Update on Financing Arrangements

Apax Partners LLP

15 December 2023

 

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION

FOR IMMEDIATE RELEASE

15 December 2023

RECOMMENDED CASH ACQUISITION

of

Kin and Carta plc ("Kin and Carta")

by

Kelvin UK Bidco Limited ("Bidco")

(a newly formed company owned indirectly by funds advised by Apax Partners LLP ("Apax"))

to be effected by means of a scheme of arrangement under Part 26 of the Companies Act 2006

Update on Financing Arrangements and Regulatory Conditions

On 18 October 2023, the boards of directors of Kin and Carta and Bidco announced that they had reached agreement on the terms and conditions of a recommended cash acquisition pursuant to which Bidco will acquire the entire issued, and to be issued, share capital of Kin and Carta (the "Acquisition"). The Acquisition is to be effected by means of a scheme of arrangement under Part 26 of the Companies Act 2006 (the "Scheme"), subject to the terms and conditions set out in the circular in relation to the Scheme sent to Kin and Carta Shareholders dated 9 November 2023 (the "Scheme Document").

Capitalised terms used but not otherwise defined in this announcement (the "Announcement") have the meanings set out in the Scheme Document.

Entry into Senior Facilities Agreement

On 15 December 2023, Kelvin Midco 2 Limited ("Midco 2"), a private limited company incorporated in England and Wales and the direct parent of Bidco, entered into a senior facilities agreement with (among others) HSBC UK Bank plc, JPMorgan Chase Bank, N.A., London Branch, National Westminster Bank plc, SMBC Bank International plc and UniCredit Bank AG (the "Original Lenders") (the "Senior Facilities Agreement"), and an intercreditor agreement with (among others) Wilmington Trust (London) Limited as facility agent and security agent (the "Intercreditor Agreement" and, together with the Senior Facilities Agreement, the "Financing Documents") in relation to the financing of the Acquisition. A summary of the terms of the Financing Documents is attached at the Appendix to this Announcement.

A copy of the Financing Documents will be available, subject to certain restrictions relating to persons resident in certain jurisdictions, on Kin and Carta's website at https://investors.kinandcarta.com and Bidco's website at www.kelvinoffer.com by no later than 12.00 p.m. on the Business Day following the date of this Announcement.

Update on Fees and Expenses

In accordance with Rule 24.16 of the Takeover Code, the aggregate fees and expenses expected to be incurred by Bidco in connection with the financing described above (excluding any applicable VAT and other taxes) is expected to be approximately GBP 4,670,000, therefore bringing the total fees and expenses expected to be incurred by Bidco in connection with the Acquisition to GBP 16,561,500. Bidco's expectations for the other categories of fees and expenses remain in line with the estimate previously disclosed in the Scheme Document.

Update on Regulatory Conditions

The Acquisition is conditional on, among other things, certain antitrust, foreign investment and regulatory approvals and clearances. All first-round filings required in relation to such approvals and clearances were made on or before 17 November 2023.

Bidco is pleased to confirm that the CMA has responded to a briefing paper in writing confirming that it has no further questions in relation to the Acquisition (and has not otherwise opened an inquiry, or indicated that it is still deciding whether to open an enquiry). In addition, the applicable waiting period for the Hart Scott Rodino Antitrust Improvements Act of 1976 (as amended) and the regulations made thereunder relating to the Acquisition, has now expired. 

Bidco therefore continues to expect that, subject to the satisfaction (or where applicable, waiver) of the Conditions, the Scheme will become Effective during the first quarter of 2024.

Enquiries

Apax Luke Charalambous	[phone]
BofA Securities (Lead Financial Adviser to Apax and Bidco) James Robertson Eish Dhillon Antonia Rowan Charles Pitt Ford	[phone]
Equiteq Corporate Finance Limited (Financial Adviser to Apax and Bidco) Jerome Glynn-Smith Emmanuel Kostucki	[phone]
Headland Consultancy Limited (PR Adviser to Apax and Bidco) Emma Nyman	[phone]

Important Notices

Merrill Lynch International ("BofA Securities"), which is authorised by the PRA and regulated by the FCA and the PRA in the United Kingdom, is acting exclusively for Apax and Bidco and for no one else in connection with the matters set out in this Announcement and will not be responsible to anyone other than Apax and Bidco for providing the protections afforded to its clients or for providing advice in relation to any matter referred to in this Announcement or any transaction or arrangement referred to herein. Neither BofA Securities, nor any of its affiliates, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of BofA Securities in connection with this Announcement, any statement contained herein, any transaction or arrangement referred to herein, or otherwise.

