period ended at least 45 days prior to the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements). |
10. | As a condition to the availability of the Senior Bridge Facility, (a) one or more investment banks (the Investment Banks) shall have been engaged to privately place the Senior Notes pursuant to an engagement letter dated as of the date hereof among the Investment Banks and you (with the Commitment Parties acknowledging that the condition set forth in this clause (a) has been satisfied), (b) the Senior Bridge Facility Borrower shall have provided (i) to the Investment Banks a customary preliminary offering memorandum (collectively, the Offering Document) for the Senior Notes suitable for use in a customary (for offerings of high yield debt securities by leveraged affiliates of the Sponsors) high-yield road show relating to the Senior Notes, which, subject to exceptions customary for Rule 144A for life offerings involving high yield debt securities, contains financial statements, pro forma financial statements, business and other financial data of the type and form that are customarily included in private placements of non-convertible unsecured high yield debt securities pursuant to Rule 144A promulgated under the Securities Act (but excluding, in any event, information required by Section 3-09, Section 3-10, or Section 3-16 of Regulation S-X, information required by Item 10, Item 402 and Item 601 of Regulation S-K, XBRL exhibits and information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A and other customary exceptions in Rule 144A for life placements) (it being understood and agreed that financial statements for any period, other than as expressly set forth in paragraphs 8 and 9 above, shall not be required), and (ii) all other data that would be necessary for the Investment Banks to receive customary (for high yield unsecured debt securities issued in a private placement pursuant to Rule 144A) comfort letters (including customary negative assurance comfort) from the independent accountants of TEP (or its direct or indirect parent) in connection with the offering of the Senior Notes (and Senior Bridge Facility Borrower shall have made commercially reasonable efforts to provide the Investment Banks with drafts of such comfort letters (which shall provide customary negative assurance comfort), which such accountants would be prepared to issue upon completion of customary procedures); provided, that, the conditions set forth in this clause (b) shall be deemed satisfied if such Offering Document excludes the description of notes and sections that would customarily be provided by the Investment Banks or their counsel but is otherwise complete, and (c) the Investment Banks shall have been afforded a period of at least 12 consecutive business days following the date of delivery of an Offering Document including the information described in clause (b) above to seek to place the Senior Notes with qualified purchasers thereof. |
11. | Since the Original Commitment Letter Date, there shall not have been any event, change, fact, development, circumstance, condition or occurrence with respect to the Partnership Entities (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date, and as amended prior to the date hereof in accordance with the Original Commitment Letter and hereafter in accordance herewith) that has had or would, individually or in the aggregate, reasonably be expected to have a Partnership Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the Original Commitment Letter Date, and as amended prior to the date hereof in accordance with the Original Commitment Letter and hereafter in accordance herewith). |
C-3
CONFIDENTIAL
ANNEX I TO EXHIBIT C
FORM OF SOLVENCY CERTIFICATE
SOLVENCY CERTIFICATE3
of
[BORROWER]
Pursuant to the Credit Agreement, the undersigned hereby certifies, solely in such undersigneds capacity as [chief financial officer] [chief accounting officer] [specify other officer with equivalent duties] of the Borrower and its subsidiaries on a consolidated basis and not individually, as follows:
As of the date hereof, after giving effect to the consummation of the Transactions, including the making of the Loans under the Credit Agreement on the date hereof, and after giving effect to the application of the proceeds of such Loans:
a. | The fair value of the assets of the Borrower and its subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise; |
b. | The present fair saleable value of the property of the Borrower and its subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; |
c. | The Borrower and its subsidiaries are, on a consolidated basis, able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and |
d. | The Borrower and its subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. |
For purposes of making the certifications set forth herein, (a) it is assumed the indebtedness and other obligations incurred under and in connection with the Facility will come due at maturity and (b) the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement.
The undersigned is familiar with the business and financial position of the Borrower and its subsidiaries. In reaching the conclusions set forth in this Certificate, the undersigned has made such other 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 Guarantors after consummation of the transactions contemplated by the Commitment Letter.
[Signature Page Follows]
3 | Defined terms to be conformed to the Senior Bridge Facility Documentation Principles. |
I-C-1
CONFIDENTIAL | ||||
ANNEX I TO EXHIBIT C |
IN WITNESS WHEREOF, the undersigned has executed this certificate in such undersigneds capacity as [chief financial officer] [chief accounting officer] [specify other officer with equivalent duties] of the Borrower, on behalf of the Borrower, and not individually, as of the date first stated above.
