Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject to the following conditions precedent: (a) The Effective Date shall have occurred. (b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers. (c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c). (d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d). (e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid. (f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). (g) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof. (h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached hereto as Exhibit B. (i) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders 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, that has been requested in writing not less than ten Business Days prior to the Closing Date. (j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct (but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01. (k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent. (l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02. (m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Qualcomm Inc/De)
Conditions to the Closing Date. The obligation This Agreement and the obligations of each Lender the Lenders to make a Loan Loans and of the Issuing Banks to make LC Credit Extensions hereunder shall become effective on the Closing Date is subject to first date when each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Effective Date shall have occurred.
(b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements the following, each of which shall be originals, telecopies or electronic copies unless otherwise specified, each properly executed by a Responsible Officer of the Borrower for signing Loan Party (except as otherwise provided below), each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period dated a date on or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, duly executed by each Loan Party and each of the Acquired Business for any quarterly interim period or periods other parties listed on the signature pages hereto;
(ii) counterparts of each Collateral Document required to be executed on the Closing Date, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity in the Borrower and in each wholly owned Domestic Subsidiary of the Borrower (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered those described under clause (ib) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each definition of clauses (i) through (ivExcluded Subsidiary), meeting accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the requirements of Regulation S-X under Pledged Debt (including the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph Intercompany Note) indorsed in blank (d).
(e) Any fees required or confirmation in lieu thereof reasonably satisfactory to be paid by the Borrower to the Arrangers, the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Lenders Collateral Agent or its counsel);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on or before assets of the Loan Parties that are parties to the Security Agreement, covering the Collateral described in the Security Agreement; and
(C) evidence that all other actions, recordings and filings required by the Collateral Documents (including the filing of the Intellectual Property Security Agreements with the United States Patent and Trademark Office and United States Copyright Office, as applicable) as of the Closing Date, including pursuant Date or that the Administrative Agent may deem reasonably necessary to any Fee Letter, satisfy the Collateral and Guarantee Requirement shall have been paid.
(f) Unless waived by taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, ;
(iii) a promissory note executed by the Borrower shall in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such ▇▇▇▇▇▇;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Loan Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(v) a certificate of good standing for each Loan Party from its jurisdiction of organization;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(a) and (b) have paid all feesbeen satisfied;
(vii) a favorable opinion of ▇▇▇▇▇, charges and disbursements of ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (directly to such counsel if requested by as of the Administrative AgentClosing Date);
(viii) evidence reasonably acceptable to the extent invoiced at least three Business Days prior to Collateral Agent that all applicable insurance policies of the Closing Date Loan Parties name the Collateral Agent as additional insured or loss payee, as appropriate;
(or such later date as agreed ix) the Perfection Certificate, duly completed and executed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).; and
(gx) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions).
(b) The Borrower shall have paid (or caused to be paid) all fees and expenses due to the Arrangers and the Lenders required to be paid on the Closing Date and, in the form attached hereto as Exhibit B.case of expenses, to the extent a reasonably detailed invoice has been delivered to the Borrower at least two Business Days prior to the Closing Date.
(ic) At On the Closing Date, neither the Borrower nor any of its Subsidiaries shall have any outstanding Indebtedness for borrowed money or Liens, other than the Revolving Facility (and Liens securing the Revolving Facility) and Indebtedness and Liens permitted under this Agreement.
(d) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, that has been as is reasonably requested in writing not less than by the Administrative Agent at least ten Business Days prior to the Closing Date.
(j) . At the time of and upon giving effect least three Business Days prior to the borrowing and application of the Loans on the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
(ie) each Acquisition Representation The IPO shall have been consummated (or shall be true and correct consummated substantially concurrently with the effectiveness of this Agreement).
(but only to f) The Arrangers shall have received the extent that the Borrower or its applicable affiliates have the right not to consummate the AcquisitionHistorical Financial Statements.
(g) Since December 31, or to terminate their respective obligations (or otherwise do not have an obligation to close)2018, under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist have occurred any Default change, event, occurrence, development, condition or Event effect that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, financial condition or results of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer operations of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b)and its Subsidiaries, (c), (j) and (k) of this Section 4.02taken as a whole.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation effectiveness of each Lender to make a Loan on this Agreement and the occurrence of the Closing Date is are subject to satisfaction of the following conditions precedent:
(a) The Effective following, each of which shall be originals or copies unless otherwise specified, each properly executed by a Responsible Officer of the signing Borrower Party, if applicable, each dated the Closing Date shall have occurred.
