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8-K - FORM 8-K - DITECH HOLDING Corp | c16386e8vk.htm |
Exhibit 10.1
Execution Version
CREDIT SUISSE SECURITIES (USA) LLC Eleven Madison Avenue New York, NY 10010 CREDIT SUISSE AG Eleven Madison Avenue New York, NY 10010 |
RBS SECURITIES INC. 600 Washington Boulevard Stamford, CT 06901 THE ROYAL BANK OF SCOTLAND PLC 600 Washington Boulevard Stamford, CT 06901 |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED One Bryant Park New York, NY 10036 BANK OF AMERICA, N.A. One Bryant Park New York, NY 10036 |
MORGAN STANLEY SENIOR FUNDING, INC.
1585 Broadway
New York, NY 10036
1585 Broadway
New York, NY 10036
CONFIDENTIAL
April 25, 2011
Walter Investment Management Corp.
3000 Bayport Drive, Suite 1100
Tampa, FL 33607
Attention: Denmar J. Dixon
3000 Bayport Drive, Suite 1100
Tampa, FL 33607
Attention: Denmar J. Dixon
PROJECT CARDINAL
$545,000,000 First Lien Senior Secured Credit Facilities
$265,000,000 Second Lien Senior Secured Term Facility
Amended and Restated Commitment Letter
$545,000,000 First Lien Senior Secured Credit Facilities
$265,000,000 Second Lien Senior Secured Term Facility
Amended and Restated Commitment Letter
Ladies and Gentlemen:
You have advised Credit Suisse AG (acting through such of its affiliates or branches as it
deems appropriate, CS), Credit Suisse Securities (USA) LLC (CS Securities, and together with CS
and their respective affiliates, Credit Suisse), The Royal Bank of Scotland plc (RBS Bank), RBS
Securities Inc. (RBS Securities and, together with RBS Bank, RBS), Merrill Lynch, Pierce,
Fenner & Smith Incorporated (MLPFS), Bank of America, N.A. (BofA and together with MLPFS, Bank
of America) and Morgan Stanley Senior Funding, Inc. (Morgan Stanley and together with Credit
Suisse, RBS and Bank of America, the Commitment Parties, we or us) that you intend to acquire
(the Acquisition) GTCS Holdings LLC, a Delaware limited liability company (the Company), from
GTH LLC, a Delaware limited liability company (the Seller), and to consummate the other
Transactions (such term and each other capitalized term used but not defined herein having the
meaning assigned to such term in the Summary of Principal First Lien Terms and Conditions attached
hereto as Exhibit A (the First Lien Facilities Term Sheet) or in the Summary of Principal Second
Lien Terms and Conditions attached hereto as Exhibit B (the Second Lien Facility Term Sheet and,
together with the First Lien Facilities Term Sheet, the Term Sheets)). This Commitment Letter
(as defined below) amends, restates and supersedes and replaces in its entirety as of the date
first above written the commitment letter dated as of March 25, 2011 among the Borrower, CS, CS
Securities, RBS Bank and RBS Securities, and such commitment letter shall be of no further force or
effect.
Commitment Letter
You have further advised us that, in connection therewith, the Borrower will obtain (a) the
first lien senior secured credit facilities (the First Lien Facilities) described in the First
Lien Facilities Term Sheet, in an aggregate principal amount of up to $545,000,000 and (b) the
second lien senior secured term loan facility (the Second Lien Term Facility) described in the
Second Lien Facility Term Sheet in a principal amount of up to $265,000,000. The First Lien
Facilities and the Second Lien Term Facility are collectively referred to herein as the
Facilities.
1. Commitments.
In connection with the foregoing, (a) CS is pleased to advise you of its commitment to provide
one-third of the principal amount of the Facilities, (b) RBS Bank is pleased to advise you of its
commitment to provide one-third of the principal amount of the Facilities, (c) BofA is pleased to
advise you of its commitment to provide one-sixth of the principal amount of the Facilities and (d)
Morgan Stanley (in such capacity, an Initial Lender and, together with CS, RBS Bank and BofA, the
Initial Lenders) is pleased to advise you of its commitment to provide one-sixth of the principal
amount of the Facilities, in each case upon the terms set forth in this commitment letter
(including the Term Sheets and other attachments hereto, this Commitment Letter), and subject to
the conditions set forth in Section 6 of this Commitment Letter, the section entitled Conditions
Precedent to Initial Borrowing in the First Lien Facilities Term Sheet, the section entitled
Conditions Precedent to Borrowing in the Second Lien Facility Term Sheet and Exhibit C to this
Commitment Letter. The commitments of CS, RBS Bank, BofA and Morgan Stanley hereunder will be
allocated ratably among the Facilities and are several and not joint.
2. Titles and Roles.
You hereby appoint (a) CS Securities and RBS Securities to act, and CS Securities and RBS
Securities hereby agree to act, as joint lead arrangers for the Facilities (in such capacities, the
Arrangers), (b) CS Securities, RBS Securities and MLPFS to act, and CS Securities, RBS Securities
and MLPFS hereby agree to act, as joint bookrunners for the Facilities (in such capacities, the
Bookrunners), (c) CS to act, and CS hereby agrees to act, as sole administrative agent and sole
collateral agent for the Facilities (in such capacities, the Agent), (d) RBS Bank to act, and RBS
Bank hereby agrees to act, as syndication agent for the Facilities (in such capacity, the
Syndication Agent) and (d) MLPFS and Morgan Stanley to act, and MLPFS and Morgan Stanley hereby
agree to act, as co-documentation agents for the Facilities (in such capacities, the
Co-Documentation Agents), in each case upon the terms and subject to the conditions set forth or
referred to in this Commitment Letter. Each of the Commitment Parties, in such capacities, will
perform the duties and exercise the authority customarily performed and exercised by it in such
roles. You agree that Credit Suisse will have left placement, RBS will appear immediately to the
right of Credit Suisse, Bank of America will appear immediately to the right of RBS and Morgan
Stanley will appear immediately to the right of Bank of America in any and all marketing materials
or other documentation used in connection with the Facilities. You further agree that no other
titles will be awarded and no compensation (other than that expressly contemplated by this
Commitment Letter and the Fee Letters referred to below) will be paid in connection with the
Facilities unless you and we shall so agree.
Commitment Letter
2
3. Syndication.
The Arrangers reserve the right, prior to and/or after the execution of definitive
documentation for the Facilities, to syndicate all or a portion of the Initial Lenders respective
commitments with respect to the Facilities to a group of banks, financial institutions and other
institutional lenders (together with the Initial Lenders, the Lenders) identified by the
Arrangers in consultation with you, and you agree to provide the Arrangers with a period of at
least 30
consecutive days immediately prior to the Closing Date to syndicate the Facilities.
Notwithstanding the Arrangers right to syndicate the Facilities and receive commitments in respect
thereof, (i) no Initial Lender shall be relieved, released or novated from its obligations
hereunder (including its commitments hereunder) in connection with any syndication, assignment or
participation of the Facilities, including their commitments in respect thereof, until after the
initial funding of the Facilities on the Closing Date has occurred and (ii) no assignment or
novation shall become effective with respect to all or any portion of any Initial Lenders
commitment in respect of the Facilities until the initial funding of the Facilities on the Closing
Date. We intend to commence syndication efforts promptly upon the execution of this Commitment
Letter, and you agree to actively assist us in completing a satisfactory syndication. Such
assistance shall include (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 Company, (b)
direct contact between senior management, representatives and advisors of you (and your using
commercially reasonable efforts to cause direct contact between senior management, representatives
and advisors of the Company) and the proposed Lenders, (c) assistance by you (and your using
commercially reasonable efforts to cause the Company to assist) in the preparation of a
Confidential Information Memorandum for each of the Facilities (each, a Confidential Information
Memorandum) and other customary marketing materials and presentations to be used in connection
with the syndication (the Information Materials), (d) your providing or causing to be provided a
detailed business plan or projections of you and your subsidiaries for the years 2011 through 2016
and for the four quarters beginning with the second quarter of 2011, in each case in form and
substance reasonably satisfactory to the Arrangers (the Plan Deliverables), it being understood
and agreed that the Plan Deliverables provided to the Arrangers prior to March 25, 2011 are in form
and substance reasonably satisfactory to the Arrangers; it being further understood and agreed that
you shall promptly provide any significant revisions to such business plan or projections to the
Arrangers and that such revised business plan or projections shall constitute Plan Deliverables
only if such revisions are in form and substance reasonably satisfactory to the Arrangers, (e) your
using commercially reasonable efforts to obtain promptly after the launch of the general
syndication and prior to the Closing Date of a public corporate credit rating from Standard &
Poors Ratings Service (S&P) and a public corporate family rating from Moodys Investors Service,
Inc. (Moodys), in each case with respect to you, and public ratings for each of the Facilities
from each of S&P and Moodys, (f) the hosting, with the Arrangers, of one or more meetings of
prospective Lenders and (g) your ensuring that prior to and during the syndication of the
Facilities, there are no competing issues, offerings, placements or arrangements of debt securities
or commercial bank or other credit facilities by or on behalf of the Borrower, the Company or their
respective subsidiaries being announced, offered, placed or arranged (other than securitizations
and lines of credit obtained by the Borrower, the Company or any of their respective subsidiaries,
in each case, in the ordinary course of business consistent with past practice and indebtedness
permitted to be incurred by the Purchase Agreement) without the consent of the Arrangers, if such
issues, offerings, placements or arrangements could reasonably be expected to impair the primary
syndication of the Facilities. Notwithstanding anything to the contrary in this Commitment Letter
or any other agreement or undertaking to the contrary, the obtaining of the ratings referenced
above shall not constitute a condition to the commitments hereunder or the funding of the
Facilities on the Closing Date.
Commitment Letter
3
You agree, at the request of the Arrangers, to assist in the preparation of a version of the
Information Materials to be used in connection with the syndication of the Facilities, consisting
exclusively of information and documentation that is either (a) publicly available (or, in the case
of the Company, of a type that would be publicly available if the Company were a public reporting
company) or (b) not material with respect to you, the Company or your and its
subsidiaries or any of your and its securities for purposes of foreign, United States Federal
and state securities laws (all such Information Materials being Public Lender Information). Any
information and documentation that is not Public Lender Information is referred to herein as
Private Lender Information. Before distribution of any Information Materials, you agree to
execute and deliver to the Arrangers, (i) a letter in which you authorize distribution of the
Information Materials to Lenders employees willing to receive Private Lender Information and (ii)
a separate letter in which you authorize distribution of Information Materials containing solely
Public Lender Information and represent that such Information Materials do not contain any Private
Lender Information, which letter shall in each case include a representation substantially in the
form of the representation set forth in Section 4. You further agree that each document to be
disseminated by any Arranger to any Lender in connection with the Facilities will, at the request
of such Arranger, be identified by you as either (A) containing Private Lender Information or (B)
containing solely Public Lender Information. You acknowledge that the following documents contain
solely Public Lender Information (unless you notify us promptly prior to their intended
distribution that any such document contains Private Lender Information): (1) drafts and final
definitive documentation with respect to the Facilities, including term sheets; (2) administrative
materials prepared by the Commitment Parties for prospective Lenders (such as a lender meeting
invitation, bank allocation, if any, and funding and closing memoranda); (3) notification of
changes in the terms of the Facilities; and (4) other materials (excluding the Projections (as
defined below)) intended for prospective Lenders after the initial distribution of Information
Materials.