Equiteq Corporate Finance Limited ("Equiteq"), an appointed representative of Frank Investments Limited, who is authorised and regulated by the FCA in the United Kingdom, is acting exclusively for Apax and Bidco and for no one else in connection with this Announcement and any other matters in connection with it. Equiteq will not be responsible to anyone other than Apax and Bidco for providing the protections afforded to its clients or for providing advice in connection with any matters in connection with this Announcement. Neither Equiteq, nor any of its affiliates, directors or employees, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Equiteq in connection with this Announcement or any statement contained therein or otherwise.

Further information

The release, publication or distribution of this Announcement in or into or from jurisdictions other than the United Kingdom may be restricted by law and therefore any persons who are subject to the laws of any jurisdiction other than the United Kingdom should inform themselves about, and observe, such restrictions. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person. This Announcement does not constitute an offer or invitation to purchase or subscribe for any securities or a solicitation of an offer to buy any securities pursuant to the Scheme Document or otherwise in any jurisdiction in which such offer or solicitation is unlawful.

The statements contained in this Announcement are made as at the date of this Announcement, unless some other time is specified in relation to them. Nothing in this Announcement shall be deemed to be a forecast, projection or estimate of the future financial performance of Kin and Carta, the Wider Kin and Carta Group, Bidco or the Wider Bidco Group except where otherwise stated.

This Announcement is not a prospectus or prospectus-equivalent document.

Overseas Shareholders

This Announcement has been prepared in accordance with and for the purpose of complying with English and Welsh law, the Code, the Market Abuse Regulation, the Disclosure Guidance and Transparency Rules and the Listing Rules and information disclosed may not be the same as that which would have been disclosed if this Announcement had been prepared in accordance with the laws of jurisdictions outside England and Wales.

The availability of the Acquisition to Kin and Carta Shareholders who are not resident in and citizens of the United Kingdom may be affected by the laws of the relevant jurisdictions in which they are located or of which they are citizens. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. In particular, the ability of persons who are not resident in the United Kingdom to vote their Kin and Carta Shares with respect to the Scheme at the Court Meeting, or to appoint another person as proxy to vote at the Court Meeting on their behalf, may be affected by the laws of the relevant jurisdictions in which they are located. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Acquisition disclaim any responsibility or liability for the violation of such restrictions by any person.

Unless otherwise determined by Bidco or required by the Code, and permitted by applicable law and regulation, the Acquisition will not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction and no person may vote in favour of the Scheme by any such use, means, instrumentality or from within a Restricted Jurisdiction or any other jurisdiction if to do so would constitute a violation of the laws of that jurisdiction. Accordingly, copies of this Announcement and any formal documentation relating to the Acquisition are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction where to do so would violate the laws in that jurisdiction, and persons receiving this Announcement and all such documents relating to the Acquisition (including, without limitation, agents, custodians, nominees and trustees) must not mail or otherwise forward, distribute or send them in or into or from such jurisdictions where to do so would violate the laws in that jurisdiction. Doing so may render invalid any related purported vote in respect of the Acquisition. If the Acquisition is implemented (with the consent of the Panel and subject to and in accordance with the terms of the Co-operation Agreement) by way of a Takeover Offer (unless otherwise permitted by applicable law and regulation), the Takeover Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or instrumentality (including, but not limited to, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or of any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Takeover Offer may not be capable of acceptance by any such use, means, instrumentality or facilities.

The Acquisition shall be subject to, among other things, the applicable requirements of the Code, the Panel, the London Stock Exchange and the FCA.

The statements contained in this Announcement are not to be construed as legal, business, financial or tax advice.

Additional information for US investors

The Acquisition relates to the shares of an English company and is being made by means of a scheme of arrangement provided for under the laws of England and Wales. A transaction effected by means of a scheme of arrangement is not subject to the tender offer rules or the proxy solicitation rules under the US Exchange Act. Accordingly, the Acquisition is subject to the disclosure requirements and practices applicable in the United Kingdom to schemes of arrangement, which differ from the disclosure requirements of United States tender offer and proxy solicitation rules.

The financial information included in this Announcement and the Scheme Document (or, if the Acquisition is implemented by way of a Takeover Offer, the Offer Document) has been prepared in accordance with generally accepted accounting principles applicable in the United Kingdom and thus may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States ("US GAAP"). US GAAP differs in significant respects from accounting standards applicable in the United Kingdom.