(b) The Buyer shall have paid (or, substantially contemporaneously in the case of certificates of governmental officials or any document or agreement (other than a Loan Document) executed and delivered to the Administrative Agent prior to the Closing Date, a recent date before the Closing Date) and each in form and substance satisfactory to each Lender, shall be delivered to the Lenders:
(i) (with a copy to the Administrative Agent) this Agreement, duly executed by the parties hereto;
(ii) a Note dated the Closing Date, executed by the Borrower in favor of each Lender requesting a Note;
(iii) the CASDA, duly executed by the Loan Parties and the Collateral Agent (with a copy to the Administrative Agent), together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions necessary to perfect the Liens created under the CASDA, covering the Collateral described in the CASDA;
(B) certified copies of (1) judgment lien searches with respect to each Loan Party and the Pledgor and (2) UCC and tax searches with respect to each Loan Party and the Pledgor, or equivalent reports or searches, each dated as of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name such Borrower Party as debtor and that are filed in those state and county jurisdictions in which such Borrower Party is organized or maintains its principal place of business, none of which show any Liens on the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens), together with the initial Borrowing hereunder, shall pay) for all shares Closing Date Certificate from a Responsible Officer of the Target initially validly tendered in the Offer pursuant Borrower certifying, inter alia, as to the Acquisition Agreement without giving effect satisfaction of the conditions in this Section 4.1(a)(iii)(B); 55 Credit and Guaranty Agreement
(C) evidence that any Liens in existence on or prior to the Closing Date on any modificationsportion of the Collateral not in favor of the Collateral Agent, consents, amendments or waivers thereto or thereunder that in each case are materially adverse shall have been (or substantially concurrently with the Closing Date, shall be) irrevocably released, terminated and/or discharged together with applicable recording instruments and UCC-3 financing statements which shall have been recorded and/or filed (or, shall be in a form suitable for recording and which shall be recorded substantially concurrently with the Closing Date) in all recording and/or filing offices necessary to give effect to such release, termination and/or discharge, except for any Permitted Liens;
(D) evidence that all other actions, recordings and filings that any Lenders may deem reasonably necessary to perfect the interests Liens created under the CASDA have been taken; and
(E) a copy of a Control Agreement in respect of any Local Operating Account open as of the Lenders or Closing Date as required under Section 6.25, duly executed by the ArrangersBorrower, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in Collateral Agent and the “Offer Consideration” relevant Local Bank (as defined in the Acquisition Agreement CASDA);
(iv) (with a copy to the Administrative Agent) the Pledge Agreement, duly executed by the Pledgor and the Collateral Agent, together with, to the extent applicable, certificates and instruments representing the “Pledged Collateral” referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(v) fully executed copies of (1) the Parent Guarantee, (2) the Fee Letter and (3) the Escrow Letter;
(vi) (A) a copy of each Construction Contract, duly executed by each of the parties thereto; and (B) a copy of the Electric Services Agreement, duly executed by each of the parties thereto, together with the Closing Date Certificate from a Responsible Officer of the Borrower, certifying that (1) such Material Project Contract is a true, complete and correct copy and is in full force and effect, (2) no Loan Party nor, to any Loan Party’s knowledge, any other Person party to such Material Project Contract, is in material breach or material default thereunder, and (3) all applicable conditions precedent, if any, thereunder to its effectiveness, have been satisfied or waived;
(vii) such certificates of Responsible Officers of each Borrower Party, dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of the bylaws, limited liability company agreement or partnership agreement, as applicable, of such Person, as in effect on October 27the Closing Date and at all times since the date of the resolutions described in clause (B) below, 2016(B) that attached thereto is a true and complete copy of resolutions duly adopted by the appropriate governing entity or body of such Borrower Party, authorizing the execution, delivery and performance of the Transaction Documents to which such Borrower Party is a party and, if applicable, the borrowing hereunder and the granting of the Liens contemplated to be granted by such Borrower Party under the Security Documents, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the articles or certificate of formation or other formation document, as applicable, of such Borrower Party has not been amended since the date of the last amendment thereto shown on such articles or certificate of formation or other formation document and (D) as to the incumbency and specimen signature of each officer of any Borrower Party executing any Loan Document or any other document delivered in connection herewith on behalf of such Borrower Party; 56 Credit and Guaranty Agreement
(viii) a copy of the articles or certificate of formation or other formation document, as applicable, including all amendments thereto, of each Borrower Party, and a certificate as to the good standing (or other jurisdictional equivalent, if any) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; providedsuch Person in its jurisdiction of incorporation or organization and, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth Borrower, in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) State of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amendedNorth Dakota, as of the a date of and for the period ending on the date of the latest financial statements delivered under clause no earlier than eleven (i11) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to may be incurred by it through the closing proceedings (reasonably extended provided that Borrower has delivered evidence reasonably acceptable to the Administrative Agent that it has requested such estimate shall not thereafter preclude updated copies from the North Dakota Secretary of State);
(ix) the Construction Mortgage, Security Agreement, Fixture Filing, Financing Statement and Assignment of Rents and Leases with Deficiency Rights, in substantially the form of Exhibit E and covering the property identified on Schedule 5.9(b) (together with the fixture filings and assignments of rents and leases referred to therein, the “Mortgage”) (with a final settling of accounts between the Borrower and copy to the Administrative Agent), duly executed by the applicable Subsidiary Guarantors, together with:
(A) evidence that counterparts of the Mortgage have been duly executed, acknowledged and delivered and are in form suitable for recording in all recording offices necessary to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid;
(B) a fully paid American Land Title Association Lender’s Extended Coverage title insurance policy (the “Mortgage Policy”), with endorsements and in amounts acceptable to the Lenders, issued, coinsured and reinsured by title insurers acceptable to the Lenders, insuring the Mortgage to be valid first and subsisting Liens on the real property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as the Lenders may deem reasonably necessary or desirable;
(C) American Land Title Association/National Society of Professional Surveyors form survey, for which all necessary fees (where applicable) have been paid, and dated no more than one hundred twenty (120) days before the Closing Date, certified to the Lenders and the issuer of each Mortgage Policy in a manner satisfactory to the Lenders by a land surveyor duly registered and licensed in the state in which the property described in such survey is located and acceptable to the Lenders, showing all buildings and other improvements (if any), the applicable zoning requirements sufficient to provide the ALTA Endorsement 3.2 (Zoning-Land Under Development) in the Mortgage Policy reasonably acceptable to the Administrative Agent, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Lenders; and 57 Credit and Guaranty Agreement
(D) the Flood Insurance Documents.