The Arrangers will manage all aspects of any syndication in consultation with you, including
decisions as to the selection of institutions to be approached and when they will be approached,
when their commitments will be accepted, which institutions will participate, the allocation of the
commitments among the Lenders, any naming rights and the amount and distribution of fees among the
Lenders. To assist the Arrangers in their syndication efforts, you agree promptly to prepare and
provide (and to use commercially reasonable efforts to cause the Company promptly to provide) to
the Arrangers all information with respect to you, the Company and your and its subsidiaries, the
Transactions and the other transactions contemplated hereby, including all financial information
and projections (the Projections), as the Arrangers may reasonably request.
Without limiting your obligation to assist with the syndication efforts as set forth herein,
it is understood that the Initial Lenders respective commitments hereunder are not conditioned
upon the syndication of, or receipt of commitments in respect of, the Facilities and in no event
shall the commencement of syndication or completion of Successful Syndication (as defined in the
Facilities Fee Letter) constitute a condition to the availability of the Facilities on the Closing
Date.
4. Information.
Subject to the second paragraph of Section 6, you hereby represent and covenant that (a) all
written information other than the Projections and information of a general economic or industry
nature (the Information) that has been or will be made available to any Commitment Party by or on
behalf of you or any of your representatives, when taken as a whole, is or will be, when furnished,
complete and correct in all material respects and does not or will not, when furnished, contain any
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading in light of the circumstances under which
such statements are made (giving effect to all supplements and updates provided thereto) and (b)
the
Commitment Letter
4
Projections
that have been or will be made available to any Commitment Party by or on behalf of you or any of your representatives have been or will be
prepared in good faith based upon accounting principles consistent with the historical audited
financial statements of you and the Company and upon assumptions that are reasonable at the time
made and at the time the related Projections are made available to such Commitment Party (it being
understood that such Projections are subject to significant uncertainties and contingencies and
that no assurance can be given that any particular Projections will be realized). You agree that
if at any time prior to the later of (i) the Closing Date and (ii) the completion of a Successful
Syndication of the Facilities, any of the representations in the preceding sentence would be
incorrect if the Information and Projections were being furnished, and such representations were
being made, at such time, then you will promptly supplement the Information and the Projections so
that such representations will be correct under those circumstances. In arranging and syndicating
the Facilities, we will be entitled to use and rely primarily on the Information and the
Projections without responsibility for independent verification thereof.
5. Fees.
As consideration for the Initial Lenders respective commitments hereunder and our agreements
to perform the services described herein, you agree to pay, to the Commitment Parties, the fees set
forth in this Commitment Letter and in the Amended and Restated Facilities Fee Letter dated the
date hereof and delivered herewith with respect to the Facilities (the Facilities Fee Letter)
and, to the Agent, the fees set forth in the Agent Fee Letter dated as of March 25, 2011 and
previously delivered with respect to the Facilities (the Agent Fee Letter and, together with the
Facilities Fee Letter, the Fee Letters).
6. Conditions Precedent.
The Initial Lenders respective commitments hereunder and our agreements to perform the
services described herein, are subject to (a) except as set forth on Schedule 3.7 to the Purchase
Agreement as in effect on March 25, 2011, since December 31, 2010, there shall not have been,
individually or in the aggregate, a Company Material Adverse Effect (as defined below), (b) the
negotiation, execution and delivery of definitive documentation with respect to the Facilities
(including related collateral agreements) consistent with this Commitment Letter and the Fee
Letters and otherwise reasonably satisfactory to the Commitment Parties and (c) the other
conditions set forth in the section entitled Conditions Precedent to Initial Borrowing in the
First Lien Facilities Term Sheet, the section entitled Conditions Precedent to Borrowing in the
Second Lien Facility Term Sheet and Exhibit C to this Commitment Letter, and upon satisfaction (or
waiver by each of the Commitment Parties) of such conditions, the initial funding of the Facilities
shall occur.
Notwithstanding anything in this Commitment Letter (including each of the exhibits hereto),
the Fee Letters or the definitive documentation or any other agreement or undertaking related to
the Facilities to the contrary, (a) the only representations the accuracy of which shall be a
condition to the availability of the Facilities on the Closing Date, shall be (i) such of the
representations made by or on behalf of the Seller, the Company and its subsidiaries in the
Purchase Agreement as are material to the interests of the Lenders, but only to the extent that you
have (or an affiliate of yours has) the right (determined without regard to any notice requirement)
to terminate your (or its) obligations under the Purchase Agreement as a result of a breach of such
representations in the Purchase Agreement (to such extent, the Purchase Agreement
Representations) and (ii) the Specified Representations (as defined below) and
Commitment Letter
5
(b) the
terms of the definitive documentation for the Facilities shall be in a form such that they do not impair the
availability of the Facilities on the Closing Date if the conditions set forth or referred to
in the preceding paragraph are satisfied (it being understood that (A) other than with respect to
any UCC Filing Collateral or Stock Certificates (each as defined below), to the extent any
Collateral cannot be delivered, or a security interest therein cannot be perfected, on the Closing
Date after your use of commercially reasonable efforts to do so, the delivery of, or perfection of
a security interest in, such Collateral shall not constitute a condition precedent to the
availability of the Facilities on the Closing Date, but such Collateral shall instead be required
to be delivered, or a security interest therein perfected, after the Closing Date pursuant to
arrangements and timing to be mutually agreed by the parties hereto acting reasonably, (B) with
respect to perfection of security interests in UCC Filing Collateral, your sole obligation shall be
to deliver, or cause to be delivered, necessary UCC financing statements to the Agent and to
irrevocably authorize and to cause the applicable guarantor to irrevocably authorize the Agent to
file such UCC financing statements, (C) with respect to perfection of security interests in Stock
Certificates, your sole obligation shall be to deliver to the Agent or its legal counsel Stock
Certificates together with undated stock powers executed in blank and (D) except as expressly set
forth in the preceding clause (a) or (b), nothing in preceding clause (b) shall be construed to
limit the applicability of individual conditions expressly set forth in Section 6, in the section
entitled Conditions Precedent to Initial Borrowing in the First Lien Facilities Term Sheet, in
the section entitled Conditions Precedent to Borrowing in the Second Lien Facility Term Sheet or
in Exhibit C to this Commitment Letter. For purposes hereof, (1) UCC Filing Collateral means
Collateral consisting of assets of the Company, the Borrower and their respective subsidiaries for
which a security interest can be perfected by filing a Uniform Commercial Code financing statement,
(2) Stock Certificates means Collateral consisting of stock certificates representing capital
stock held by the Borrower and its subsidiaries required as Collateral pursuant to the Term Sheets
and (3) Specified Representations means the representations and warranties set forth in the Term
Sheets relating to corporate existence (subject to customary materiality thresholds), power and
authority, due authorization, execution and delivery, in each case as they relate to the entering
into and performance of the definitive documentation for the Facilities, the enforceability of such
documentation, Federal Reserve margin regulations, the PATRIOT Act, the Investment Company Act, no
conflicts between the definitive documentation for the Facilities and (x) the organization
documents of the Loan Parties, the Purchase Agreement or any Excluded Debt or (y) applicable law in
any material respect, status of the Facilities and the guarantees thereof as senior debt, solvency
as of the Closing Date (after giving effect to the Transactions) of the Borrower and its
subsidiaries on a consolidated basis and, subject to the limitations set forth in the prior
sentence, creation, validity, perfection and priority of security interests. This paragraph, and
the provisions herein, shall be referred to as the Limited Conditionality Provisions.
For purposes hereof, Company Material Adverse Effect means any change, development,
circumstance, effect, event or fact (a) that has, or would reasonably be expected to have, a
material adverse effect upon the financial condition, business, assets, liabilities or results of
operations of the Group Companies, taken as a whole or (b) would reasonably be expected to prevent
or materially impede or materially delay the performance in all material respects by the Seller
and/or the Company of their respective obligations under the Purchase Agreement or the consummation
of the transactions contemplated thereby; provided, however, that any adverse change, event or
effect arising from or related to: (i) conditions affecting the United States economy generally,
(ii) national or international political or social conditions, including the engagement by the
United States in hostilities, whether or not pursuant to the declaration of a national emergency or
war, or the occurrence of any military or terrorist attack upon the United States, or any of its
territories, possessions, or diplomatic or consular offices or upon any military installation,
equipment or personnel of the United
Commitment Letter
6
States,
(iii) changes after March 25, 2011 in financial,
banking or securities markets (including any disruption thereof and any decline in the
price of any security or any market index), (iv) changes after March 25, 2011 in GAAP, (v)
changes after March 25, 2011 in any Law or other binding directives issued by any Governmental
Entity, (vi) changes after March 25, 2011 that are generally applicable to the industries or
markets in which the Group Companies operate, (vii) the public announcement of the transactions
contemplated by the Purchase Agreement, (viii) any material failure by the Company to meet any
internal or published projections, forecasts or revenue or earnings predictions for any period
ending on or after the date of the Purchase Agreement; provided that any change, effect, event or
occurrence that caused or contributed to such failure to meet projections, forecasts or predictions
shall not be excluded pursuant to this clause (viii), (ix) the taking of any action contemplated by
the Purchase Agreement and the other agreements contemplated thereby, including the completion of
the transactions contemplated thereby, (x) any adverse change in or effect on the business of the
Group Companies that is cured prior to the Closing, or (xi) the matter set forth in Schedule I to
this Commitment Letter, shall not (for purposes of clause (a) of this definition) be taken into
account in determining whether a Company Material Adverse Effect has occurred; provided, further,
however, that any change, event or effect referred to in clauses (i) through (vi) may be taken into
account in determining whether or not there has been a Company Material Adverse Effect to the
extent such change, event or effect has a disproportionate adverse affect on the Group Companies,
taken as a whole, as compared to other participants in the industry in which the Group Companies
operate (in which case only the incremental disproportionate impact or impacts may be taken into
account in determining whether or not there has been or may be a Company Material Adverse
Effect). Solely for purposes of this paragraph, any capitalized terms used in the paragraph shall
have the same meaning as set forth in the Purchase Agreement as in effect on March 25, 2011.