[BORROWER] |
By |
|
Name: |
| |
Title: |
|
I-C-2
Exhibit 25
CREDIT SUISSE LOAN FUNDING LLC CREDIT SUISSE
AG |
CITIGROUP GLOBAL MARKETS INC. |
JEFFERIES FINANCE LLC 520 Madison Avenue New York, NY 10022 | ||
MUFG BANK, LTD. 1221 Avenue of the Americas New York, NY 10020 |
BLACKSTONE HOLDINGS FINANCE CO. L.L.C. 345 Park
Avenue |
CONFIDENTIAL
January 24, 2020
PRAIRIE PRIVATE ACQUIROR LP
with a copy to:
Jasmine Ventures Pte. Ltd. 168 Robinson Road #37-01 Capital Tower Singapore, 068912 Attention: Ankur Meattle; Ashok Samuel |
and
GIC Special Investments Pte. Ltd. New York, New York, 10017 Attention: Alex Greenbaum and Yoni Gontownik
and
Enagás, S.A. |
Amended and Restated Side Letter
Ladies and Gentlemen:
Reference is made to (i) the letter dated the date hereof (as amended, amended and restated, supplemented or otherwise modified, the Bridge Facility Commitment Letter), among Credit Suisse AG (acting through such of its affiliates or branches as it deems appropriate, CS), Credit Suisse Loan Funding LLC (CSLF and, together with any designated affiliates and CS, Credit Suisse), Citigroup Global Markets Inc. (CGMI) on behalf of Citi (as defined below), Jefferies Finance LLC (Jefferies), MUFG Bank, LTD. (MUFG), Blackstone Holdings Finance Co. L.L.C. (acting through such of its affiliates as it deems appropriate, Blackstone and collectively with CS, Citi, Jefferies and MUFG, the Banks) and Prairie Private Acquiror LP, a Delaware limited partnership (the Buyer or you), providing a commitment by the Banks to provide a senior unsecured bridge facility financing in an aggregate principal amount of up to $575 million to Tallgrass Energy Partners, LP, a Delaware limited partnership (TEP), to fund a portion of the consideration (the Merger Consideration) payable in connection with the merger of the Buyer with and into Tallgrass Energy, LP, a Delaware limited partnership and a parent entity of TEP
(such merger, the TGE Merger), (ii) the letter dated the date hereof (as amended, amended and restated, supplemented or otherwise modified, the Term Facility Commitment Letter and, together with the Bridge Facility Commitment Letter, the Commitment Letters), among the Banks and the Buyer, providing a commitment by the Banks to provide a term facility financing in an aggregate principal amount of up to $575 million to one or more parent companies of the Buyer to fund a portion of the Merger Consideration, (iii) the letter dated the date hereof (as amended, amended and restated, supplemented or otherwise modified, the Bridge Facility Fee Letter), among the Banks and the Buyer setting forth the fees to be paid by the Buyer upon consummation of the transactions contemplated by the Bridge Facility Commitment Letter, (iv) the letter dated the date hereof (as amended, amended and restated, supplemented or otherwise modified, the Engagement Letter and, together with the Bridge Facility Commitment Letter, the Bridge Facility Fee Letter and any side letters or other agreements related thereto (other than this letter), collectively, the Bridge Letters) among each Bank or one or more of its affiliates and Buyer, providing for the engagement by Buyer of such Bank and/or its affiliates to manage, as underwriter, placement agent, and /or initial purchaser in one or more offerings of high yield debt securities in lieu of all or a portion of the financing contemplated under the Bridge Facility Commitment Letter and (v) the letter dated the date hereof (as amended, amended and restated, supplemented or otherwise modified, the Term Facility Fee Letter and, together with the Term Facility Commitment Letter and any side letters or other agreements related thereto (other than this letter), collectively, the Term Facility Letters)), among the Banks and the Buyer setting forth the fees to be paid by the Buyer upon consummation of the transactions contemplated by the Term Facility Commitment Letter.
For purposes of this Amended and Restated Side Letter (this Side Letter), Citi means CGMI, 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. It is understood and agreed that CGMI is entering into this Side Letter for and on behalf of Citi.