(gx) a favorable opinion of Milbank LLP, special New York and Delaware counsel to the Borrower Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender, as to the matters set forth in Exhibit F-1;
(xi) a favorable opinion of Crowley Fleck PLLP, local North Dakota counsel to the Borrower Parties, addressed to the Administrative Agent, the Collateral Agent and each Lender as to the matters set forth in Exhibit F-2;
(xii) a favorable opinion of Snell & Wilmer, local Nevada counsel to the Parent Guarantor, addressed to the Administrative Agent, the Collateral Agent and each Lender as to the matters set forth in Exhibit F-3;
(xiii) a Closing Date Certificate from a Responsible Officer of the Borrower certifying, inter alia, that the conditions specified in Sections 4.1(a)(iii)(B), 4.1(a)(vi), 4.1(d) and 4.1(i) have been satisfied;
(xiv) [Reserved]
(xv) a certificate attesting to the Solvency of the Loan Parties before and immediately after giving effect to the Closing Date, from the Borrower’s chief financial officer, treasurer or finance controller (or other equivalent officer), substantially in the form of Exhibit H;
(xvi) (A) the Property Appraisal, (B) the Environmental Site Assessment and (C) an advanced draft of the Insurance Consultant Report, and, in the case of clauses (A) and (B) above, to the extent that the Administrative Agent and the Lenders are not addressees thereof, reliance letters permitting the Administrative Agent and the Lenders to rely thereon; and
(xvii) insurance complying with Schedule 6.9 shall be in full force and effect and the Administrative Agent shall have received (A) customary certificates of insurance, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral, (B) a certificate from the Borrower’s and each Construction Contractor’s insurance broker(s), dated the Closing Date and identifying underwriters, type of insurance, insurance limits and policy terms, describing the insurance obtained and stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and the Borrower or each Construction Contractor, as applicable, is not in arrears on any premiums due in respect thereof, and (C) a certificate of the Insurance Consultant as to compliance with the insurance requirements set forth in this Agreement and other matters reasonably requested by the Lenders. 58 Credit and Guaranty Agreement
(b) [Reserved]
(c) The Administrative Agent shall have received:
(i) a payoff letter and/or termination letter in form and substance satisfactory to the Administrative Agent evidencing that, contemporaneously with the Closing Date and the making of any Loans on the Closing Date, the promissory note dated as of November 27, 2024 (the “Promissory Note”) with the Borrower, as borrower, payable to Macquarie Equipment Capital, Inc., a Delaware corporation, as lender, has been repaid in full; and
(ii) documentation in form and substance reasonably satisfactory to the Administrative Agent evidencing that, contemporaneously with the Closing Date and the making of any Loans on the Closing Date, (A) each of the Pledgor, the Borrower, APLD ELN-02, APLD ELN-02 A, APLD ELN-02 B and APLD ELN-02 C is released from its respective obligations as a “Parent Guarantor”, “Grantor” and “Pledgor”, as applicable, under that certain Parent Loan Guarantee (as defined in the Promissory Note), Guarantee and Collateral Agreement (as defined in the Promissory Note), and Pledge Agreement (as defined in the Promissory Note), as applicable, and any of the Note Documents (as defined in the Promissory Note) executed in connection therewith to which it is a party; (B) all Liens in connection with any of the Note Documents have been released and terminated; and (C) all Liens securing the Indebtedness in connection with the Promissory Note granted by each of the Pledgor, the Borrower, APLD ELN-02, APLD ELN-02 A, APLD ELN-02 B and APLD ELN-02 C have been released and terminated.
(d) Each of the Lenders shall have received an electronic copy of the financial model for the Project (the “Closing Date Financial Model”), which Closing Date Financial Model shall be in form and substance satisfactory to the Lenders, together with the Closing Date Certificate from a Responsible Officer of the Borrower certifying, inter alia, as to the satisfaction of the conditions in this Section 4.1(d).
(e) The Lender Parties shall have received documentation or information from each Borrower Party in satisfactory form, scope and substance requested by any Lender Party in order to enable such Lender Party to carry out all necessary “know your customer” or similar requirements and other information required by bank regulatory authorities, including those required to ensure compliance with applicable anti-money laundering rules and regulations in such Lender Party’s jurisdiction, including the PATRIOT Act; provided that any such request will have been made by each Lender Party to the Borrower Parties no later than three (3) Business Days before the Closing Date.
(f) The Lender Parties shall have received a Request for Beneficial Ownership Certification from each Borrower Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; provided that any such request will have been made by each Lender Party to the Borrower Parties no later than three (3) Business Days before the Closing Date. 59 Credit Extension and Guaranty Agreement
(i) The Project Accounts shall have been established and (ii) the Interest Reserve Account shall have been established and, after giving effect to the Borrowing on the Closing Date and the application of the proceeds thereof, funded in accordance with the requirements hereofan amount not less than $15,694,718.75.
(h) The Administrative Agent shall have received a solvency certificate from All out of pocket costs, fees and expenses due and payable (including reasonable and documented fees and expenses of legal counsel and other advisors and consultants to the chief financial officer of Lender Parties and the Borrower Depositary, including the Property Appraiser and the Insurance Consultant) and other compensation or premiums due and payable to the Lender Parties and the Depositary and under the Loan Documents (including the Fee Letter) on or before the Closing Date (other than in the form attached hereto as Exhibit B.
case of fees, to the extent invoiced not less than three (i3) At least three Business Days prior to the Closing Date, the Borrower ) shall have provided to been paid (or shall be paid from the Administrative Agent and the Lenders 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, that has been requested in writing not less than ten Business Days prior to the Closing Date.
(j) At the time of and upon giving effect to the borrowing and application proceeds of the Loans Borrowing on the Closing Date, ).
(i) each Acquisition Representation shall be true The representations and correct (but only to the extent that warranties of the Borrower contained in Article V or its applicable affiliates have any other Loan Document to which the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as Borrower is a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations party shall be true and correct in all material respects on and as of the Closing Date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (or, with respect to any representation or warranty if qualified by reference to materiality or “materiality,” “Material Adverse Effect” or similar language, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (arespects after giving effect to such qualification), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent No Default shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.exist
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Applied Digital Corp.)