If Bidco were to exercise its right (with the consent of the Panel and subject to and in accordance with the terms of the Co-operation Agreement) to implement the Acquisition by means of a Takeover Offer and determines to extend the Takeover Offer into the United States, such Takeover Offer would be made in compliance with all applicable United States laws and regulations.

In the event that the Acquisition is implemented by way of a Takeover Offer, in accordance with normal United Kingdom practice and pursuant to Rule 14e-5(b) of the US Exchange Act, Bidco or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase, shares or other securities of Kin and Carta outside of the US, other than pursuant to the Acquisition, until the date on which the Acquisition becomes Effective, lapses or is otherwise withdrawn. Also, in accordance with Rule 14e-5(b) of the US Exchange Act, BofA Securities will continue to act as exempt principal trader in Kin and Carta Shares on the London Stock Exchange. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices and would comply with applicable law, including the US Exchange Act. Any information about such purchases or arrangements to purchase shall be disclosed as required in the United Kingdom, shall be reported to a Regulatory Information Service and shall be available on the London Stock Exchange website at www.londonstockexchange.com.

Neither the US Securities and Exchange Commission (the "SEC") nor any securities commission of any state of the US nor any other US regulatory authority has approved the Acquisition, passed upon the fairness of the Acquisition or passed upon the adequacy or accuracy of this Announcement. Any representation to the contrary is a criminal offence in the US.

For the purposes of qualifying for the exemption from the registration requirements of the US Securities Act afforded by Section 3(a)(10) thereof, Kin and Carta will advise the Court that its sanctioning of the Acquisition will be relied upon by Kin and Carta and Bidco as an approval of the Scheme following a hearing on its fairness which all Scheme Shareholders are entitled to attend, in person or through counsel, to support or oppose the sanctioning of the Scheme and with respect to which notification has been given to all such Scheme Shareholders.

The receipt of cash pursuant to the Acquisition by a US holder of Kin and Carta Shares as consideration for the transfer of its Kin and Carta Shares pursuant to the Scheme will likely be a taxable transaction for US federal income tax purposes and may also be a taxable transaction under applicable state and local tax laws, as well as foreign and other tax laws. Each US holder of Kin and Carta Shares is strongly advised to consult an appropriately qualified independent professional adviser immediately regarding the tax consequences of the Scheme applicable to them, including under applicable United States state and local, as well as overseas and other, tax laws.

Each US holder is urged to consult his, her or its independent professional adviser immediately regarding the tax consequences of the Acquisition.

It may be difficult for US holders of Kin and Carta Shares to enforce their rights and claims arising out of US federal securities laws, since Bidco and Kin and Carta are located in a non-US jurisdiction, and some or all of their officers and directors may be residents of a non-US jurisdiction, and a substantial part of the assets of Kin and Carta are located outside of the US. US holders of Kin and Carta Shares may not be able to sue a non-US company or its officers or directors in a non-US court for violations of US securities laws. Further, it may be difficult to compel a non-US company and its affiliates to subject themselves to a US court's judgement.

Cautionary note regarding forward-looking statements

This Announcement (including information incorporated by reference in this Announcement), oral statements made regarding the Acquisition, and other information published by Bidco and Kin and Carta contain statements which are, or may be deemed to be, "forward looking statements". Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of Bidco and Kin and Carta about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements.

The forward-looking statements contained in this Announcement include statements relating to the expected effects of the Acquisition on Bidco and Kin and Carta (including their future prospects, developments and strategies), the expected timing and scope of the Acquisition and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "prepares", "plans", "expects" or "does not expect", "is expected", "is subject to", "budget", "projects", "synergy", "strategy", "scheduled", "goal", "estimates", "forecasts", "cost-saving", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would", "might" or "will" be taken, occur or be achieved. Forward looking statements may include statements relating to the following: (i) future capital expenditures, expenses, revenues, earnings, synergies, economic performance, indebtedness, financial condition, dividend policy, losses and future prospects; (ii) business and management strategies and the expansion and growth of Bidco's, Kin and Carta's, any member of the Bidco Group's or any member of the Kin and Carta Group's operations and potential synergies resulting from the Acquisition; and (iii) the effects of global economic conditions and governmental regulation on Bidco's, Kin and Carta's, any member of the Bidco Group's or any member of the Kin and Carta Group's business.

Although Bidco and Kin and Carta believe that the expectations reflected in such forward-looking statements are reasonable, Bidco and Kin and Carta can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements.