7. Indemnification; Expenses.
You agree (a) to indemnify and hold harmless each Commitment Party and each of its affiliates
and their respective officers, directors, employees, agents, advisors, representatives, controlling
persons, members and successors and assigns (each, an Indemnified Person) from and against any
and all losses, claims, damages, liabilities and expenses, joint or several, to which any such
Indemnified Person may become subject arising out of or in connection with this Commitment Letter,
the Fee Letters, the Transactions, the Facilities or any related transaction or any claim,
litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any
such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a
third party or by you, the Company or any of your or their affiliates or equity holders), and to
reimburse each such Indemnified Person upon demand for any reasonable legal or other 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 to the extent they are found in a final, non-appealable judgment of
a court of competent jurisdiction to have resulted primarily from the willful misconduct or gross
negligence of such Indemnified Person, (b) to reimburse each Commitment Party from time to time,
upon presentation of a summary statement, for all reasonable out-of-pocket expenses (including, but
not limited to, expenses of such Commitment Partys due diligence investigation, consultants fees,
syndication expenses, travel expenses and fees, and disbursements and other charges of counsel)
incurred in connection with the Facilities and the preparation and negotiation of this Commitment
Letter, the Fee Letters, the definitive documentation for the Facilities and any ancillary
documents and security arrangements in connection therewith and (c) to reimburse each Commitment
Party from time to time, upon presentation of a summary statement, for all out-of-pocket expenses
(including, but not limited to, consultants fees, travel expenses and fees, and disbursements and
other charges of counsel) incurred in connection with the enforcement of this Commitment Letter,
the Fee Letters, the
definitive documentation for the Facilities and any ancillary documents and security
arrangements in connection therewith. You agree that, notwithstanding any other provision of this
Commitment Letter, no Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their
respective equity holders or creditors or any other person arising out of, related to or in
connection with any aspect of the Transactions, except to the extent of direct, as opposed to
special, indirect, consequential or punitive, damages determined in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such Indemnified Persons gross
negligence or willful misconduct.
Commitment Letter
7
8. Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.
You acknowledge that each Commitment Party may be providing debt financing, equity capital or
other services (including financial advisory services) to other companies in respect of which you
may have conflicting interests regarding the transactions described herein or otherwise. 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
any of us 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 any 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 any Commitment
Party, (c) you are capable of evaluating and understanding, and you understand and accept, the
terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you
have been advised that each Commitment Party is engaged in a broad range of transactions that may
involve interests that differ from your interests and that no Commitment Party has any obligation
to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency
relationship and (e) you waive, to the fullest extent permitted by law, any claims you may have
against any Commitment Party for breach of fiduciary duty or alleged breach of fiduciary duty and
agree that no Commitment Party shall have any liability (whether direct or indirect) to you in
respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf
of or in right of you, including your equity holders, employees or creditors. Additionally, you
acknowledge and agree that none of the Commitment Parties is advising you as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction (including, without limitation,
with respect to any consents needed in connection with the transactions contemplated hereby). You
shall consult with your own advisors concerning such matters and shall be responsible for making
your own independent investigation and appraisal of the transactions contemplated hereby
(including, without limitation, with respect to any consents needed in connection therewith), and
none of the Commitment Parties shall have any responsibility or liability to you with respect
thereto. Any review by any Commitment Party of you, the Company, the Transactions, the other
transactions contemplated hereby or other matters relating to such transactions will be performed
solely for the benefit of such Commitment Party and shall not be on behalf of you or any of your
affiliates.
You further acknowledge that each Commitment Party is a full-service securities firm engaged
in securities trading and brokerage activities as well as providing investment banking and other
financial services. In the ordinary course of business, a 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 its customers, equity, debt and other securities and
financial instruments (including bank loans and other obligations) of, you, the Company and other
companies with which you or the Company may have commercial or other relationships. With respect
to any securities and/or financial instruments so held by any Commitment Party 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.
Commitment Letter
8
9. Assignments; Amendments; Governing Law, Etc.
This Commitment Letter shall not be assignable by you without the prior written consent of
each of the Commitment Parties (and any attempted assignment without such consent shall be null and
void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons),
and is not intended to confer any benefits upon, or create any rights in favor of, any person other
than the parties hereto (and Indemnified Persons). Any and all obligations of, and services to be
provided by, any Commitment Party hereunder (including, without limitation, any Initial Lenders
commitment) may be performed and any and all rights of any Commitment Party hereunder may be
exercised by or through any of its respective affiliates or branches and, in connection with such
performance or exercise, such Commitment Party may exchange with such affiliates or branches
information concerning you and your affiliates that may be the subject of the transactions
contemplated hereby and, to the extent so employed, such affiliates and branches shall be entitled
to the benefits afforded to the Commitment Parties hereunder. This Commitment Letter may not be
amended or any provision hereof waived or modified except by an instrument in writing signed by
each of the Commitment Parties and you. This Commitment Letter may be executed in any number of
counterparts, each of which shall be an original and all of which, when taken together, shall
constitute one agreement. Delivery of an executed counterpart of a signature page of this
Commitment Letter by facsimile or other electronic transmission shall be effective as delivery of a
manually executed counterpart hereof. Section headings used herein are for convenience of
reference only, are not part of this Commitment Letter and are not to affect the construction of,
or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that
information and documents relating to the Facilities may be transmitted through SyndTrak,
Intralinks, the Internet, e-mail or similar electronic transmission systems, and that none of the
Commitment Parties shall be liable for any damages arising from the unauthorized use by others of
information or documents transmitted in such manner. Notwithstanding anything in Section 12 to the
contrary, any Commitment Party may place advertisements in financial and other newspapers and
periodicals or on a home page or similar place for dissemination of information on the Internet or
World Wide Web as it may choose, and circulate similar promotional materials, after the closing of
the Transactions in the form of a tombstone or otherwise describing the names of you, the Company
and your and its affiliates (or any of them), and the amount, type and closing date of such
Transactions, all at such Commitment Partys expense. This Commitment Letter and the Fee Letters
supersede all prior understandings, whether written or oral, between us with respect to the
Facilities. THIS COMMITMENT LETTER AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED
TO THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR
TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Commitment Letter
9
10. Jurisdiction.
Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and
its property, to the exclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in the Borough of Manhattan in New York City, and any appellate
court from any thereof, in any suit, action or proceeding arising out of or relating to this
Commitment Letter, the Fee Letters or the transactions contemplated hereby or thereby, and agrees
that all claims in respect of any such suit, action or proceeding may be heard and determined only
in such New York State court or, to the extent permitted by law, in such Federal court; provided
that suit for the recognition or enforcement of any judgment obtained in any such New York State or
Federal court may be brought in any other court of competent jurisdiction, (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 Letters or the transactions contemplated hereby or thereby in any New
York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any
such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Service of any process, summons, notice or document by registered mail
addressed to you at the address above shall be effective service of process against you for any
suit, action or proceeding brought in any such court.
11. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF
THIS COMMITMENT LETTER, ANY FEE LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.
12. Confidentiality.
This Commitment Letter is delivered to you on the understanding that neither this Commitment
Letter nor the Fee Letters nor any of their terms or substance, nor the activities of any
Commitment Party pursuant hereto, shall be disclosed, directly or indirectly, to any other person
except (a) if the Commitment Parties agree in writing to such proposed disclosure, (b) to your
officers, directors, employees, attorneys, accountants and advisors on a confidential and
need-to-know basis or (c) pursuant to the order of any court or administrative agency in any
pending or legal administrative proceeding or otherwise as required by applicable law or compulsory
legal process or to the extent requested or required by governmental and/or regulatory authorities,
in each case based on the reasonable advice of your legal counsel (in which case, to the extent
permitted by law, you agree to inform us promptly thereof prior to such disclosure); provided that
(i) you may disclose this Commitment Letter and the contents hereof (but not any Fee Letter or the
contents thereof) in any proxy or other public filing relating to the Transactions, (ii) you may
disclose the Term Sheets to rating agencies in connection with obtaining ratings for you and the
Facilities, (iii) you may disclose the fees contained in this Commitment Letter and in the Fee
Letters as part of a generic disclosure of aggregate sources and uses related to fee amounts to the
extent customary or required in marketing materials, any proxy or other public filing or any
prospectus or other offering memorandum and (iv) you may disclose this Commitment Letter and the
contents hereof and, to the extent portions thereof have been redacted in a manner to be mutually
agreed upon, the Fee Letters, to the Company and the Seller
and their respective officers, directors, employees, attorneys, accountants and advisors on a
confidential and need-to-know basis.
Commitment Letter
10
Each Commitment Party will treat as confidential all confidential information provided to it
by or on behalf of you hereunder; provided that nothing herein shall prevent it 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 compulsory legal
process, (b) upon the request or demand of any regulatory authority having jurisdiction over such
Commitment Party, (c) to the extent that such information becomes publicly available other than by
reason of disclosure by any Commitment Party in violation of this paragraph, (d) to such Commitment
Partys affiliates and to its and their respective employees, legal counsel, independent auditors
and other experts or agents who are informed of the confidential nature of such information, (e) to
actual or potential assignees, participants or derivative investors in the Facilities who agree to
be bound by the terms of this paragraph or substantially similar confidentiality provisions, (f) to
the extent permitted by Section 9 or (g) for purposes of establishing a due diligence defense.
Notwithstanding anything herein to the contrary, any party to this Commitment Letter (and any
employee, representative or other agent of such party) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transactions contemplated by
this Commitment Letter and the Fee Letters and all materials of any kind (including opinions or
other tax analyses) that are provided to it relating to such tax treatment and tax structure,
except that (i) tax treatment and tax structure shall not include the identity of any existing or
future party (or any affiliate of such party) to this Commitment Letter or the Fee Letters and (ii)
no party shall disclose any information relating to such tax treatment and tax structure to the
extent nondisclosure is reasonably necessary in order to comply with applicable securities laws.
For this purpose, the tax treatment of the transactions contemplated by this Commitment Letter and
the Fee Letters is the purported or claimed U.S. Federal income tax treatment of such transactions
and the tax structure of such transactions is any fact that may be relevant to understanding the
purported or claimed U.S. Federal income tax treatment of such transactions.
13. Surviving Provisions.
The compensation, reimbursement, indemnification, confidentiality, syndication, jurisdiction,
governing law and waiver of jury trial provisions contained herein and in the Fee Letters and the
provisions of Section 8 of this Commitment Letter shall remain in full force and effect regardless
of whether definitive financing documentation shall be executed and delivered and (other than in
the case of the syndication provisions) notwithstanding the termination of this Commitment Letter
or the Initial Lenders commitments hereunder and our agreements to perform the services described
herein.
14. PATRIOT Act Notification.
Each Commitment Party hereby notifies you that, pursuant to the requirements of the USA
PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the PATRIOT Act),
such Commitment Party and each Lender is required to obtain, verify and record information that
identifies the Borrower and each guarantor, which information includes the name, address, tax
identification number and other information regarding the Borrower and each guarantor that will
allow such Commitment Party or such Lender to identify the Borrower and each guarantor in
accordance with the PATRIOT Act. This notice is given in accordance
with the requirements of the PATRIOT Act and is effective as to each Commitment Party and each
Lender. You hereby acknowledge and agree that each Commitment Party shall be permitted to share
any or all such information with the Lenders.