Conditions to the Closing Date. The obligation This Agreement and the obligations of each Lender the Lenders to make a Loan Loans and of the Issuing Banks to make LC Credit Extensions hereunder shall become effective on the Closing Date is subject to first date when each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Effective Date shall have occurred.
(b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements the following, each of which shall be originals, telecopies or electronic copies unless otherwise specified, each properly executed by a Responsible Officer of the Borrower for signing Loan Party (except as otherwise provided below), each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period dated a date on or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, duly executed by each Loan Party and each of the Acquired Business for any quarterly interim period or periods other parties listed on the signature pages hereto;
(ii) counterparts of each Collateral Document required to be executed on the Closing Date, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity in the Borrower and in each wholly owned Domestic Subsidiary of the Borrower (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered those described under clause (ib) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each definition of clauses (i) through (ivExcluded Subsidiary), meeting accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the requirements of Regulation S-X under Pledged Debt (including the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph Intercompany Note) indorsed in blank (d).
(e) Any fees required or confirmation in lieu thereof reasonably satisfactory to be paid by the Borrower to the Arrangers, the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Lenders Collateral Agent or its counsel);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on or before assets of the Loan Parties that are parties to the Security Agreement, covering the Collateral described in the Security Agreement; and
(C) evidence that all other actions, recordings and filings required by the Collateral Documents (including the filing of the Intellectual Property Security Agreements with the United States Patent and Trademark Office and United States Copyright Office, as applicable) as of the Closing Date, including pursuant Date or that the Administrative Agent may deem reasonably necessary to any Fee Letter, satisfy the Collateral and Guarantee Requirement shall have been paid.
(f) Unless waived by taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, ;
(iii) a promissory note executed by the Borrower shall in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Loan Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(v) a certificate of good standing for each Loan Party from its jurisdiction of organization;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(a) and (b) have paid all feesbeen satisfied;
(vii) a favorable opinion of Fried, charges and disbursements of Frank, Harris, S▇▇▇▇▇▇ & J▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (directly to such counsel if requested by as of the Administrative AgentClosing Date);
(viii) evidence reasonably acceptable to the extent invoiced at least three Business Days prior to Collateral Agent that all applicable insurance policies of the Closing Date Loan Parties name the Collateral Agent as additional insured or loss payee, as appropriate;
(or such later date as agreed ix) the Perfection Certificate, duly completed and executed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).; and
(gx) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions).
(b) The Borrower shall have paid (or caused to be paid) all fees and expenses due to the Arrangers and the Lenders required to be paid on the Closing Date and, in the form attached hereto as Exhibit B.case of expenses, to the extent a reasonably detailed invoice has been delivered to the Borrower at least two Business Days prior to the Closing Date.
(ic) At On the Closing Date, neither the Borrower nor any of its Subsidiaries shall have any outstanding Indebtedness for borrowed money or Liens, other than the Revolving Facility (and Liens securing the Revolving Facility) and Indebtedness and Liens permitted under this Agreement.
(d) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, that has been as is reasonably requested in writing not less than by the Administrative Agent at least ten Business Days prior to the Closing Date.
(j) . At the time of and upon giving effect least three Business Days prior to the borrowing and application of the Loans on the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
(ie) each Acquisition Representation The IPO shall have been consummated (or shall be true and correct consummated substantially concurrently with the effectiveness of this Agreement).
(but only to f) The Arrangers shall have received the extent that the Borrower or its applicable affiliates have the right not to consummate the AcquisitionHistorical Financial Statements.
(g) Since December 31, or to terminate their respective obligations (or otherwise do not have an obligation to close)2018, under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist have occurred any Default change, event, occurrence, development, condition or Event effect that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, financial condition or results of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer operations of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b)and its Subsidiaries, (c), (j) and (k) of this Section 4.02taken as a whole.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation of the L/C Issuer and each Lender to make a Loan its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Effective Date Administrative Agent's receipt of the following, each of which shall have occurred.be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date:
(bi) The Buyer shall have paid a pledge agreement, in substantially the form of Exhibit G (or, substantially contemporaneously together with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer each other security agreement and security agreement supplement delivered pursuant to the Acquisition Agreement without giving effect to any modificationsSection 6.12, consents, amendments or waivers thereto or thereunder that in each case are materially adverse as amended, the "Pledge Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(B) proper Financing Statements in form appropriate for filing under the interests Uniform Commercial Code of all jurisdictions that the Lenders Administrative Agent may deem necessary or desirable in order to perfect the ArrangersLiens created under the Pledge Agreement, unless covering the Arrangers shall have provided their written consent thereto (it being understood that any reduction Collateral described in the “Offer Consideration” Pledge Agreement,
(as defined C) evidence that all other actions, recordings and filings that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration Liens created under the Acquisition Pledge Agreement which may be funded have been taken;
(ii) evidence of (A) the substantial simultaneous repayment, defeasance or call for redemption (together with such Trancheconcurrent discharge thereof). Any modifications, consentsas applicable, amendments or waivers to the Acquisition Agreement that of (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%Existing Credit Agreements, (ii) increases the Offer Consideration by more than 10Borrower's 6.190% or notes due July 5, 2016, (iii) makes any modification to Sections 2.04(a)(vthe Borrower's 6.140% notes due January 20, 2017, (iv) or 2.05(athe Borrower's 2.590% notes due September 28, 2017, (v) of the Acquisition Agreement Borrower's 3.275% notes due January 20, 2017 and (pertaining vi) the Borrower's 1.676% notes due May 25, 2022 (clauses (ii) through (vi), collectively, the "Existing Notes"), and (B) to the Buyer’s representation on extent applicable, the Target’s board termination of directors) that would result in less than a majority any commitments under any Indebtedness pursuant to clause (A), the release of the directors on the board any guarantees of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior such Indebtedness and, to the Closing Date), shallextent applicable, in each case, be deemed to be materially adverse to the Lenders discharge of all Liens and security interests securing such Indebtedness (including receipt of payoff letters, UCC-3 termination statements and other applicable terminations) (collectively, the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review"Refinancing"); and
(iii) audited financial statements (A) a favorable opinion of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached hereto as Exhibit B.
