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 Xxxxxx Xxxxxxx 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 & Xxxxx 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
Samples: Credit Agreement (Qualcomm Inc/De)
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans on the Closing Date is are subject to each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.01(e)(i)Section 9.02) on or prior to the Closing Date:
(a) The the Effective Date shall have occurredoccurred or shall occur simultaneously with the Closing Date.
(b) The Buyer the Administrative Agent shall have paid received the executed legal opinion of Xxxxx Xxxxxxx LLP, U.S. counsel to the Borrower (or, substantially contemporaneously in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the initial Borrowing hereunder, shall pay) for all shares effectiveness of the Target initially validly tendered credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Offer pursuant to Investment Agreements, and the Acquisition Agreement without giving effect to Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any modifications, consents, amendments or waivers thereto or thereunder respect that in each case are is materially adverse to the interests of the Lenders or the Arrangers without the Arrangers, unless the Arrangers shall have provided their ’ prior written consent thereto (it being understood and agreed that (i) any reduction amendment, modification, waiver or consent that results in a change to the definition of the term “Offer ConsiderationMaterial Adverse Effect” (as defined in the Acquisition Agreement as in effect on October 27, 2016Subscription Agreement) 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.
, and (cii) Since (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Investment Consideration, together with any other increases since the date of the Acquisition Agreement, there shall Commitment Letter which does 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) exceed 5% of the definition of Target Material Adverse Effect Investment Consideration, in each case shall be excluded from such definition for deemed not to be materially adverse to the purposes of determining the satisfaction of this paragraph (cLenders).;
(d) The since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of Canopy set forth therein;
(f) the Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the Closing Date and executed by a Financial Officer of the Company;
(g) the Specified Representations and Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arrangers shall have received:
(i) with respect to the Company and its Subsidiaries, (i) audited financial consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for 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 recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited financial consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent last audited financial statements (and corresponding periods of any prior year) and more than at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(ii) with respect to which independent auditors shall have performed a SAS 100 review); the Target and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions)its Subsidiaries, 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 audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) above, as applicable, regardless unaudited consolidated balance sheets and related unaudited statements of when comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the Borrower is required to file such last audited financial statements with and at least 46 days prior to the Securities Closing Date (the “Target Interim Financial Statements”); provided that filing of the required financial statements on Form 40-F and Exchange Commission, and in each of clauses Form 6-K by the Target will satisfy the foregoing requirements;
(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 shall have received a Borrowing Request in accordance with Section 2.03; and
(j) the Lenders on or before Company shall have paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the Closing Date, including pursuant to any Commitment Letter and Fee Letter, shall have been paid.
(f) Unless waived by in the Administrative Agentcase of the costs and out-of-pocket expenses, 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 Xxxxxx Xxxxxxx 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 & Xxxxx 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
Samples: Term Loan Restatement Agreement (Constellation Brands, Inc.)
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 Xxxxxx Xxxxxxx 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 & Xxxxx 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 fund the Term Loans requested to be made by it on the Closing Date is subject to the prior or concurrent satisfaction of each of the following conditions precedentconditions:
(a) The Effective Date Existing 2018 Notes shall be concurrently validly “satisfied and discharged” in full pursuant to Section 8.02 of the Existing 2018 Notes Indenture and the Loan Parties shall have occurredconcurrently delivered to the Administrative Agent reasonably satisfactory written evidence thereof and all documents or instruments (including “pay-off” letters, notices of prepayment and any opinions, certificates or other requirements in connection therewith) necessary to terminate or unconditionally release all liens or security interests related to the Existing 2018 Notes in form and substance reasonably satisfactory to the Administrative Agent. Immediately after giving effect to the Transactions, none of the Borrower or its Restricted Subsidiaries shall have outstanding any Indebtedness for borrowed money or preferred stock other than (i) the Term Loans and Commitments hereunder, (ii) the Indebtedness permitted by Section 6.01 and (iii) Indebtedness owed to the Borrower or any Guarantor.