These factors include, but are not limited to: the ability to complete the Acquisition; the ability to obtain requisite regulatory and shareholder approvals and the satisfaction of other Conditions on the proposed terms and schedule; changes in the global political, economic, business and competitive environments and in market and regulatory forces; changes in future exchange and interest rates; changes in tax rates; future business combinations or disposals; changes in general economic and business conditions; changes in the behaviour of other market participants; changes in the anticipated benefits from the Acquisition not being realised as a result of changes in general economic and market conditions in the countries in which Bidco and Kin and Carta operate, weak, volatile or illiquid capital and/or credit markets, changes in tax rates, interest rate and currency value fluctuations, the degree of competition in the geographic and business areas in which Bidco and Kin and Carta operate and changes in laws or in supervisory expectations or requirements. Other unknown or unpredictable factors could cause actual results to differ materially from those expected, estimated or projected in the forward-looking statements. If any one or more of these risks or uncertainties materialises or if any one or more of the assumptions proves incorrect, actual results may differ materially from those expected, estimated or projected. Such forward-looking statements should therefore be construed in the light of such factors. Neither Bidco nor Kin and Carta, nor any of their respective associates or directors, officers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this Announcement will actually occur. You are cautioned not to place any reliance on these forward-looking statements. 

Other than in accordance with their legal or regulatory obligations, neither Bidco nor Kin and Carta is under any obligation, and Bidco and Kin and Carta expressly disclaim any intention or obligation, to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

Profit forecasts, estimates or quantified financial benefits statements

No statement in this Announcement is intended as a profit forecast, estimate or quantified financial benefits statement for any period and no statement in this Announcement should be interpreted to mean that earnings or earnings per share for Kin and Carta for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Kin and Carta.

Dealing and Opening Position Disclosure Requirements

Under Rule 8.3(a) of the Code, any person who is interested in 1 per cent. or more of any class of relevant securities of an offeree company or of any securities exchange offeror (being any offeror other than an offeror in respect of which it has been announced that its offer is, or is likely to be, solely in cash) must make an Opening Position Disclosure following the commencement of the Offer Period and, if later, following the announcement in which any securities exchange offeror is first identified. An Opening Position Disclosure must contain details of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) the offeree company and (ii) any securities exchange offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a) applies must be made by no later than 3:30 p.m. (London time) on the 10th Business Day following the commencement of the Offer Period and, if appropriate, by no later than 3:30 p.m. (London time) on the 10th Business Day following the announcement in which any securities exchange offeror is first identified. Relevant persons who deal in the relevant securities of the offeree company or of a securities exchange offeror prior to the deadline for making an Opening Position Disclosure must instead make a Dealing Disclosure.

Under Rule 8.3(b) of the Code, any person who is, or becomes, interested in 1 per cent. or more of any class of relevant securities of the offeree company or of any securities exchange offeror must make a Dealing Disclosure if the person deals in any relevant securities of the offeree company or of any securities exchange offeror. A Dealing Disclosure must contain details of the dealing concerned and of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) the offeree company and (ii) any securities exchange offeror(s), save to the extent that these details have previously been disclosed under Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no later than 3:30 p.m. (London time) on the Business Day following the date of the relevant dealing.

If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3.

Opening Position Disclosures must also be made by the offeree company and by any offeror and Dealing Disclosures must also be made by the offeree company, by any offeror and by any persons acting in concert with any of them (see Rules 8.1, 8.2 and 8.4).

Details of the offeree and offeror companies in respect of whose relevant securities Opening Position Disclosures and Dealing Disclosures must be made can be found in the Disclosure Table on the Panel's website at www.thetakeoverpanel.org.uk, including details of the number of relevant securities in issue, when the Offer Period commenced and when any offeror was first identified. You should contact the Panel's Market Surveillance Unit on [phone] if you are in any doubt as to whether you are required to make an Opening Position Disclosure or a Dealing Disclosure.

Publication on a website

In accordance with Rule 26.1 of the Code, a copy of this Announcement will be made available, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, on Kin and Carta's website at https://investors.kinandcarta.com and on Bidco's website at www.kelvinoffer.com.

For the avoidance of doubt, neither the contents of Kin and Carta's website and Bidco's website nor Apax's website nor any website accessible from hyperlinks is incorporated into or forms part of this Announcement.