(i) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders 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, that has been requested in writing not less than ten Business Days prior to the Closing Date.
(j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct (but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & B▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties and (B) a favorable opinion of D. M▇▇▇▇▇▇ ▇▇▇▇▇, Utah counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection theretoLenders.
Appears in 1 contract
Conditions to the Closing Date. The obligation effectiveness of each Lender to make a Loan this Agreement on the Closing Date is subject to the satisfaction of the following conditions precedent:
(a) The Effective Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date shall have occurred.
(b) The Buyer shall have paid (or, substantially contemporaneously with in the initial Borrowing hereundercase of certificates of governmental officials, shall paya recent date before the Closing Date) for all shares and each in form and substance satisfactory to the Administrative Agent and each of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that Lenders:
(i) modifies the definition executed counterparts of “Minimum Condition” (as defined this Agreement, sufficient in the Acquisition Agreement as in effect on October 27, 2016 and which, number for the avoidance of doubt, will include any elections that the Buyer may make with respect distribution to the Minimum Condition as set forth in Administrative Agent, each Lender, the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, Borrower and each Guarantor;
(ii) increases resolutions, written consents, incumbency certificates and/or other organizational documents certified by a Responsible Officer of each Loan Party in a form substantially consistent with those delivered in connection with the Offer Consideration by more than 10% or Prepetition Term Loan Credit Agreement;
(iii) makes any modification to Sections 2.04(a)(vgood standing certificates (or similar document, as applicable in the applicable jurisdiction) or 2.05(afor each Loan Party;
(iv) a certificate signed by a Responsible Officer of the Acquisition Agreement Borrower certifying (pertaining to the Buyer’s representation on the Target’s board of directorsi) that would result the conditions specified in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing DateSections 4.02(b), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c), (h) Since the date of the Acquisition Agreementand (i) have been satisfied and (ii) that there has been no event or circumstance since June 30, there shall not have occurred any Effect 2016 that would have has had or could be reasonably be expected to have, either individually or in the aggregate, a Target Material Adverse EffectEffect other than events or circumstances that affect the oil field service industry generally;
(A) the DIP Budget and (B) the initial Rolling Budget;
(vi) a Note executed by the Borrower in favor of each Lender requesting a Note;
(vii) the Fee Letter executed by the parties thereto;
(viii) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; provided that clause (ii) of the definition of Target Material Adverse Effect foregoing shall be excluded from deemed to be satisfied to the extent such definition certificates or instruments in existence on the Closing Date have been delivered to the Pre-Petition Term Loan Administrative Agent, and
(B) Uniform Commercial Code financing statements in form appropriate for filing in all jurisdictions that the purposes of determining Administrative Agent may deem necessary or desirable in order to perfect the satisfaction of this paragraph (c)Liens created under the Security Agreement, covering the Collateral described in the Security Agreement.
(dix) unless the Administrative Agent shall have otherwise agreed to that the following requirements may be satisfied after the Closing Date pursuant to arrangements to be agreed, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral.
(b) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other not less than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached hereto as Exhibit B.
(i) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information about the Borrower and the Guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the USA PATRIOT Act, Act that has been requested by the Administrative Agent in writing not less than ten five Business Days prior to the Closing Date.
(jc) At The Restructuring Support Agreement shall become effective and binding pursuant to Section 12 thereof, and shall not have been terminated.
(d) The Acceptable Plan of Reorganization and the time Acceptable Disclosure Statement shall have been filed in each of the Cases on the Petition Date.
(e) The Cases of any of the Debtors shall have not been dismissed or converted to cases under Chapter 7 of the Bankruptcy Code.
(f) No trustee under Chapter 11 of the Bankruptcy Code or examiner with enlarged powers beyond those set forth in sections 1106(a)(3) and upon giving effect (4) of the Bankruptcy Code shall have been appointed in any of the Cases of the Debtors.
(g) All “first day” orders and all related pleadings intended to be entered on or prior to the borrowing and application date of entry of the Loans on Interim Order shall have been entered by the Closing DateBankruptcy Court, shall not have been modified, stayed or vacated (except with the consent of the Required Lenders, and shall be reasonably satisfactory in form and substance to the Required Lenders, [it being understood that drafts approved by counsel to the Required Lenders prior to the Petition Date are reasonably satisfactory.]
(h) Within four business days after the Petition Date (or such later date as the Required Lenders may agree in their sole discretion), the Bankruptcy Court shall have entered the Interim Order.
(i) each Acquisition Representation The Borrower shall be true and correct (but only have made no payments after the Petition Date on account of any Indebtedness arising prior to the extent that Petition Date unless such payment is made (i) with the Borrower consent of the Required Lenders in their sole discretion or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) pursuant to “first day” orders reasonably acceptable to the Specified Representations shall be true Required Lenders.
(j) The entry into this Agreement and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there the other Loan Documents shall not exist violate any Default requirement of law and shall not be temporarily, preliminarily or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01permanently enjoined.
(k) All amounts due or outstanding in respect The unrestricted cash balances and Cash Equivalents of the following facilities of the Acquired Business Borrower and its consolidated Subsidiaries shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agentnot be less than $2,500,000.