Commitment Letter
11
15. Acceptance and Termination.
If the foregoing correctly sets forth our agreement with you, please indicate your acceptance
of the terms of this Commitment Letter and of the Facilities Fee Letter by returning to us executed
counterparts hereof and of the Facilities Fee Letter not later than 5:00 p.m., New York City time,
on April 25, 2011. The Initial Lenders offer hereunder, and the agreements of the Commitment
Parties to perform the services described herein, will expire automatically and without further
action or notice and without further obligation to you at such time in the event that the
Commitment Parties have not received such executed counterparts in accordance with the immediately
preceding sentence. This Commitment Letter will become a binding commitment on each Initial Lender
only after it has been duly executed and delivered by you in accordance with the first sentence of
this Section 15. Thereafter, the commitments and other obligations of each Commitment Party and
Initial Lender hereunder shall automatically terminate without further action or notice and without
further obligations to you, unless each Commitment Party and Initial Lender shall in its sole
discretion agree to an extension, upon the earliest to occur of (i) the termination of the Purchase
Agreement in accordance with its terms (unless such termination results from the occurrence of the
Termination Date (as defined in, and as may be extended in accordance with, Section 8.1 of the
Purchase Agreement)), (ii) the closing of the Acquisition without the use of any of the Facilities,
(iii) the date which is 30 days after the Termination Date (as defined in, and as may be extended
in accordance with, Section 8.1 of the Purchase Agreement) and (iv) September 30, 2011.
[Remainder of this page intentionally left blank]
Commitment Letter
12
The Commitment Parties are pleased to have been given the opportunity to assist you in
connection with the financing for the Acquisition.
Very truly yours, CREDIT SUISSE SECURITIES (USA) LLC |
||||
By | ||||
Name: | ||||
Title: |
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
||||
By | ||||
Name: | ||||
Title: |
By | ||||
Name: | ||||
Title: |
THE ROYAL BANK OF SCOTLAND PLC |
||||
By | ||||
Name: | ||||
Title: |
RBS SECURITIES INC. |
||||
By | ||||
Name: | ||||
Title: |
Commitment Letter
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
||||
By | ||||
Name: | ||||
Title: |
BANK OF AMERICA, N.A. |
||||
By | ||||
Name: | ||||
Title: |
MORGAN STANLEY SENIOR FUNDING, INC. |
||||
By | ||||
Name: | ||||
Title: |
Commitment Letter
Accepted and agreed to as of the date first above written: |
||||
WALTER INVESTMENT MANAGEMENT CORP. | ||||
By |
||||
Title: |
Commitment Letter
EXHIBIT A
PROJECT CARDINAL
$545,000,000 First Lien Senior Secured Credit Facilities
Summary of Principal First Lien Terms and Conditions
$545,000,000 First Lien Senior Secured Credit Facilities
Summary of Principal First Lien Terms and Conditions
Borrower: | Walter Investment Management
Corp., a Maryland corporation (the
Borrower). |
|||
Transactions: | The Borrower intends to acquire
(the Acquisition) GTCS Holdings
LLC, a Delaware limited liability
company (the Company), pursuant
to a membership interest purchase
agreement dated as of March 25,
2011 (as in effect on March 25,
2011, the Purchase Agreement)
among the Borrower, the Company
and GTH LLC, a Delaware limited
liability company (the Seller).
In connection with the
Acquisition, (a) the Borrower will
acquire the Company from the
Seller with the Seller receiving
an aggregate amount of cash and
stock in accordance with the
Purchase Agreement (the
Acquisition Consideration), (b)
the Borrower will obtain the
senior secured credit facilities
described below under the caption
First Lien Facilities, (c) the
Borrower will borrow up to
$265,000,000 in aggregate
principal amount of second lien
term loans (the Second Lien Term
Loans) under a new credit
facility described in Exhibit B to
the Commitment Letter (the Second
Lien Term Facility), (d) all the
existing indebtedness of the
Borrower and its subsidiaries and
the Company and its subsidiaries
outstanding as of the Closing Date
other than the Excluded Debt (as
defined in Exhibit C) (the
Existing Debt) shall be repaid
and (e) fees and expenses incurred
in connection with the foregoing
(the Transaction Costs) will be
paid. The transactions described
in this paragraph are collectively
referred to herein as the
Transactions. |
|||
Agent: | Credit Suisse AG, acting through
one or more of its branches or
affiliates (CS), will act as
sole administrative agent and
collateral agent (collectively, in
such capacities, the Agent) for
a syndicate of banks, financial
institutions and other
institutional lenders (together
with the Initial Lenders, the
Lenders), and will perform the
duties customarily associated with
such roles. |
|||
Joint Lead Arrangers: | Credit Suisse Securities (USA) LLC
and RBS Securities Inc. will act
as joint lead arrangers for the
First Lien Facilities described
below (collectively, in such
capacities, the Arrangers), and
will perform the duties
customarily associated with such
roles. |
First Lien Facilities Term Sheet
Joint Bookrunners | Credit Suisse Securities (USA)
LLC, RBS Securities Inc. and
Merrill Lynch, Pierce, Fenner &
Smith Incorporated will act as
joint bookrunners for the First
Lien Facilities (collectively, in
such capacities, the
Bookrunners), and will perform
the duties customarily associated
with such roles. |
|||
Syndication Agent: | The Royal Bank of Scotland plc
will act as syndication agent for
the First Lien Facilities (in
such capacity, the Syndication
Agent). |
|||
Co-Documentation Agents: | Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Morgan
Stanley Senior Funding, Inc. will
act as co-documentation agents for
the First Lien Facilities
(collectively, in such capacities,
the Co-Documentation Agents). |
|||
First Lien Facilities: | (A) | A senior secured term loan
facility in an aggregate principal
amount of up to $500,000,000 (the
First Lien Term Facility). |
||
(B) | A senior secured revolving credit
facility in an aggregate principal
amount of up to $45,000,000 (the
Revolving Facility and, together
with the First Lien Term Facility,
the First Lien Facilities), of
which up to an aggregate amount to
be agreed upon will be available
through a subfacility in the form
of letters of credit. |
|||
Purpose: | The proceeds of the First Lien
Term Facility will be used by the
Borrower, on the date of the
initial borrowing thereunder (the
Closing Date), together with the
proceeds of the Second Lien Term
Loans and cash on the Borrowers
and Companys balance sheet,
solely (a) to pay the Acquisition
Consideration, (b) to refinance
the Existing Debt and (c) to pay
the Transaction Costs. |
|||
(B) | The proceeds of loans under the
Revolving Facility will be used by
the Borrower on the Closing Date
in an amount to be agreed and from
time to time thereafter to (a) pay
the Acquisition Consideration, (b)
to pay Transaction Costs and (c)
for general corporate purposes. |
|||
(C) | Letters of credit will be used
solely to support payment
obligations incurred in the
ordinary course of business by the
Borrower and its subsidiaries. |
|||
Availability: | (A) | The full amount of the First Lien
Term Facility must be drawn in a
single drawing on the Closing
Date. Amounts borrowed under the
First Lien Term Facility that are
repaid or prepaid may not be
reborrowed. |
First Lien Facilities Term Sheet
A-2
(B) | Not more than an amount to be
agreed upon of loans under the
Revolving Facility shall be made
on the Closing Date. Thereafter,
loans under the Revolving Facility
will be available at any time
prior to the final maturity of the
Revolving Facility, in minimum
principal amounts and upon notice
to be agreed upon. Amounts repaid
under the Revolving Facility may
be reborrowed. |
|||
Interest Rates and Fees: | As set forth on Annex A-I hereto. |
|||
Default Rate: | Interest will accrue on past-due
amounts at the applicable interest
rate plus 2.0% per annum. |
|||
Letters of Credit: | Letters of credit under the
Revolving Facility will be issued
by CS or another Lender acceptable
to the Borrower and the Agent (the
Issuing Bank). Each letter of
credit shall expire not later than
the earlier of (a) 12 months after
its date of issuance and (b) the
fifth business day prior to the
final maturity of the Revolving
Facility; provided, however, that
any letter of credit may provide
for renewal thereof for additional
periods of up to 12 months (which
in no event shall extend beyond
the date referred to in clause (b)
above). |
|||
Drawings under any letter of
credit shall be reimbursed by the
Borrower on the same business day.