Each Bank and the Buyer agree that the Banks will only be required to provide financing pursuant to the Bridge Facility Commitment Letter or the Term Facility Commitment Letter (but not both) in accordance with, and subject to, their respective terms and conditions; provided that the Buyer shall elect (the Financing Election) whether to pursue the financing contemplated by the Bridge Facility Commitment Letter (the Bridge Financing) or the financing contemplated by the Term Facility Commitment Letter (the Term Facility Financing) in a written notice delivered to CS on or prior to January 31, 2020; provided, further, that if the Buyer does not make a Buyer Financing Election on or prior to January 31, 2020, the Banks holding a majority of the commitments under the Bridge Facility Commitment Letter or the Term Facility Commitment Letter, as applicable shall promptly elect (the Bank Financing Election) whether to provide the Bridge Financing or the Term Facility Financing (but not both) in accordance with, and subject to, their respective terms and conditions and shall deliver prompt written notice of such election to the Buyer. Each Bank and the Buyer further agree that, notwithstanding anything to the contrary in the Bridge Facility Commitment Letter or the Term Facility Commitment Letter, the 12 consecutive business day periods referred to in paragraph 10 of Exhibit C of the Bridge Facility Commitment Letter and in paragraph 13 of Exhibit C of the Term Facility Commitment Letter, in each case, will not commence unless a Buyer Financing Election or Bank Financing Election has occurred.
Each Bank and the Buyer further agree that if the Buyer Financing Election or the Bank Financing Election has occurred, notwithstanding anything to the contrary set forth in any of the Bridge Letters or Term Facility Letters (including pursuant to Section 13 of the Bridge Facility Commitment Letter, Section 5 of the Engagement Letter and Section 13 of the Term Facility Commitment Letter, as applicable), (i) in the event that the result of such election is pursuit of the Bridge Financing, (x) the Term Facility Letters shall automatically terminate in full and be of no further force and effect, (y) fees, expenses and indemnities will be payable or reimbursed, as applicable, solely in accordance with the terms of the Bridge Letters and (z) for the avoidance of doubt, no fees (including any deal away fees) shall be payable under
the Term Facility Letters and (ii) in the event that the result of such election is pursuit of the Term Facility Financing, (x) the Bridge Letters shall automatically terminate in full and be of no further force and effect, (y) fees, expenses and indemnities will be payable or reimbursed, as applicable, solely in accordance with the terms of the Term Facility Letters and (z) for the avoidance of doubt, no fees (including any deal away fees) shall be payable under the Bridge Letters.
Buyer further agrees that, in the event that both the Bridge Letters and the Term Facility Letters have been terminated and during the 12-month period following the Original Commitment Letter Date (as defined in the Commitment Letter) Buyer or any of its affiliates consummates an Alternate Transaction (as defined in the Bridge Facility Fee Letter) with proceeds of borrowings under the TEP Revolver (as defined in the Bridge Facility Commitment Letter) or cash on hand of TEP (as defined in the Bridge Facility Commitment Letter) (and excluding, for the avoidance of doubt, equity proceeds or proceeds of other debt), Buyer agrees to pay (or cause to be paid), a compensatory fee (the Revolver Deal-Away Fee) to each Bank ratably in accordance with the percentage of compensatory economics applicable to such Bank specified in the Bridge Facility Commitment Letter in an amount equal to [ ]% of the principal amount borrowed under the TEP Revolver or balance sheet cash utilized for the purpose of funding such Alternate Transaction; provided that in no event shall the aggregate Revolver Deal-Away Fee exceed $[ ]. For the avoidance of doubt, the provisions of this paragraph shall survive any termination of the Bridge Letters and Term Facility Letters.
Governing Law, Etc.
This letter agreement may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each Bank and you. This letter agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this letter agreement by facsimile transmission or electronic photocopy (i.e., pdf) shall be effective as delivery of a manually executed counterpart of this letter agreement. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law to the extent that the same are not mandatorily applicable by statute and the application of the laws of another jurisdiction would be required thereby. Any right to trial by jury with respect to any claim or action arising out of this letter agreement or conduct in connection with this agreement is hereby waived. The parties hereto agree that this letter agreement is subject to the confidentiality provisions of each of the Commitment Letters. The provisions of this letter agreement shall survive the expiration or termination of each of the Commitment Letters (including any extensions thereof).
[Signature Page Follows]
Please confirm that the foregoing is our mutual understanding by signing and returning to us an executed copy of this letter agreement.