Requesting hard copy documents

In accordance with Rule 30.3 of the Code, Kin and Carta Shareholders, persons with information rights and participants in Kin and Carta Share Plans may request a hard copy of this Announcement by contacting Kin and Carta's receiving agents, Link Group, between 9:00 a.m. and 5:30 p.m. (London time) Monday to Friday (except UK public holidays) on 0371 664 0321 from within the UK or on [phone] if calling from outside the UK or by submitting a request in writing to Link Group, Corporate Actions, Central Square, 29 Wellington Street, Leeds, LS1 4DL. Calls are charged at the standard geographical rate and will vary by provider. Calls outside the United Kingdom will be charged at the applicable international rate. Please note that Link Group cannot provide any financial, legal or tax advice and calls may be recorded and monitored for security and training purposes.

For persons who receive a copy of this Announcement in electronic form or via a website notification, a hard copy of this Announcement and any such information incorporated in it by reference to another source will not be sent unless so requested. Such persons may also request that all future documents, announcements and information in relation to the Acquisition be sent to them in hard copy form.

Electronic communications

Please be aware that addresses, electronic addresses and certain information provided by Kin and Carta Shareholders, persons with information rights and other relevant persons for the receipt of communications from Kin and Carta may be provided to Bidco during the Offer Period as requested under Section 4 of Appendix 4 of the Code to comply with Rule 2.11(c) of the Code.

Rounding

Certain figures included in this Announcement have been subjected to rounding adjustments. 

General

If you are in any doubt about the contents of this Announcement or the action you should take, you are recommended to seek your own independent financial advice immediately from your stockbroker, bank manager, solicitor, accountant or from an independent financial adviser duly authorised under the Financial Services and Markets Act 2000 if you are a resident in the UK or, if not, from another appropriate authorised independent financial adviser.

APPENDIX

Summary of the Financing Documents

On 15 December 2023, Midco 2 and the Original Lenders (among others) entered into the Senior Facilities Agreement concerning the debt financing facilities described below.

Under the terms of the Senior Facilities Agreement, the Original Lenders agreed to make available certain term loans and a revolving credit facility described more particularly below. The Senior Facilities Agreement contemplates that the Original Lenders may transfer their rights and obligations under the Senior Facilities Agreement to other banks, financial institutions, trusts, funds or other entities which are regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets, or any other person approved in writing by Midco 2.

The facilities, amounts and documentation process

The debt financing facilities comprise (i) a senior secured term loan facility in the principal amount of up to GBP 60,000,000 (a portion of which is to be redenominated into USD in accordance with the terms of the Senior Facilities Agreement) (the "Facility B1"), (ii) a senior secured multicurrency term loan facility in the principal amount of up to GBP 20,000,000 (the " Facility B2"), and (iii) a senior secured multicurrency revolving credit facility in the principal amount of up to GBP 25,000,000 (the " Revolving Facility" and together with Facility B1 and Facility B2, the "Facilities").

The Facilities are available to be drawn down by certain members of the Bidco Group, subject to satisfaction of the conditions precedent set out in the Senior Facilities Agreement summaries below.

The proceeds of the Facilities are to be applied as follows:

(A)            in respect of the Facility B1, to directly or indirectly finance/refinance: (i) the amounts payable under or in connection with the Acquisition; (ii) the repayment, purchase or other discharge of indebtedness of the Group (together with any broken funding costs, redemption premia and other fees, costs and/or expenses payable in connection with that repayment, purchase or discharge); (iii) the payment of fees, costs and expenses relating to the Acquisition; and/or (iv) the working capital requirements and/or general corporate purposes of the Bidco Group;

(B) in respect of the Facility B2, to directly or indirectly finance/refinance: (i) any amounts payable under or in connection with any acquisition, joint venture, investment and/or other similar or equivalent transaction; (ii) any repayment, purchase or other discharge of indebtedness and broken funding costs, redemption premia and other fees, costs and/or expenses payable in connection with that repayment/purchase/discharge; (iii) any payment of fees, costs and expenses incurred in connection with any acquisition, joint venture, investment, capital expenditure and/or other similar or equivalent transaction; (iv) any capital expenditure requirements of the Bidco Group; and/or (v) any costs, expenses and other expenditure relating to any restructuring undertaken by the Bidco Group; and

(C) in respect of the Revolving Facility, to directly or indirectly finance/refinance the working capital requirements and/or general corporate purposes of the Bidco Group.

 Repayment terms - maturity

Once drawn, the Facility B1 and Facility B2 must be repaid as a bullet payment in full on the date falling seven years after the date on which the first drawing is made under Facility B1 (the "Closing Date").