To the extent that the Borrower
does not reimburse the Issuing
Bank on the same business day, the
Lenders under the Revolving
Facility shall be irrevocably
obligated to reimburse the Issuing
Bank pro rata based upon their
respective Revolving Facility
commitments. |
||||
The issuance of all letters of
credit shall be subject to the
customary procedures of the
Issuing Bank. |
||||
Final Maturity and Amortization: | (A) | First Lien Term Facility The First Lien Term Facility will mature on the earlier of (x) the date that is five years after the Closing Date and (y) June 30, 2016 and will amortize in equal quarterly installments in an aggregate annual amount equal to 10% of the original principal amount of the First Lien Term Facility with the balance payable on the maturity date of the First Lien Term Facility. |
||
(B) | Revolving Facility The Revolving Facility will mature and the commitments thereunder will terminate on the earlier of (x) the date that is five years after the Closing Date and (y) June 30, 2016. |
First Lien Facilities Term Sheet
A-3
Guarantees: | All obligations of the Borrower
under the First Lien Facilities
and under any interest rate
protection or other hedging
arrangements entered into with the
Agent, any Arranger, an entity
that is a Lender at the time of
such transaction or any affiliate
of any of the foregoing (Hedging
Arrangements) will be
unconditionally guaranteed (the
Guarantees) by each existing and
subsequently acquired or organized
domestic subsidiary of the
Borrower, other than (x) any
special purpose vehicle, trust or
other similar entity in existence
on March 25, 2011 and (y) other
subsidiaries to be mutually agreed
upon (the Subsidiary Guarantors
and, together with the Borrower,
the Loan Parties). |
|
Security: | The First Lien Facilities, the
Guarantees and any Hedging
Arrangements will be secured by
substantially all the assets of
the Borrower and each Subsidiary
Guarantor, whether owned on the
Closing Date or thereafter
acquired (collectively, the
Collateral), including but not
limited to: (a) a perfected first
priority pledge of all the equity
interests held by the Borrower or
any Subsidiary Guarantor (which
pledge, in the case of any foreign
subsidiary, shall be limited to
100% of the non-voting equity
interests (if any) and 66% of the
voting equity interests of such
foreign subsidiary) and (b)
perfected first-priority security
interests in, and mortgages on,
substantially all tangible and
intangible assets of the Borrower
and each Subsidiary Guarantor
(including but not limited to
accounts receivable, inventory,
equipment, general intangibles,
investment property, intellectual
property, real property, cash,
deposit and securities accounts,
commercial tort claims, letter of
credit rights, intercompany notes
and proceeds of the foregoing). |
|
Subject to the Limited
Conditionality Provisions, all the
above-described pledges, security
interests and mortgages shall be
created on terms, and pursuant to
documentation, satisfactory to the
Lenders (including, in the case of
real property, by customary items
such as satisfactory title
insurance and surveys), and none
of the Collateral shall be subject
to any other liens (other than the
second priority security interests
in favor of the lenders under the
Second Lien Term Facility),
subject to customary exceptions to
be agreed upon. |
First Lien Facilities Term Sheet
A-4
Notwithstanding the foregoing, the
Collateral shall not include: (i)
amounts collected from borrowers
in connection with the servicing
of loans to the extent required to
be turned over to the holders of
such loans, (ii) servicing rights
relating to mortgage loans owned
or controlled by an independent
third party financing source
(including government sponsored
enterprises) (Pledged MSR) and
subject to liens securing existing
and future permitted indebtedness
incurred by a subsidiary of the
Borrower from such third party
financing source to purchase such
servicing rights (MSR Purchase
Money Lines), (iii) mortgage
loans and related assets subject
to repurchase agreements to the
extent such repurchase agreements
constitute permitted indebtedness
under the definitive documentation
in respect of the First Lien
Facilities, (iv) vehicles and
leaseholds, (v) contracts with an
unaffiliated third party that
contain a valid and enforceable
prohibition on assignment, but
only so long as such prohibition
exists and the Borrower shall have
used commercially reasonable
efforts to obtain the consent of
the counterparty to the grant of
the liens contemplated herein,
(vi) equipment subject to certain
permitted liens (to the extent the
liens and security interests of
the Agent and the Lenders are not
permitted by the applicable
permitted lien), (vii) payroll
accounts, trust accounts, accounts
solely holding cash for the
benefit of third parties and other
accounts to be agreed, (viii)
pledges and security interests
prohibited by any effective
applicable law and (ix) any asset
to the extent the cost of
obtaining a security interest
thereon would, in the reasonably
determination of the Agent, be
excessive in relation to the
benefit thereof. |
||
Intercreditor Arrangements: | The liens securing the Second Lien
Term Facility will be second in
priority to the liens securing the
First Lien Facilities and the
liens securing any Hedging
Arrangements. The priority of the
security interests in the
Collateral and related creditors
rights will be set forth in
customary intercreditor provisions
included in the collateral
documents (the Intercreditor
Agreement). The Intercreditor
Agreement will contain, among
other things, customary agreements
between the holders of the
obligations under the First Lien
Facilities and the holders of the
obligations under the Second Lien
Term Facility with regard to (and
with customary exceptions) (i) the
subordination of the liens
securing the Second Lien Term
Facility, (ii) the right of the
holders of obligations under the
First Lien Facilities to control
the enforcement of remedies with
respect to Collateral, subject to
a standstill period, and to
control the release of Collateral,
(iii) the agreement of the holders
of obligations under the Second
Lien Term Facility to hold in
trust and turn over to the holders
of the obligations under the First
Lien Facilities proceeds received
from Collateral and (iv) the
agreement of the holders of
obligations under the Second Lien
Term Facility not to oppose
certain DIP financings unless the
holders of obligations under the
First Lien Facilities shall have
opposed such DIP financings. |
First Lien Facilities Term Sheet
A-5
Mandatory Prepayments: | Loans under the First Lien Term
Facility and the Second Lien Term
Facility shall be prepaid in
accordance with the waterfall
provisions described in the
following paragraphs with (a) 50%
of Excess Cash Flow (to be
defined), with a reduction to be
agreed upon based upon achievement
and maintenance of a leverage
ratio to be agreed upon, (b) 100%
of the net cash proceeds of all
asset sales or other dispositions
of property by the Borrower and
its subsidiaries (including
proceeds from the sale of equity
securities of any subsidiary of
the Borrower and insurance and
condemnation proceeds) (subject to
customary exceptions and
reinvestment provisions to be
agreed upon), (c) 100% of the net
cash proceeds of issuances,
offerings or placements of debt
obligations of the Borrower and
its subsidiaries (subject to
customary exceptions to be agreed
upon) and (d) 50% of the net cash
proceeds of issuances of equity
securities of the Borrower and its
subsidiaries (subject to customary
exceptions to be agreed upon),
with a reduction to be agreed upon
based upon achievement and
maintenance of a leverage ratio to
be agreed upon. |
|
The above-described mandatory
prepayments shall be applied pro
rata to the remaining amortization
payments under the First Lien Term
Facility, and, when there are no
longer outstanding loans under the
First Lien Term Facility, to
mandatory prepayments of the
Second Lien Term Facility. |
||
Voluntary Prepayments and Reductions in Commitments: | Voluntary reductions of the
unutilized portion of the
commitments under the First Lien
Facilities and prepayments of
borrowings thereunder will be
permitted at any time, in minimum
principal amounts to be agreed
upon, subject to the payment of
any applicable prepayment premium
(as set forth under the heading
Prepayment Premium in Annex A-I
attached hereto) and subject to
reimbursement of the Lenders
redeployment costs in the case of
a prepayment of Adjusted LIBOR
borrowings other than on the last
day of the relevant interest
period. All voluntary prepayments
of the First Lien Term Facility
will be applied pro rata to the
remaining amortization payments
under the First Lien Term
Facility. |
First Lien Facilities Term Sheet
A-6
Representations and Warranties: | Usual for facilities and
transactions of this type and
others to be reasonably specified
by the Agent, including, without
limitation, corporate status;
legal, valid and binding
documentation; no consents;
accuracy of financial statements,
confidential information
memorandum and other information;
no material adverse change;
absence of undisclosed
liabilities, litigation and
investigations; no violation of,
or conflicts with, agreements or
instruments; compliance with laws
(including the PATRIOT Act, ERISA,
margin regulations, environmental
laws, laws applicable to
sanctioned persons and the Foreign
Corrupt Practices Act); payment of
taxes; ownership of properties;
intellectual property;
inapplicability of the Investment
Company Act or other regulatory
schemes limiting ability to incur
debt; solvency; effectiveness of
governmental approvals; labor
matters; environmental and other
regulatory matters; maintenance of
corporate separateness; servicing
agreements; validity, priority and
perfection of security interests
in the Collateral; and treatment
as senior debt under all
subordinated debt and, together
with debt under the Second Lien
Term Facility, as sole designated
senior debt thereunder. |
|
Conditions Precedent to Initial Borrowing: | The initial borrowing under the
First Lien Facilities will be
subject to the applicable
conditions precedent set forth in
Section 6 of the Commitment
Letter, in Conditions Precedent
to All Borrowings below, and in
Exhibit C to the Commitment
Letter. |
|
Conditions Precedent to All Borrowings: | Delivery of notice, accuracy of
representations and warranties
(subject to the Limited
Conditionality Provisions), and
absence of defaults (provided
that, in the case of the Closing
Date only, such defaults shall be
limited to (x) cross-default to
Excluded Debt referred to in
clauses (c)(i), (c)(ii) and
(c)(iii) of paragraph 3 in Exhibit
C to the Commitment Letter and any
other indebtedness (excluding
non-recourse indebtedness of
securitization trusts) with an
aggregate principal amount or
termination or settlement value
(as applicable) of at least
$20,000,000 (collectively,
Material Debt) as a result of a
payment default, (y) cross-default
to Excluded Debt referred to in
clause (c)(ii) of paragraph 3 in
Exhibit C to the Commitment Letter
as a result of any breach of a
financial covenant or the
occurrence of any termination
event or event of default as a
result of any failure to meet any
specified financial condition or
financial requirement thereunder
and (z) cross-acceleration to
Material Debt). |
First Lien Facilities Term Sheet
A-7
Affirmative Covenants: | Usual for facilities and
transactions of this type and
others to be reasonably specified
by the Agent (to be applicable to
the Borrower and its
subsidiaries), including, without
limitation, maintenance of
corporate existence and rights;
performance of obligations;
delivery of consolidated financial
statements and other information,
including information required
under the PATRIOT Act; delivery of
notices of default under the First
Lien Facilities, default under
servicing agreements, call
options, historical performance of
delinquent accounts, litigation,
ERISA events and material adverse
change; maintenance of properties
in good working order; maintenance
of satisfactory insurance; use of
commercially reasonable efforts to
maintain a public corporate credit
rating from Standard & Poors
Ratings Service (S&P) and a
public corporate family rating
from Moodys Investors Service,
Inc. (Moodys), in each case
with respect to the Borrower, and
a public rating of the First Lien
Facilities by each of S&P and
Moodys; compliance with laws;
inspection of books and
properties; changes in fiscal
periods; certain required
dividends; hedging arrangements
satisfactory to the Agent; further
assurances; and payment of taxes. |
|
Negative Covenants: | Usual for facilities and
transactions of this type and
others to be reasonably specified
by the Agent (to be applicable to
the Borrower and its
subsidiaries), including, without
limitation, limitations on
dividends on, and redemptions and
repurchases of, equity interests
and other restricted payments;
limitations on prepayments,
redemptions and repurchases of
debt (other than (i) loans under
the First Lien Facilities and (ii)
prepayments of loans under the
Second Lien Term Facility as
described under the caption
Mandatory Prepayments above);
limitations on liens and
sale-leaseback transactions (other
than liens on (x) receivables and
related assets of a subsidiary
acquired with the proceeds of
Servicer Advance Line Debt of such
subsidiary and securing such
Servicer Advance Line Debt, (y)
servicing rights of a subsidiary
acquired with the proceeds of MSR
Purchase Money Lines of such
subsidiary and securing such MSR
Purchase Money Lines and (z) liens
on mortgage loans to the extent
they constitute permitted
indebtedness under the definitive
documentation in respect of the
First Lien Facilities);
limitations on loans and
investments; limitations on debt,
guarantees and hedging
arrangements (other than (w)
current or future permitted
non-recourse servicer advance line
debt incurred by a special purpose
subsidiary and certain related
contingent obligations (Servicer
Advance Line Debt), (x) MSR
Purchase Money Lines, (y) mortgage
loans entered into for purposes of
warehousing and (z) certain
non-recourse debt, in each case on
terms to be agreed); limitations
on mergers, acquisitions and asset
sales; limitations on transactions
with affiliates; limitations on
changes in business conducted by
the Borrower and its subsidiaries;
absence of government regulation;
limitations on activities of
special purpose entities;
limitations on restrictions on
ability of subsidiaries to pay
dividends or make distributions;
limitations on amendments of debt
and other material agreements; and
limitations on capital
expenditures. |
First Lien Facilities Term Sheet
A-8
Selected Financial Covenants: | Usual for facilities and
transactions of this type (with
financial definitions, levels and
measurement periods to be agreed
upon), including, without
limitation: (a) maximum ratios of
Total Debt to EBITDA; and (b)
minimum interest coverage ratios. |
|
Events of Default: | Usual for facilities and
transactions of this type and
others to be reasonably specified
by the Agent relating to the
Borrower and its subsidiaries
(subject, where appropriate, to
customary thresholds and grace
periods to be agreed upon),
including, without limitation,
nonpayment of principal, interest
or other amounts; violation of
covenants; incorrectness of
representations and warranties in
any material respect; cross
default and cross acceleration;
bankruptcy; material judgments;
ERISA events; actual or asserted
invalidity of Guarantees, the
Intercreditor Agreement or
security documents; and Change of
Control (to be defined). |
|
Voting: | Amendments and waivers of the
definitive credit documentation
will require the approval of
Lenders holding more than 50% of
the aggregate amount of the loans
and commitments under the First
Lien Facilities (the Required
Lenders) (with certain amendments
and waivers also requiring class
votes), except that (a) the
consent of each affected Lender
shall be required with respect to
(i) increases in the commitment of
such Lender, (ii) reductions or
forgiveness of principal,
interest, fees or reimbursement
obligations payable to such
Lender, (iii) extensions of final
maturity or scheduled amortization
of the loans or commitments of
such Lender or of the date for
payment to such Lender of any
interest, fees or reimbursement
obligations payable to such
Lender, and (iv) changes that
impose any additional restriction
on such Lenders ability to assign
any of its rights or obligations,
(b) the consent of each Lender
shall be required with respect to
(i) modification to voting
requirements or percentages, (ii)
modification to certain provisions
requiring the pro rata treatment
of lenders, and (iii) releases of
all or substantially all of the
value of the Guarantees, or all or
substantially all of the
Collateral and (c) the consent of
the Issuing Bank shall be required
with respect to amendments and
waivers affecting its rights or
duties. |
First Lien Facilities Term Sheet
A-9
Cost and Yield Protection: | Usual for facilities and
transactions of this type,
including customary tax gross-up
provisions. |
|
Assignments and Participations: | The Lenders will be permitted to
assign (a) loans under the First
Lien Term Facility without the
consent of (but with notice to)
the Borrower and (b) loans and
commitments under the Revolving
Facility with the consent of the
Borrower and the Issuing Bank, in
each case not to be unreasonably
withheld or delayed; provided that
such consent of the Borrower (x)
shall not be required (i) if such
assignment is made to another
Lender under the Revolving
Facility or an affiliate or
approved fund of any such Lender,
(ii) during the primary
syndication of the loans and
commitments under the First Lien
Facilities or (iii) after the
occurrence and during the
continuance of an event of default
and (y) shall be deemed to have
been given if the Borrower has not
responded within five business
days of a request for such
consent. All assignments will
also require the consent of the
Agent, not to be unreasonably
withheld or delayed. Each
assignment will be in an amount of
an integral multiple of
$1,000,000. Assignments will be
by novation and will not be
required to be pro rata between
the First Lien Facilities. |
First Lien Facilities Term Sheet
A-10
The Lenders will be permitted to
sell participations in loans and
commitments without restriction.