(b) The Buyer Lenders shall be satisfied that all requisite Governmental Authorities and third parties 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 approved or consented to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse Transactions to the interests of the Lenders extent necessary, and there shall be no governmental or the Arrangersjudicial action, 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; providedactual or threatened, 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 has 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 singly or in the aggregate, a Target Material Adverse Effectreasonable likelihood of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby. The Lenders shall be satisfied that the Borrower, its Subsidiaries and the Transactions shall be in compliance in all material respects with all Requirements of Law, including Regulations T, Regulation U and Regulation X of the Board, and shall have received satisfactory evidence of such compliance reasonably requested by them.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; provided that clause and (ii) a certificate of the definition President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, any Vice President or any other executive officer (including any officer acting in an interim capacity) of Target Material Adverse Effect shall be excluded from each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or equivalent governing document of such definition for Loan Party as in effect on the purposes Closing Date and at all times since a date prior to the date of determining the satisfaction resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, members or managers of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or equivalent organizational document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (with such certificate in this paragraph clause (cc)(ii) containing the certification of another officer of such Loan Party as to the incumbency and specimen signature of the officer executing such certificate).
(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 certificate, dated the Closing Date and unaudited financial statements signed by a Financial Officer of the Acquired Business for any quarterly interim period or periods Borrower, confirming compliance with the provisions of Sections 4.02(b), (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior yearc) 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 The Administrative Agent or the Lenders shall have received all Fees and other amounts due and payable 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 be reasonably satisfied that all Fees and other amounts due and payable will be paid on the Closing Date from the proceeds of the Term Loans), including to the extent invoiced, reimbursement or payment of all out-of-pocket expenses to the extent required to be reimbursed or paid by the BorrowerBorrower hereunder or under any other Loan Document.
(f) The Collateral Agent on behalf of the Secured Parties shall have a security interest on the Closing Date in the Collateral of the type and priority described in the Security Documents and Intercreditor Agreements (but subject to such Liens permitted under Section 6.02), plus and the Security Documents shall have been duly executed by each Loan Party that is to be a party thereto (and in the case of the Intercompany Notes, accompanied by instruments of transfer undated and endorsed in blank) and shall be in full force and effect on the Closing Date, and the Loan Parties shall deliver:
(i) except as provided in Section 5.15, to the extent required by the Guarantee and Collateral Agreement, all certificates, agreements or instruments representing or evidencing Collateral in the form of Equity Interests, accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(ii) except as provided in Section 5.15, all other certificates, agreements, including Control Agreements, or instruments necessary to perfect the Collateral Agent’s security interest in, among other things, all chattel paper, all Instruments, all Deposit Accounts, all Securities Accounts and all investment property of each Loan Party (as each such additional amounts term is defined in the Guarantee and Collateral Agreement and to the extent required by the Guarantee and Collateral Agreement);
(iii) the UCC financing statements in appropriate form for filing under the UCC, filings to be filed with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents;
(iv) certified copies of UCC searches, intellectual property searches, and such other searches that the Collateral Agent deems necessary or appropriate, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Liens permitted under Section 6.02 or any other Liens acceptable to the Collateral Agent); and
(v) evidence acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges charges, costs and disbursements as shall constitute its reasonable estimate expenses required for the recording 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)Security Documents.
(g) The Administrative Agent Lenders shall have received a Request for Credit Extension the financial statements and forecasts referred to in accordance with the requirements hereofSection 3.05.
(h) The Administrative Agent shall have received a solvency certificate from substantially in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of the Borrower in the form attached hereto as Exhibit B.Borrower.
(i) At least three Business Days except as provided in Section 5.15, (i) each of the Mortgages relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) title searches shall indicate that the Mortgaged Properties are not subject to any Lien other than those permitted under Section 6.02 hereto or the Collateral Agent has received evidence reasonably satisfactory to it that any such existing Lien will be released on the Closing Date, (iii) each of such Security Documents shall have been filed and recorded in the appropriate recording office in the jurisdiction in which the Mortgaged Property is located or shall have been delivered to the Administrative Agent or a nationally recognized title insurance company in a proper form for filing, recordation or registration in form and substance acceptable to the Collateral Agent as a first priority lien on such Mortgaged Property (subject only to any Lien permitted by Section 6.02) and, upon filing or recordation, as applicable, in connection therewith where filed or recorded, as applicable, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing or recordation, (iv) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company in amounts reasonably acceptable to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first priority liens on the Mortgaged Properties, free of Liens (other than those permitted under Section 6.02), together with such surveys, affidavits, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders and (v) with respect to each improved Mortgaged Property, a “Life-of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and, if the area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance satisfying the requirements of Section 5.02(c) hereof.
