On January 15, 2019, the Fairfax Investment was consummated. The 2026 Notes, which are senior
obligations of the Company, were issued under an Indenture, dated October 10, 2017 (the Base Indenture), between the Company and The Bank of New York Mellon, as trustee (the Trustee), as amended and supplemented by a
ninth supplemental indenture (the Ninth Supplemental Indenture and, together with the Base Indenture, the 2026 Indenture), dated January 15, 2019, by and among the Company, the subsidiary guarantors of the Company
specified therein (the Guarantors) and the Trustee, which establishes the terms and provides for the issuance of the 2026 Notes. In connection with the transaction, on January 15, 2019, the Company also entered into a warrant
agreement (the Warrant Agreement) with the Fairfax Investors to, among other things, establish the terms of the Warrants. The Company intends to use the proceeds from the Fairfax Investment to fund future growth initiatives, repay debt
and for general corporate purposes.
The 2026 Notes and the Warrants were offered and sold by the Company to the Fairfax Investors in transactions exempt
from registration under the U.S. Securities Act of 1933, as amended (the Securities Act), pursuant to Section 4(a)(2) and Regulation S thereunder.
Subscription Agreement
The Subscription Agreement
contains customary representations, warranties and agreements by the Company and the Guarantors, customary obligations of the parties and termination provisions. In addition, the Company and the Guarantors have agreed to indemnify the Fairfax
Investors against certain liabilities, including liabilities with respect to any misrepresentation or any breach of any representation, warranty, covenant agreement or obligation of the Company or any Guarantor.
On January 15, 2019, the Guarantors were added as parties to the Subscription Agreement pursuant to a joinder agreement among the Guarantors and the
Fairfax Investors.
2026 Notes, 2026 Guarantees and 2026 Indenture
Interest
The 2026 Notes will bear interest at 5.50% per
annum. Interest on the 2026 Notes will be payable quarterly in arrears on January 30, April 30, July 30 and October 30 of each year, commencing on April 30, 2019. The 2026 Notes will mature on January 15, 2026 unless
earlier repurchased or redeemed. The interest rate on the 2026 Notes will be increased during the continuation of certain registration defaults under the 2019 Registration Rights Agreement (as defined below).
Optional Redemption
On or after January 15, 2024,
the Company may, at its option, at any time redeem all or any portion of the 2026 Notes. The redemption price will equal 100% of the principal amount of the 2026 Notes being redeemed, plus accrued and unpaid interest, if any, to the redemption date
and any additional amounts described under Additional Amounts.
If the Company becomes obligated to pay additional amounts under the
2026 Notes as a result of changes affecting certain withholding taxes, the Company may, at its option, redeem all, but not less than all, of the 2026 Notes at 100% of their principal amount, plus accrued and unpaid interest, if any, to the
redemption date and any such additional amounts.
Change of Control Put Option
If a Change of Control (as defined in the Indenture and which includes, among other things, certain major corporate events) occurs at any time, holders of the
2026 Notes will have the right, at their option, to require the Company to repurchase for cash any or all of their 2026 Notes. The price for any such repurchase will be 101% of the principal amount of the 2026 Notes to be repurchased plus accrued
and unpaid interest to the repurchase date, or any portion of the principal amount thereof, that is equal to $1,000 or a multiple of $1,000.
Annual
Put Right
Once a year, each holder of the 2026 Notes may, at its option, require the Company to purchase for cash any and all of the 2026 Notes held
by such holder for a price equal to 100% of the principal amount of the 2026 Notes to be purchased plus accrued and unpaid interest and any additional amounts that shall become payable in respect of the 2026 Notes pursuant to the 2019 Registration
Rights Agreement as a result of a registration default under the 2019 Registration Rights Agreement, if any, to but excluding the Annual Put Right Purchase Date (as defined in the 2026 Indenture).