Voting rights of participants
shall be limited to matters in
respect of (a) increases in
commitments of such participant,
(b) reductions or forgiveness of
principal, interest or fees
payable to such participant, (c)
extensions of final maturity or
scheduled amortization of, or the
date for payment of interest or
fees on, the loans or commitments
in which such participant
participates and (d) releases of
all or substantially all of the
value of the Guarantees, or all or
substantially all of the
Collateral. |
||
Defaulting Lenders: | Usual for facilities and
transactions of this type,
including the provision of cash
collateral as reasonably
determined by the Agent. |
|
If any Lender becomes a defaulting
Lender, then the letter of credit
exposure of such defaulting Lender
will automatically be reallocated
among the non-defaulting Lenders
pro rata in accordance with their
commitments under the Revolving
Facility up to an amount such that
the revolving credit exposure of
such non-defaulting Lender does
not exceed its commitments. In
the event that such reallocation
does not fully cover the letter of
credit exposure of such defaulting
Lender, the Issuing Bank may
require the Borrower to cash
collateralize such uncovered
exposure in respect of each
outstanding letter of credit and
will have no obligation to issue
new letters of credit, or to
extend, renew or amend existing
letters of credit to the extent
letter of credit exposure would
exceed the commitments of the
non-defaulting Lenders, unless
such uncovered exposure is cash
collateralized to the Issuing
Banks reasonable satisfaction. |
First Lien Facilities Term Sheet
A-11
Expenses and Indemnification: | The Borrower will indemnify each
Arranger, each Bookrunner, the
Agent, the Syndication Agent, each
Co-Documentation Agent, the
Lenders, the Issuing Bank, their
respective affiliates, successors
and assigns and the officers,
directors, employees, agents,
advisors, controlling persons and
members of each of the foregoing
(each, an Indemnified Person)
and hold them harmless from and
against all costs, expenses
(including reasonable fees,
disbursements and other charges of
counsel) and liabilities of such
Indemnified Person arising out of
or relating to any claim or any
litigation or other proceeding
(regardless of whether such
Indemnified Person is a party
thereto and regardless of whether
such matter is initiated by a
third party or by the Borrower,
the Company or any of their
respective affiliates or equity
holders) that relates to the
Transactions, including the
financing contemplated hereby, the
Acquisition or any transactions in
connection therewith, provided
that no Indemnified Person will be
indemnified for any cost, expense
or liability to the extent
determined in the final,
non-appealable judgment of a court
of competent jurisdiction to have
resulted primarily from its gross
negligence or willful misconduct.
In addition, the Borrower shall
pay (a) all reasonable
out-of-pocket expenses (including,
without limitation, reasonable
fees, disbursements and other
charges of counsel) of each
Arranger, each Bookrunner, the
Agent, the Syndication Agent, each
Co-Documentation Agent and the
Issuing Bank in connection with
the syndication of the First Lien
Facilities, the preparation and
administration of the definitive
documentation, and amendments,
modifications and waivers thereto
and (b) all out-of-pocket expenses
(including, without limitation,
fees, disbursements and other
charges of counsel) of the
Arrangers, each Bookrunner, the
Agent, the Syndication Agent, each
Co-Documentation Agent, the
Issuing Bank and the Lenders for
enforcement costs and documentary
taxes associated with the First
Lien Facilities. |
|
Governing Law and Forum: | New York. |
|
Counsel to Agent: | Davis Polk & Wardwell LLP. |
First Lien Facilities Term Sheet
A-12
ANNEX A-I
Interest Rates: | At the option of the Borrower,
Adjusted LIBOR plus 5.25% or
ABR plus 4.25%. |
|
The Borrower may elect interest
periods of one, two, three or
six months for Adjusted LIBOR
borrowings. |
||
Calculation of interest shall
be on the basis of the actual
number of days elapsed over a
360-day year (or 365- or
366-day year, as the case may
be, in the case of ABR loans
based on the Prime Rate) and
interest shall be payable at
the end of each interest period
and, in any event, at least
every three months. |
||
ABR is the Alternate Base Rate,
which is the highest of (i)
CSs Prime Rate, (ii) the
Federal Funds Effective Rate
plus 1/2 of 1.0% and (iii)
one-month Adjusted LIBOR plus
1.0%. |
||
Adjusted LIBOR will at all
times include statutory
reserves and shall be deemed to
be not less than 1.50% per
annum. |
||
Letter of Credit Fees: | A per annum fee equal to the
spread over Adjusted LIBOR
under the Revolving Facility
will accrue on the aggregate
face amount of outstanding
letters of credit under the
Revolving Facility, payable in
arrears at the end of each
quarter and upon the
termination of the Revolving
Facility, in each case for the
actual number of days elapsed
over a 360-day year. Such fees
shall be distributed to the
Lenders participating in the
Revolving Facility pro rata in
accordance with the amount of
each such Lenders Revolving
Facility commitment. In
addition, the Borrower shall
pay to the Issuing Bank, for
its own account, (a) a fronting
fee equal to a percentage per
annum to be agreed upon of the
aggregate face amount of
outstanding letters of credit,
payable in arrears at the end
of each quarter and upon the
termination of the Revolving
Facility, calculated based upon
the actual number of days
elapsed over a 360-day year,
and (b) customary issuance and
administration fees. |
|
Commitment Fees: | 0.75% per annum on the undrawn
portion of the commitments in
respect of the Revolving
Facility, payable quarterly in
arrears after the Closing Date
and upon the termination of the
commitments, calculated based
on the actual number of days
elapsed over a 360-day year. |
First Lien Facilities Term Sheet
Original Issue Discount/Upfront Fees: |
An upfront fee equal to 1.00%
of the aggregate commitments
under the Revolving Facility
will be payable by the Borrower
on the Closing Date for the
account of the Lenders
participating in the Revolving
Facility. The loans under the
First Lien Term Facility will
be issued to the Lenders
participating in the First Lien
Term Facility at a price of
99.00% of their principal
amount. Notwithstanding the
foregoing, (a) all calculations
of interest and fees in respect
of the First Lien Facilities
will be calculated on the basis
of their full stated principal
amount and (b) at the option of
the Arrangers, any original
issue discount may instead be
effected in the form of an
upfront fee payable to the
Lenders. |
|
Prepayment Premium: | 1% upon any prepayment of or
amendment to the First Lien
Term Facility occurring on or
prior to the first anniversary
of the Closing Date in
connection with a Repricing
Transaction (as defined below). |
|
As used herein Repricing
Transaction means the
prepayment or refinancing of
all or any portion of the First
Lien Term Facility
substantially concurrently with
the incurrence by the Borrower
or any affiliate thereof of any
indebtedness having a lower
cost financing than, or any
amendment to the First Lien
Term Facility that has the
effect of reducing effective
yield (taking into account, for
example, the interest rate
margin, any interest rate floor
and original issue discount)
then applicable to, the First
Lien Term Facility (including
any mandatory assignment in
connection therewith). |
First Lien Facilities Term Sheet
A-I-2
CONFIDENTIAL
EXHIBIT B
PROJECT CARDINAL
$265,000,000 Second Lien Senior Secured Term Facility
Summary of Principal Second Lien Terms and Conditions1
$265,000,000 Second Lien Senior Secured Term Facility
Summary of Principal Second Lien Terms and Conditions1
Borrower: | The Borrower under the First Lien Facilities. |
|
Transactions: | As described in the First Lien Facilities Term Sheet. |
|
Sources and Uses: | As described in the First Lien Facilities Term Sheet. |
|
Agent: | Credit Suisse AG, acting through one or more of its
branches or affiliates (CS), will act as sole
administrative agent and collateral agent
(collectively, in such capacities, the Agent) for
a syndicate of banks, financial institutions and
other institutional lenders (together with the
Initial Lenders, the Lenders), and will perform
the duties customarily associated with such roles. |
|
Joint Lead Arrangers: | Credit Suisse Securities (USA) LLC and RBS
Securities Inc. will act as joint lead arrangers for
the Second Lien Term Facility described below
(collectively, in such capacities, the Arrangers),
and will perform the duties customarily associated
with such roles. |
|
Joint Bookrunners: | Credit Suisse Securities (USA) LLC, RBS Securities
Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated will act as joint bookrunners for the
Second Lien Term Facility (collectively, in such
capacities, the Bookrunners), and will perform the
duties customarily associated with such roles. |
|
Syndication Agent: | The Royal Bank of Scotland plc will act as
syndication agent for the Second Lien Term Facility
(in such capacity, the Syndication Agent). |
|
Co-Documentation Agents: | Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Morgan Stanley Senior Funding, Inc. will act as
co-documentation agents for the Second Lien Term
Facility (collectively, in such capacities, the
Co-Documentation Agents). |
|
Second Lien Term Facility: | A senior secured second lien term loan facility in
an aggregate principal amount of up to $265,000,000
(the Second Lien Term Facility). |
1 | 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 Exhibit A thereto (the First Lien Facilities Term Sheet). |
Second Lien Facility Term Sheet
Purpose: | The proceeds of the Second Lien Term Facility will
be used by the Borrower on the Closing Date,
together with the proceeds of the First Lien Term
Facility and cash on the Borrowers and Companys
balance sheet, solely (a) to pay the Acquisition
Consideration, (b) to refinance the Existing Debt
and (c) to pay the Transaction Costs. |
|
Availability: | The full amount of the Second Lien Term Facility
must be drawn in a single drawing on the Closing
Date. Amounts borrowed under the Second Lien Term
Facility that are repaid or prepaid may not be
reborrowed. |
|
Interest Rates and Fees: | As set forth on Annex B-I hereto. |
|
Default Rate: | Interest will accrue on past-due amounts at the
applicable interest rate plus 2.0% per annum. |
|