The Revolving Facility must be repaid in full on the date falling six years from the Closing Date (the "Revolving Facility Maturity Date").

Prepayment and repayment terms - voluntary/mandatory

Any borrower under the Facilities may voluntarily cancel and prepay the Facilities in whole or in part at any time subject to the giving of one Business Days' prior notice. Prepayment and cancellation rights shall apply (and/or may be exercised by the applicable lenders) in respect of illegality, change of control or a sale of all or substantially all of the assets of the Bidco Group to persons who are not members of the Bidco Group. Additionally, mandatory prepayment rights shall apply (subject to various exceptions and exclusions) in respect of any excess cashflow of the Bidco Group (calculated per financial year), and of net cash proceeds received by Midco 2 or certain other members of the Bidco Group as a result of the sale of certain assets.

Interest rates

The rate of interest payable on each loan drawn under the Facilities is the aggregate of the applicable margin, plus the applicable reference rate (being SOFR for USD loans, SONIA for GPB loans, SARON for CHF loans, EURIBOR for Euro loans and the applicable base rate for loans in any other currency).

Subject to the below, the margin in respect of the Facilities is as follows:

(A)            5.00% per annum in relation to any GBP Facility B1 loan;

(B) 4.75% per annum in relation to any non-GBP Facility B1 loan;

(C) 5.00% per annum in relation to any GBP Facility B2 loan;

(D)            4.75% per annum in relation to any non-GBP Facility B2 loan; and

(E) 4.25% per annum in relation to any Revolving Facility loan.

The above margin rates shall apply from the Closing Date until 6 months thereafter, provided no material default is continuing and the Bidco Group is complying with the financial covenant (the "Opening Margin Period"). After the end of the Opening Margin Period, the margin rates outlined above will remain as above, provided the total net leverage is greater than 3.00:1. Further, there is a cumulative step-down of 0.25% per annum in the margin (subject to a maximum of three step-downs in the case of Facility B1 and Facility B2) in the event that the total net leverage reaches each of the following total net leverage ratios:

(A)            Equal to or less than 3.00:1 but greater than 2.75:1;

(B) Equal to or less than 2.75:1 but greater than 2.50:1;

(C) Equal to or less than 2.50:1 but greater than 2.25:1; and

(D)            Equal to or less than 2.25:1.

Guarantees and security

The lenders will receive the benefit of guarantees and security in respect of each of the Facilities and guarantees and security will initially be provided by Midco 2, Bidco and Kelvin US Bidco, Inc. (a wholly-owned subsidiary of Bidco). Each of Midco 2, Bidco and Kelvin US Bidco, Inc. will guarantee the Facilities, and provide security over certain of their assets pursuant to certain security documents (the "Security Documents"). In due course after the Closing Date, other members of the Bidco Group will also provide guarantees and security as is customary for a transaction of this nature.

Representations, warranties, undertakings and events of default

The Senior Facilities Agreement contains representations and warranties, a financial covenant, undertakings (both operational and as regards certain information) and events of default that are customary for a financing of this nature.

Representations and warranties have been made (subject to various exceptions and materiality and other thresholds) regarding status, binding obligations, non-conflict with other obligations, power and authority, authorisations, no default and accuracy of information.

The Senior Facilities Agreement contains a financial covenant based on total net leverage that is initially set at 6.00:1, decreasing over time. The financial covenant will be first tested on the last day of the financial quarter falling at least four full financial quarters after the Closing Date. The Senior Facilities Agreement also contains operational general undertakings (subject to various exceptions and materiality and other thresholds) regarding, among other things, due authorisations, compliance with laws, tax, restrictions on demergers/mergers/consolidation/corporate reconstruction, pari passu ranking, arm's length dealings, pensions, access, intellectual property, insurance, additional guarantors and security, further assurance, incurring indebtedness, restricted payments, liens, disposal of assets, and the Acquisition. In addition, certain information undertakings will be given with respect to, amongst other things, the provision of financial statements and budgets, compliance certificates and annual lender presentations.

The events of default are customary for a secured financing of this type and are subject to various exceptions, materiality and other thresholds and grace periods.

Conditions precedent

The Senior Facilities Agreement sets out a number of conditions precedent to first utilisation (both documentary and otherwise) which include, among other things, the delivery of the Security Documents, the Intercreditor Agreement and customary officer's certificates setting out various confirmations in respect of applicable conditions being delivered.

The foregoing description is a high-level overview of key indicative terms of the Senior Facilities Agreement and ancillary documents.

 

END