(l) The Administrative Agent Borrower shall have received a certificate dated satisfied all requirements set forth in Section 4.02 with respect to the Closing Date from a Responsible Officer of Initial Advance and shall have borrowed the Borrower confirming Initial Advance substantially simultaneously with the satisfaction of the conditions precedent described set forth in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent4.01. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Closing Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Basic Energy Services Inc)
Conditions to the Closing Date. The obligation This Agreement and the obligations of each Lender the Lenders to make a Loan Loans and of the Issuing Banks to make LC Credit Extensions hereunder shall become effective on the Closing Date is subject to first date when each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Effective Date shall have occurred.
(b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements the following, each of which shall be originals, telecopies or electronic copies unless otherwise specified, each properly executed by a Responsible Officer of the Borrower for signing Loan Party (except as otherwise provided below), each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period dated a date on or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, duly executed by each Loan Party and each of the Acquired Business for any quarterly interim period or periods other parties listed on the signature pages hereto;
(ii) counterparts of each Collateral Document required to be executed on the Closing Date, duly executed by each Loan Party party thereto, together with:
(A) certificates, if any, representing the Pledged Equity in the Borrower and in each wholly owned Domestic Subsidiary of the Borrower (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered those described under clause (ib) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each definition of clauses (i) through (ivExcluded Subsidiary), meeting accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the requirements of Regulation S-X under Pledged Debt (including the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph Intercompany Note) indorsed in blank (d).
(e) Any fees required or confirmation in lieu thereof reasonably satisfactory to be paid by the Borrower to the Arrangers, the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Lenders Collateral Agent or its counsel);
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under the Security Agreement on or before assets of the Loan Parties that are parties to the Security Agreement, covering the Collateral described in the Security Agreement; and
(C) evidence that all other actions, recordings and filings required by the Collateral Documents (including the filing of the Intellectual Property Security Agreements with the United States Patent and Trademark Office and United States Copyright Office, as applicable) as of the Closing Date, including pursuant Date or that the Administrative Agent may deem reasonably necessary to any Fee Letter, satisfy the Collateral and Guarantee Requirement shall have been paid.
(f) Unless waived by taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent, ;
(iii) a promissory note executed by the Borrower shall in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Loan Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents;
(v) a certificate of good standing for each Loan Party from its jurisdiction of organization;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(a) and (b) have paid all feesbeen satisfied;
(vii) a favorable opinion of Fried, charges and disbursements of Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (directly to such counsel if requested by as of the Administrative AgentClosing Date);
(viii) evidence reasonably acceptable to the extent invoiced at least three Business Days prior to Collateral Agent that all applicable insurance policies of the Closing Date Loan Parties name the Collateral Agent as additional insured or loss payee, as appropriate;
(or such later date as agreed ix) the Perfection Certificate, duly completed and executed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).; and
(gx) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions).
(b) The Borrower shall have paid (or caused to be paid) all fees and expenses due to the Arrangers and the Lenders required to be paid on the Closing Date and, in the form attached hereto as Exhibit B.case of expenses, to the extent a reasonably detailed invoice has been delivered to the Borrower at least two Business Days prior to the Closing Date.
(ic) At On the Closing Date, neither the Borrower nor any of its Subsidiaries shall have any outstanding Indebtedness for borrowed money or Liens, other than the Revolving Facility (and Liens securing the Revolving Facility) and Indebtedness and Liens permitted under this Agreement.
(d) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, including the PATRIOT Act, that has been as is reasonably requested in writing not less than by the Administrative Agent at least ten Business Days prior to the Closing Date.
(j) . At the time of and upon giving effect least three Business Days prior to the borrowing and application of the Loans on the Closing Date, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
(ie) each Acquisition Representation The IPO shall have been consummated (or shall be true and correct consummated substantially concurrently with the effectiveness of this Agreement).
(but only to f) The Arrangers shall have received the extent that the Borrower or its applicable affiliates have the right not to consummate the AcquisitionHistorical Financial Statements.
(g) Since December 31, or to terminate their respective obligations (or otherwise do not have an obligation to close)2018, under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist have occurred any Default change, event, occurrence, development, condition or Event effect that, individually or in the aggregate, is or would reasonably be expected to be materially adverse to the business, financial condition or results of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer operations of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b)and its Subsidiaries, (c), (j) and (k) of this Section 4.02taken as a whole.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation of each Lender to make a the Term Loan on the Closing Date hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Effective Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note;
(iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(iv) an opinion by ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date shall before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have occurredbeen satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares As of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without Closing Date, after giving effect to the Transaction, the Loan Parties will have no Indebtedness other than the Facility and any modificationsSurviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Existing Credit Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, consentsall commitments (if any) in respect thereof terminated, amendments all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or waivers thereto or thereunder that documentation in each case are materially adverse form and substance reasonably satisfactory to the interests of the Lenders or the Arrangers, unless the Arrangers Administrative Agent to effect such release upon such repayment and termination shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse been delivered to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the ArrangersAdministrative Agent.
(c) Since In order to create in favor of Collateral Agent, for the date benefit of the Acquisition AgreementLenders, there shall not have occurred any Effect that would have or reasonably be expected to havea valid, individually or perfected first priority security interest in the aggregatepersonal property Collateral, a Target Material Adverse Effect; Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided that clause therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the definition security interests in favor of Target Material Adverse Effect Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be excluded from such definition for the purposes of determining the satisfaction of this paragraph taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (cincluding without limitation, (any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (iincluding all leasehold Mortgages) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (iiig) audited financial statements of the Acquired Business for each definition of its three most recent fiscal years ended at least 60 days prior to the Closing Date “Collateral and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d)Guarantee Requirement”.