Final Maturity and Amortization: | The Second Lien Term Facility will mature on the
earlier of (x) the date that is five years and six
months after the Closing Date and (y) December 31,
2016, and will have no amortization payments prior
to maturity. |
|
Guarantees: | All obligations of the Borrower under the Second
Lien Term Facility will be unconditionally
guaranteed (the Guarantees) by each existing and
subsequently acquired or organized subsidiary of the
Borrower that is a guarantor under the First Lien
Facilities (the Subsidiary Guarantors and,
together with the Borrower, the Loan Parties). |
|
Security: | The Second Lien Term Facility and the Guarantees
will be secured on a second priority basis by all of
the collateral securing the First Lien Facilities
(the Collateral). |
|
Subject to the Limited Conditionality Provisions,
all the pledges, security interests and mortgages
shall be created on terms, and pursuant to
documentation, satisfactory to the Lenders
(including, in the case of real property, by
customary items such as satisfactory title insurance
and surveys), and none of the Collateral shall be
subject to any other liens (other than the first
priority security interests in favor of the First
Lien Facilities and the liens securing any Hedging
Arrangements), subject to customary and limited
exceptions to be agreed upon. |
||
Intercreditor Arrangements: | As described in the First Lien Facilities Term Sheet. |
|
Mandatory Prepayments: | As described in the First Lien Facilities Term Sheet. |
Second Lien Facility Term Sheet
B-2
Voluntary Prepayments: | The Borrower may not make any voluntary prepayments
of borrowings under the Second Lien Term Facility at
any time prior to the first anniversary of the
Closing Date. Thereafter, voluntary prepayments of
borrowings under the Second Lien Term Facility will
be permitted at any time, in minimum principal
amounts to be agreed upon, subject to the payment of
any applicable prepayment premium (as set forth
under the heading Prepayment Premium in Annex B-I
attached hereto), and subject to reimbursement of
the Lenders redeployment costs in the case of a
prepayment of Adjusted LIBOR borrowings other than
on the last day of the relevant interest period. |
|
Representations and Warranties: | Usual for facilities and transactions of this type
and others to be reasonably specified by the Agent,
including, without limitation, those specified under
the caption Representations and Warranties in the
First Lien Facilities Term Sheet, with such changes
as are appropriate for the Second Lien Term
Facility. |
|
Conditions Precedent to Borrowing: | Delivery of notice; accuracy of representations and
warranties (subject to Limited Conditionality
Provisions); and absence of defaults limited to (x)
cross-default to Material Debt as a result of a
payment default, (y) cross-default to Excluded Debt
referred to in clause (c)(ii) of paragraph 3 in
Exhibit C to the Commitment Letter as a result of
any breach of a financial covenant or the occurrence
of any termination event or event of default as a
result of any failure to meet any specified
financial condition or financial requirement
thereunder and (z) cross-acceleration to Material
Debt. |
|
The borrowing under the Second Lien Term Facility
will also be subject to the applicable conditions
precedent set forth in Section 6 of the Commitment
Letter and in Exhibit C to the Commitment Letter. |
||
Affirmative and Negative Covenants: | Usual for facilities and transactions of this type
and others to be reasonably specified by the Agent
(to be applicable to the Borrower and its
subsidiaries), including, without limitation, those
specified under Affirmative Covenants and
Negative Covenants in the First Lien Facilities
Term Sheet, with such changes as are appropriate for
the Second Lien Term Facility (with certain baskets
to be larger than the corresponding baskets in the
First Lien Facilities). |
Second Lien Facility Term Sheet
B-3
Selected Financial Covenants: |
Usual for facilities and transactions of this type
(with financial definitions, levels and measurement
periods to be agreed upon), including, without
limitation: (a) maximum ratios of Total Debt to
EBITDA and (b) minimum interest coverage ratios
(with levels set higher than the corresponding
levels under the First Lien Facilities). |
|
Events of Default: | Usual for facilities and transactions of this type
and others to be reasonably specified by the Agent
relating to the Borrower and its subsidiaries
(subject, where appropriate, to customary thresholds
and grace periods to be agreed upon), including,
without limitation, nonpayment of principal,
interest or other amounts; violation of covenants;
incorrectness of representations and warranties in
any material respect; cross default and cross
acceleration; bankruptcy; material judgments; ERISA
events; and actual or asserted invalidity of
guarantees or security documents. The Second Lien
Term Facility will cross-default to the First Lien
Facilities only if a default under the First Lien
Facilities is not cured or waived within a 45-day
grace period (subject to exceptions to be agreed). |
|
Change of Control: | Upon the occurrence of a Change of Control (to be
defined), the Borrower must offer to repay the loans
under the Second Lien Term Facility at a price equal
to 101% of par, plus accrued interest. |
|
Voting: | Amendments and waivers of the definitive credit
documentation will require the approval of Lenders
holding more than 50% of the aggregate amount of the
loans under the Second Lien Term Facility, except
that (a) the consent of each affected Lender shall
be required with respect to (i) reductions or
forgiveness of principal, interest or fees payable
to such Lender, (ii) extensions of final maturity of
the loans of such Lender or of the date for payment
to such Lender of any interest or fees and (iii)
changes that impose any additional restriction on
such Lenders ability to assign any of its rights or
obligations and (b) the consent of each Lender shall
be required with respect to (i) modifications to
certain provisions requiring the pro rata treatment
of Lenders, (ii) modification to voting requirements
or percentages and (iii) releases of all or
substantially all of the value of the Guarantees, or
all or substantially all of the Collateral. |
|
Cost and Yield Protection: | Usual for facilities and transactions of this type,
including customary tax gross-up provisions. |
|
Assignments and Participations: | The Lenders will be permitted to assign loans under
the Second Lien Term Facility without the consent of
(but with notice to) the Borrower. All assignments
require the consent of the Agent, not to be
unreasonably withheld or delayed. Each assignment
will be in an amount of an integral multiple of
$1,000,000. Assignments will be by novation. |
|
The Lenders will be permitted to sell participations
in loans without restriction. Voting rights of
participants shall be limited to matters in respect
of (a) reductions or forgiveness of principal,
interest or fees payable to such participant, (b)
extensions of final maturity or scheduled
amortization of, or date for payment of interest or
fees on, the loans in which such participant
participates and (c) releases of all or
substantially all of the value of the Guarantees or
all or substantially all of the Collateral. |
Second Lien Facility Term Sheet
B-4
Expenses and Indemnification: | The Borrower will indemnify each Arranger, each
Bookrunner, the Syndication Agent, each
Co-Documentation Agent, the Lenders, their
respective affiliates, successors and assigns and
the officers, directors, employees, agents,
advisors, controlling persons and members of each of
the foregoing (each, an Indemnified Person) and
hold them harmless from and against all costs,
expenses (including reasonable fees, disbursements
and other charges of counsel) and liabilities of
such Indemnified Person arising out of or relating
to any claim or any litigation or other proceeding
(regardless of whether such Indemnified Person is a
party thereto and regardless of whether such matter
is initiated by a third party or by the Borrower,
the Company or any of their respective affiliates or
equity holders) that relates to the Transactions,
including the financing contemplated hereby, the
Acquisition or any transactions connected therewith;
provided that no Indemnified Person will be
indemnified for any cost, expense or liability to
the extent determined in the final, non-appealable
judgment of a court of competent jurisdiction to
have resulted primarily from its gross negligence or
willful misconduct. In addition, the Borrower shall
pay (a) all reasonable out-of-pocket expenses
(including, without limitation, reasonable fees,
disbursements and other charges of counsel) of each
Arranger, each Bookrunner, the Agent, the
Syndication Agent and each Co-Documentation Agent in
connection with the syndication of the Second Lien
Term Facility, the preparation and administration of
the definitive documentation and amendments,
modifications and waivers thereto and (b) all
out-of-pocket expenses (including, without
limitation, fees, disbursements and other charges of
counsel) of each Arranger, each Bookrunner, the
Agent, the Syndication Agent, each Co-Documentation
Agent and the Lenders for enforcement costs and
documentary taxes associated with the Second Lien
Term Facility. |
|
Governing Law and Forum: | New York. |
|
Counsel to Agent: | Davis Polk & Wardwell LLP. |
Second Lien Facility Term Sheet
B-5
ANNEX B-I
Interest Rates: | At the option of the Borrower, Adjusted LIBOR
plus 9.00% or ABR plus 8.00%. |
|||||
The Borrower may elect interest periods of one,
two, three or six months for Adjusted LIBOR
borrowings. |
||||||
Calculation of interest shall be on the basis of
the actual number of days elapsed over a 360-day
year (or 365- or 366-day year, as the case may
be, in the case of ABR loans based on the Prime
Rate) and interest shall be payable at the end of
each interest period and, in any event, at least
every three months. |
||||||
ABR is the Alternate Base Rate, which is the
highest of (i) CSs Prime Rate, (ii) the Federal
Funds Effective Rate plus 1/2 of 1.0% and (iii)
one-month Adjusted LIBOR plus 1.0%. |
||||||
Adjusted LIBOR will at all times include
statutory reserves and shall be deemed to be not
less than 1.50% per annum. |
||||||
Original Issue Discount: | The loans under the Second Lien Term Facility
will be issued to the Lenders participating in
the Second Lien Term Facility at a price of
98.00% of their principal amount.