Very truly yours, | ||
CREDIT SUISSE LOAN FUNDING LLC | ||
By: | /s/ Max Lipkind | |
Name: | Max Lipkind | |
Title: | Managing Director | |
CREDIT SUISSE AG | ||
By: | /s/ Nupur Kumar | |
Name: | Nupur Kumar | |
Title: | Authorized Signatory | |
By: | /s/ Brady Bingham | |
Name: | Brady Bingham | |
Title: | Authorized Signatory | |
CITIGROUP GLOBAL MARKETS INC. | ||
By: | /s/ Mohammed Baabde | |
Name: | Mohammed Baabde | |
Title: | Managing Director | |
JEFFERIES FINANCE LLC | ||
By: | /s/ John Koehler | |
Name: | John Koehler | |
Title: | Managing Director | |
MUFG BANK, LTD. | ||
By: | /s/ Grant Moyer | |
Name: | Grant Moyer | |
Title: | MD | |
BLACKSTONE HOLDINGS FINANCE CO. L.L.C. | ||
By: | /s/ Matthew Skurbe | |
Name: | Matthew Skurbe | |
Title: | Managing Director and Treasurer |
[SIGNATURE PAGE TO SIDE LETTER]
Accepted and agreed to as of the date first above written:
PRAIRIE PRIVATE ACQUIROR LP | ||
By: BIP Holdings Manager L.L.C., its general partner
| ||
By: | /s/ Wallace C. Henderson | |
Name: | Wallace C. Henderson | |
Title: | Senior Managing Director |
[SIGNATURE PAGE TO SIDE LETTER]
Exhibit 26
JOINT FILING AGREEMENT
Pursuant to and in accordance with the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the Exchange Act) the undersigned hereby agree to the joint filing on behalf of each of them of any filing required by such party under Section 13 of the Exchange Act or any rule or regulation thereunder (including any amendment, restatement, supplement, and/or exhibit thereto) with respect to securities of Tallgrass Energy, LP, a Delaware limited partnership, and further agree to the filing, furnishing, and/or incorporation by reference of this Agreement as an exhibit thereto. Each of them is responsible for the timely filing of such filings and any amendments thereto, and for the completeness and accuracy of the information concerning such person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons making the filing, unless such person knows or has reason to believe that such information is inaccurate. This Agreement shall remain in full force and effect until revoked by any party hereto in a signed writing provided to each other party hereto, and then only with respect to such revoking party. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of February 19, 2020.
PRAIRIE ECI ACQUIROR LP | ||
By: | BIP Holdings Manager L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director |
PRAIRIE NON-ECI ACQUIROR LP | ||
By: | BIP Holdings Manager L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director |
PRAIRIE VCOC ACQUIROR LP | ||
By: | BIP Holdings Manager L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director |
PRAIRIE SECONDARY ACQUIROR LP | ||
By: | BIP Holdings Manager L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director |
PRAIRIE SECONDARY ACQUIROR E LP | ||
By: | BIP Holdings Manager L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director | |
BIP HOLDINGS MANAGER L.L.C. |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director | |
BLACKSTONE INFRASTRUCTURE ASSOCIATES L.P. | ||
By: | BIA GP L.P., its general partner | |
By: | BIA GP L.L.C., its general partner |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director | |
BIA GP L.P. |
By: | BIA GP L.L.C., its general partner | |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director | |
BIA GP L.L.C. |
By: | /s/ Sean Klimczak |
Name: | Sean Klimczak |
Title: | Senior Managing Director | |
BLACKSTONE HOLDINGS III L.P. |
By: | Blackstone Holdings III GP L.P., its general partner | |
By: | Blackstone Holdings III GP Management L.L.C., its general partner |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer |
BLACKSTONE HOLDINGS III GP L.P. | ||
By: | Blackstone Holdings III GP Management L.L.C., its general partner | |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS III GP MANAGEMENT L.L.C. |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS II L.P. |
By: | Blackstone Holdings I/II GP L.L.C., its general partner |
By: | The Blackstone Group Inc., its sole member |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
BLACKSTONE HOLDINGS I/II GP L.L.C. | ||
By: | The Blackstone Group Inc., its sole member |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
THE BLACKSTONE GROUP INC. |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
BLACKSTONE GROUP MANAGEMENT L.L.C. |
By: | /s/ John G. Finley |
Name: | John G. Finley |
Title: | Chief Legal Officer | |
STEPHEN A. SCHWARZMAN |
By: | /s/ Stephen A. Schwarzman |
By: | Stephen A. Schwarzman |