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each calendar month ended at least thirty-one (31) days before the Closing Date, (iv) a Request plan with respect to Borrower’s Capital Expenditures during the term of this Agreement and (v) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Credit Extension Fiscal Year 2019 and on a quarterly basis for Fiscal Year 2020, 2021 and Fiscal Year 202 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the requirements hereoftime of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received a solvency certificate from reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the chief financial officer of the Borrower in the form attached hereto Collateral Agent shall be named as Exhibit B.an additional loss payee and additional insured, as applicable, thereunder.
(i) At least three Business Days The Lenders shall have received on or prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, including without limitation, limitation the PATRIOT ActAct and customary management background checks, that has been in order to allow the Lenders to comply therewith, in each case, to the extent requested in writing not less than ten at least five (5) Business Days prior to the Closing Date.
(j) At the time The Administrative Agent shall have received a certificate signed by a Responsible Officer of and upon giving effect Borrower certifying as to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct (but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correctSections 4.01(k), (iil) and (m) in substantially the Specified Representations form of Exhibit I.
(k) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (oron and as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, with respect to they shall be true and correct in all material respects as of such earlier date; provided further that any representation or and warranty that is qualified by reference as to materiality or “materiality”, “Material Adverse Effect, ” or similar language shall be true and correct (after giving effect to any qualification therein) in all respectsrespects on such respective dates.
(l) and (iii) there shall not exist any No Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01shall exist.
(km) All amounts due There is no action, suit, investigation or outstanding proceeding pending or, to the knowledge of Borrower, threatened in respect of the following facilities of the Acquired Business shall any court or before an arbitrator or governmental authority that could reasonably be expected to have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agenta Material Adverse Effect.
(ln) The Administrative Agent shall have received a certificate dated satisfactory evidence that Consolidated Adjusted EBITDA for the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably trailing 12 month period most recently ended is not less than $5,500,000 with adjustments satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness of the Commitments and the obligation of each any Lender to make a Loan on the Closing Date is are subject to the satisfaction (or waiver in accordance with Section 9.05) solely of the following conditions precedentconditions:
(a) The Effective Date shall have occurred.
(b) The Buyer receipt by the Administrative Agent of:
(i) a Notice of Borrowing as required by Section 2.02; and
(ii) a Solvency Certificate.
(c) all fees and expenses required to be paid on or before the Closing Date (in the case of expenses, for which the Borrower has been billed at least two (2) Domestic Business Days prior to the Closing Date), including the reasonable and documented fees and expenses of one counsel for the Administrative Agent and the Lead Arranger shall have paid been paid;
(or, substantially contemporaneously d) the Acquisition shall have been consummated or will be consummated concurrently with the initial Borrowing hereunder, shall pay) for all shares funding of the Target initially validly tendered Loans in the Offer pursuant to accordance with the Acquisition Agreement without giving effect and no amendment, modification, consent or waiver of any term thereof or any condition to the Buyer’s obligation to consummate the Acquisition thereunder (other than any such amendment, modification, consent or waiver that is not materially adverse to any modificationsinterest of the Lenders) shall have been made or granted, consentsas the case may be, amendments without the prior written consent of the Lead Arranger (it being understood that (i) any change in the consideration payable or waivers thereto the price (excluding any price decrease of less than 10% of the consideration paid or thereunder that payable or any price increase funded with equity of the Borrower less than such 10%), (ii) any material change to the structure of the Acquisition and (iii) any change in the definition of “Material Adverse Effect” or any lender protection provisions set forth in the Acquisition Agreement on September 20, 2018, in each case are will be deemed to be materially adverse to the interests of the Lenders or and will require the Arrangers, unless the Arrangers shall have provided their prior written consent thereto of the Lead Arranger);
(it being understood that any reduction e) except as set forth in Section 3.8 of the “Offer Consideration” Seller Disclosure Schedule (as defined in the Acquisition Agreement on September 20, 2018) as in effect on October 27September 20, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided2018, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modificationssince December 31, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, 2017 there shall not have occurred been any Effect change, event or development that would have or reasonably be expected to havewould, individually or in the aggregate, have a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.;
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached hereto as Exhibit B.
(i) At least three Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders 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, that has been requested in writing not less than ten Business Days prior to the Closing Date.
(j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct (but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under of the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true Representations and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iiiii) there shall not exist any Default or Event of Default under paragraph clauses (a), (e)(i)(Ag) or (fh) of Section 8.01.6.01;
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(lg) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs clauses (bd), (c), (je) and (kf) of this Section 4.02.3.02; and
(mh) The Administrative Agent shall have received a favorable opinion (i) audited consolidated financial statements of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel the Borrower for each of the last three full fiscal years ended more than 90 days prior to the BorrowerClosing Date and (ii) unaudited consolidated financial statements of the Borrower for each subsequent fiscal quarter ended more than 45 days prior to the Closing Date (and for the corresponding period(s) of the prior fiscal year), addressed to all of which shall have been reviewed by the independent accountants for the Borrower as provided in Statement on Auditing Standards No. 100; provided that the Administrative Agent and each Lender, as to the registration status hereby acknowledges that it has received audited consolidated financial statements of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality respect of the provisions immediately preceding clause (i) for the fiscal years ended 2015, 2016 and 2017 and the unaudited consolidated financial statements of the last paragraph Borrower in respect of Section 9.03the immediately preceding clause (ii) for the fiscal quarters ending March 31, for 2018, June 30, 2018 and September 30, 2018. For purposes of determining compliance with the conditions specified in Sections 4.01 3.01 and 4.023.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless such document has been posted to the Lenders and the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation of each Lender to make a Loan the Loans on the Closing Date is subject to the satisfaction (or waiver by the Administrative Agent) of the following conditions precedent, and only the following conditions precedent, on the Closing Date:
(a) The Effective Date Borrowing of such Loans shall have occurred.