Notwithstanding the foregoing, (a) all
calculations of interest and fees in respect of
the Second Lien Term Facility will be calculated
on the basis of its full stated principal amount
and (b) at the option of the Arrangers, any
original issue discount may instead be effected
in the form of an upfront fee payable to the
Lenders. |
|||||
Prepayment Premium: | The Borrower may not make any voluntary
prepayments of borrowings under the Second Lien
Term Facility at any time prior to the first
anniversary of the Closing Date. Thereafter, in
the event that all or any portion of the Second
Lien Term Facility is voluntarily prepaid or is
prepaid in connection with a mandatory
assignment, such prepayments shall be made at the
following prices: |
|||||
Year 2: | 103% | |||||
Year 3: | 102% | |||||
Year 4: | 101% | |||||
Thereafter: | par |
Second Lien Facility Term Sheet
EXHIBIT C
PROJECT CARDINAL
$545,000,000 First Lien Senior Secured Credit Facilities
$265,000,000 Second Lien Senior Secured Term Facility
Summary of Additional Conditions Precedent2
$545,000,000 First Lien Senior Secured Credit Facilities
$265,000,000 Second Lien Senior Secured Term Facility
Summary of Additional Conditions Precedent2
The initial borrowing under each of the Facilities shall be subject to the following
additional conditions precedent:
1. The Acquisition shall be consummated substantially simultaneously with the closing under
the Facilities on the terms described in the Purchase Agreement (without any amendment,
modification or waiver thereof or any consent thereunder which is materially adverse to the
Borrower, the Lenders or the Arrangers for the Facilities without the prior written consent of the
Arrangers (it being understood and agreed that (a) any reduction in the Acquisition Consideration
(other than any reductions that in the aggregate are (x) 10% or less of the Acquisition
Consideration as of March 25, 2011 and (y) if such reductions are reductions in the cash portion of
the Acquisition Consideration, allocated on a dollar-for-dollar basis, (i) in the case of the first
$15,000,000 of such reductions, to reduce the principal amount of the Second Lien Term Facility and
(ii) the remainder, 50% to reduce the aggregate principal amount of the Facilities (allocated among
the Facilities as determined by the Arrangers) and 50% to reduce the Acquisition Consideration paid
by the Borrower or any of its affiliates) and (b) any amendment or modification to (x) Section 10.1
or 10.7 of the Purchase Agreement or (y) any provision of the Purchase Agreement setting forth any
liability cap or limitation on damages or remedies of which the Arrangers and the Lenders are
beneficiaries pursuant to Section 10.7 of the Purchase Agreement (including, without limitation,
Sections 8.2, 10.11 and 10.15 and Article 9 thereof), shall in each case be deemed to be a
modification which is materially adverse to the Lenders).
2. With respect to the First Lien Facilities, the Borrower shall have received not less than
$265,000,000 (subject to adjustment as provided in paragraph 1) in gross cash proceeds from
borrowings under the Second Lien Term Facility.
3. All amounts due or outstanding in respect of the Existing Debt shall have been (or
substantially simultaneously with the closing under the Facilities shall be) paid in full, all
commitments (if any) in respect thereof terminated and all guarantees (if any) thereof and security
(if any) therefor discharged and released. After giving effect to the Transactions and the other
transactions contemplated hereby, the Borrower and its subsidiaries shall have outstanding no
indebtedness for borrowed money or disqualified preferred stock other than (a) the loans and other
extensions of credit under the First Lien Facilities, (b) the loans under the Second Lien Term
Facility, (c)(i) debt in an aggregate principal amount not to exceed $20,100,000 under the Senior
Secured Credit Agreement dated as of October 9, 2009 between Green Tree Servicing LLC, as borrower
and the Federal National Mortgage Association, as lender (the MSR Financing Facility), (ii) debt
in an aggregate principal amount not to exceed $58,000,000 under the Receivables Loan Agreement
dated as of July 31, 2009 among Green Tree Advance
Receivables II LLC, as borrower, Green Tree Servicing LLC, as administrator, the financial
institutions party thereto from time to time and Wells Fargo Foothill LLC, as agent (the
Receivables Facility), (iii) debt in an aggregate principal amount not to exceed $5,000,000
under the Master Repurchase Agreement dated as of August 20, 2010 among Green Tree Servicing, LLC,
as seller and Silvergate Bank, as buyer and (iv) non-recourse debt in an aggregate principal amount
not to exceed $2,404,000,000 of securitization trusts (such debt, together with debt under the MSR
Financing Facility, the Receivables Facility and debt under clause (d), the Excluded Debt) and
(d) other limited indebtedness to be agreed upon.
2 | All capitalized terms used but not defined herein have
the meanings given to them in the Commitment Letter to which this Exhibit C is
attached, including Exhibits A and B thereto. Unless the context requires
otherwise, references herein to the Agent shall be deemed to be references to
each of the Agent as defined in such Exhibit A and the Agent as defined in such
Exhibit B. |
Summary of Additional Conditions Precedent
4. The Arrangers shall have received (a) U.S. GAAP audited consolidated balance sheets and
related statements of income, stockholders equity and cash flows of the Borrower and the Company
for the 2008, 2009 and 2010 fiscal years and each subsequent fiscal year ended at least 90 days
before the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related
statements of income, stockholders equity and cash flows of the Borrower and the Company for (i)
each subsequent fiscal quarter ended at least 45 days before the Closing Date and (ii) each fiscal
month after the most recent fiscal quarter for which financial statements were received by the
Arrangers as described above and ended at least 30 days before the Closing Date.
5. The Arrangers shall have received a pro forma consolidated balance sheet and related pro
forma consolidated statements of income and cash flows of the Borrower as of and for the
twelve-month period ending on the last day of the most recently completed four-fiscal quarter
period for which financial statements have been delivered pursuant to paragraph 4 above, 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).
6. The Companys consolidated EBITDA for the twelve-month period ending on the last day of the
most recently completed fiscal month for which financial statements have been delivered pursuant to
paragraph 4 above (calculated in a manner consistent with the presentation of EBITDA set forth in
the Project Cardinal Offering Memorandum provided to the Arrangers prior to the date hereof,
adjusted for provision expense on advances) shall not be less than $160,000,000.
7. The Arrangers shall have received a solvency certificate from the chief financial officer
of the Borrower in the form attached hereto as Annex C-I certifying that the Borrower and its
subsidiaries, on a consolidated basis after giving effect to the Transactions and the other
transactions contemplated hereby, are solvent.
8. With respect to the Second Lien Term Facility, the First Lien Facilities shall have become
effective and the Borrower shall have borrowed on the Closing Date not more than $500,000,000 under
the First Lien Term Facility thereunder.
9. The Agent shall have received, at least five business days prior to the Closing Date, all
documentation and other information required by regulatory authorities under applicable know your
customer and anti-money laundering rules and regulations, including without limitation the PATRIOT
Act.
10. With respect to each of the Facilities, (a) the Arrangers shall have received, not later
than 30 consecutive days prior to the Closing Date, the Confidential Information Memorandum and the
Plan Deliverables and (b) the Arrangers shall have been afforded a period
of at least 30 consecutive days following the receipt of such Confidential Information
Memorandum and Plan Deliverables and prior to the Closing Date to syndicate the Facilities.
Summary of Additional Conditions Precedent
C-2
11. The Agent shall have received customary legal opinions, corporate documents and officers
and public officials certifications and insurance certificates. Subject to the Limited
Conditionality Provisions, (i) the Agent under the First Lien Facilities shall have a perfected
first priority security interest in and lien on all Collateral and the Agent under the Second Lien
Term Facility shall have a perfected second priority security interest in and lien on all
Collateral and (ii) all filings and recordations necessary in connection with such liens and
security interests or arrangements reasonably satisfactory to the Collateral Agent therefor shall
have been duly made. The Agent shall have received the results of recent lien searches in each
relevant jurisdiction with respect to the Borrower and its subsidiaries, and if such search results
reveal any liens on any assets of the Borrower and its subsidiaries other than customary permitted
liens, liens to be discharged on or prior to the Closing Date and liens securing Excluded Debt, the
Borrower shall have used commercially reasonable efforts to discharge such liens on or prior to the
Closing Date. Each of the Guarantees shall have been executed and be in full force and effect.
12. All accrued costs, fees and expenses (including legal fees and expenses and the fees and
expenses of any other advisors) and other compensation payable to the Agent, the Arrangers and the
Lenders, required to be paid on the Closing Date in each case pursuant to the Commitment Letter or
the Fee Letters, shall have been paid (which amount may be offset against the proceeds of the
Facilities).
Summary of Additional Conditions Precedent
C-3
ANNEX C-I
FORM OF SOLVENCY CERTIFICATE
SOLVENCY CERTIFICATE
of
WALTER INVESTMENT MANAGEMENT CORP.
AND ITS SUBSIDIARIES
of
WALTER INVESTMENT MANAGEMENT CORP.
AND ITS SUBSIDIARIES
Pursuant to the Credit Agreement3, the undersigned hereby certifies, solely in such
undersigneds capacity as [chief financial officer] [specify other officer with equivalent duties]
of the Borrower, and not individually, as follows:
1. I have made such investigation and inquiries as to the financial condition of the Borrower and
its subsidiaries as I have deemed necessary and prudent for the purposes of providing this Solvency
Certificate. I acknowledge that the Administrative Agent, the L/C Issuer and the Lenders are
relying on the truth and accuracy of this Solvency Certificate in connection with the making of
Loans and the issuance of Letters of Credit under the Credit Agreement. I further certify that the
financial information, projections and assumptions which underlie and form the basis for the
representations made in this Solvency Certificate were made in good faith and were based on
assumptions reasonably believed by the Borrower to be fair in light of the circumstances existing
at the time made and continue to be fair as of the date hereof.
2. As of the date hereof, after giving effect to the consummation of the Transactions, including
the making of the Loans and the issuance of Letters of Credit (if any) 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 assets 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, on a consolidated basis, are 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 this Solvency Certificate, 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.
3 | Credit Agreement to be defined. |
Solvency Certificate
IN WITNESS WHEREOF, the undersigned has executed this Solvency Certificate in such
undersigneds capacity as [chief financial 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.
WALTER INVESTMENT MANAGEMENT CORP. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Solvency Certificate
C-I-2
SCHEDULE I
(a) Green Tree Servicing LLC received a Civil Investigative Demand (CID) from the
Federal Trade Commission (the FTC), its primary federal regulator, on November 18, 2010.
The CID was issued by the FTC in connection with a nonpublic investigation of loan servicing acts
and practices, and requires the Group Companies to produce certain documents and information to the
FTC and answer certain written interrogatories.
(b) Except as set forth in clause (c) below, this Schedule I and the disclosure herein speaks
solely to the CID and the obligations of the Group Companies to comply with and respond to the CID,
and does not (and is not intended to) serve as disclosure in respect of any Action, Order,
violation of Law or other matter that may result from the FTC investigation underlying the CID,
including to the extent prompted by the disclosure or contents of any of the documents and
information produced, or answers to written interrogatories provided, pursuant to the CID (each, a
Reserved Matter).
(c) Solely for purposes of the reference to this Schedule I in the definition of Company
Material Adverse Effect in the Commitment Letter, the matter set forth in this Schedule I shall be
read to include disclosure of any change, development, circumstance, effect, event or fact arising
from or relating to the matter described in clause (a) of this Schedule I if the Company does not,
as of the date of the Agreement, have knowledge of any such Reserved Matter or of any underlying
breach of Article 3 or Article 4 of the Purchase Agreement that gives rise to a Reserved Matter.
Any capitalized terms used in this Schedule I and not otherwise defined in the Commitment
Letter shall have the same meaning as set forth in the Purchase Agreement as in effect on the date
hereof and the phrases to the Companys knowledge, to the knowledge of the Company and known
by the Company and any derivations thereof shall mean as of the applicable date, the actual
knowledge after reasonable inquiry (but shall in no event encompass constructive, imputed or
similar concepts of knowledge) of Brian Libman, Keith Anderson, James Breakey, Barbara Didrikson,
Brian Corey, Cheryl Collins, Jeffrey Hilligoss, Thomas Franco, Patricia Cook, James Van House,
Dominic Baglio, Mark Atencio, Ronald Siemers, Randy Shannon, Wade Burgess, and Scott Clarke, none
of whom shall have any personal liability or obligations regarding such knowledge.
Solvency Certificate