occur on or before the Ellie Mae Acquisition Date, which shall be on or before the earlier to occur of (bi) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares termination or expiration of the Target initially validly tendered in the Offer pursuant to the Ellie Mae Acquisition Agreement without giving effect to any modificationsin accordance with its terms, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto and (it being understood that any reduction in ii) the “Offer ConsiderationOutside Date” (as defined in the Ellie Mae Acquisition Agreement as in effect on October 27August 6, 20162020) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which such date may be funded extended in accordance with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Ellie Mae Acquisition Agreement as in effect on October 27August 6, 2016 and which2020 (but in any event not later than August 6, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date2021), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.;
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(gb) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from of the chief financial officer of the Borrower as to the solvency of the Borrower and its Subsidiaries, on a consolidated basis, in the form attached hereto of Exhibit F;
(c) The conditions set forth in Article VII of the Ellie Mae Acquisition Agreement (other than those conditions that by their nature are to be satisfied at the “Closing” (as Exhibit B.defined in the Ellie Mae Acquisition Agreement)) shall be satisfied substantially in accordance with the terms and conditions of the Ellie Mae Acquisition Agreement without giving effect to any waiver, modification or consent thereunder that is materially adverse to the Lenders or the Initial Arranger (as reasonably determined by the Initial Arranger) unless approved by the Initial Arranger (which approval shall not be unreasonably withheld, conditioned or delayed);
(d) The representations and warranties of the Borrower set forth in Sections 4.1(i), 4.1(ii) (but only with respect to the Borrower’s power and authority to execute, deliver and perform the Credit Documents), 4.2, 4.3 (but only with respect to clause (i) At least three Business Days prior to the Closing Datetherein), the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations4.7, including4.11, without limitation, the PATRIOT Act, that has been requested in writing not less than ten Business Days prior to the Closing Date.
(j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct 4.12 (but only with respect to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result Borrower’s use of a failure of such Acquisition Representation to be true proceeds) and correct), (ii) the Specified Representations 4.13 shall be true and correct in all material respects (or, with respect to except that any representation or and warranty qualified by reference as to materiality or Material Adverse Effect, Effect shall be true and correct in all respects);
(e) and (iii) there shall not exist any Default or No Event of Default under paragraph (aSection 8.1(a), (e)(i)(A8.1(f) or 8.1(g), nor any “event of default” or similar condition under the Bridge Facility, the Revolving Credit Agreement (unless terminated on or prior to the Closing Date), or any other Indebtedness in excess of the Threshold Amount in the aggregate (but only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred and be continuing on such date, both immediately before and immediately after giving effect to the Loans to be made on such date;
(f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated Notice of Borrowing in accordance with Section 2.2(b) and, if any LIBOR Loans are to be borrowed on the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel such date is prior to the Borrowerthird Business Day after the Effective Date, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice received, three Business Days prior to such date, a customary pre-funding LIBOR indemnity letter from the Borrower;
(g) The aggregate principal of such Lender Loans shall not exceed the aggregate Commitments at such time (determined without giving effect to such Loans);
(h) All fees and (to the extent invoiced at least two Business Days prior to the proposed Closing Date) expenses due to the Initial Arranger, the Administrative Agent and the Lenders required to be paid on the Closing Date (including the fees and expenses of counsel for the Initial Arranger and the Administrative Agent) will have been paid; and
(i) The Effective Date or Closing Date, as applicable, specifying its objection theretoshall have occurred.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make a the Term Loan on the Closing Date hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Effective Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note;
(iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(iv) an opinion by ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date shall before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have occurredbeen satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares As of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any modificationsSurviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, consentsall commitments (if any) in respect thereof terminated, amendments all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or waivers thereto or thereunder that documentation in each case are materially adverse form and substance reasonably satisfactory to the interests of the Lenders or the Arrangers, unless the Arrangers Administrative Agent to effect such release upon such repayment and termination shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse been delivered to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the ArrangersAdministrative Agent.
(c) Since In order to create in favor of Collateral Agent, for the date benefit of the Acquisition AgreementLenders, there shall not have occurred any Effect that would have or reasonably be expected to havea valid, individually or perfected first priority security interest in the aggregatepersonal property Collateral, a Target Material Adverse Effect; Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided that clause therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the definition security interests in favor of Target Material Adverse Effect Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be excluded from such definition for taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the purposes landlord of determining any leasehold property and by the satisfaction of this paragraph applicable Loan Party and (cii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (iincluding all leasehold Mortgages) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (iiig) audited financial statements of the Acquired Business for each definition of its three most recent fiscal years ended at least 60 days prior to the Closing Date “Collateral and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d)Guarantee Requirement”.
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a Request monthly basis for Credit Extension Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the requirements hereoftime of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received a solvency certificate from reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the chief financial officer of the Borrower in the form attached hereto Collateral Agent shall be named as Exhibit B.an additional loss payee and additional insured, as applicable, thereunder.
(i) At least three Business Days Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, including without limitation, limitation the PATRIOT ActAct and customary management background checks, that has been in order to allow the Lenders to comply therewith, in each case, to the extent requested in writing not less than ten at least five (5) Business Days prior to the Closing Date.
(j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each Acquisition Representation shall be true and correct (but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date 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: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from signed by a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (bcertifying as to Sections 4.01(m), (c), (jn) and (ko) in substantially the form of this Section 4.02.Exhibit I.
(m) The Administrative Agent representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall have received a favorable opinion be true and correct in all material respects on and as of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(n) No Default or Event of Default shall exist.
(o) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, threatened in form and substance any court or before an arbitrator or governmental authority that could reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed expected to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date, as applicable, specifying its objection theretoMaterial Adverse Effect.
Appears in 1 contract