(j) On or prior to the Closing Date, the Borrower shall have provided delivered (by electronic transmission or otherwise) to the Administrative Agent fully executed copies of (i) this Agreement, (ii) an amendment to the ABL Facility (in form and substance reasonably satisfactory to the Administrative Agent) and (iii) the ABL Intercreditor Agreement, and each such document shall have become effective pursuant to its terms.
(k) The Borrower shall:
(i) deliver to the Administrative Agent a Perfection Certificate with respect to the Loan Parties duly executed by a Responsible Officer of the Borrower;
(ii) provide a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured;
(iii) provide to the Administrative Agent, on behalf of itself and the Lenders, a reasonably satisfactory written opinion of (i) Winston & Xxxxxx LLP, counsel for the Borrower (A) addressed to the Administrative Agent and the Lenders and (B) covering certain matters relating to the Loan Documents as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion and (ii) each local counsel listed on Schedule 4.01(k)(iii);
(iv) provide to the Administrative Agent each of the Loan Documents listed on Schedule 4.01(k)(iv), in each case executed by a duly authorized officer of each party thereto, in form and substance satisfactory to the Administrative Agent and in full force and effect on the Closing Date; and
(v) deliver a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Closing Date.
(l) The Lenders shall have received, to the extent requested, 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 USA PATRIOT Act, that has been requested in writing not less than ten Act at least five 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 Xxxxxx Xxxxxxx 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 & Xxxxx 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 9.03Article VIII, for purposes of determining compliance with the conditions specified in Sections 4.01 and 4.02this Section 4.01, by signing this Agreement, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied indicated its satisfaction with, each document or other matter required thereunder hereunder 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
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 Date shall have occurredAdministrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower.
(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 All fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or and the Lenders on or before the Closing Date, including pursuant Date shall have been paid and all fees required to any Fee Letter, be paid to the Lenders on or before the Closing Date shall have been paid.
(fc) Unless waived by the Administrative Agent, the The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative AgentAgent or the Lenders, as applicable) to the extent invoiced at least three Business Days prior to or on the Closing Date (or such later date as agreed by the Borrower)Date, 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 AgentAgent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct 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 as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(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 at least three 3 Business Days prior to the Closing Date, the Borrower shall have provided to the Administrative Agent and the Lenders Date 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 at least 10 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 Xxxxxx Xxxxxxx 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.
(lh) The Administrative Agent Agent’s receipt of the following, each of which shall have received a certificate dated the Closing Date from be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower confirming signing Loan Party, each dated the satisfaction Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.Lenders:
(mi) The executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent shall Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have received a Material Adverse Effect;
(v) a favorable opinion of Cravatheach of (i) Weil, Swaine Gotshal & Xxxxx Xxxxxx LLP, counsel to the BorrowerLoan Parties, (ii) Xxxxxxx Xxxxxxxx Xxxx & Xxxxxx, P.C., Colorado counsel to the Loan Parties, and (iii) Xxxxxx Xxxxxx LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the registration status matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower under certifying that the Investment Company Act conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of 1940the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) 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,
(B) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and Xxxxxx Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) 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; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative AgentAgent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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
Samples: Term Loan Credit Agreement (Basic Energy Services Inc)
Conditions to the Closing Date. The obligation of each Lender Lenders’ obligations to make a Loan on the Closing Date is Loans shall be subject only to all of the following conditions precedentprecedent having been satisfied (or waived in accordance with Section 10.01) on or prior to the Commitment Termination Date:
(a) The the Effective Date shall have occurred.;
(b) The Buyer the Pinnacle Acquisition shall have paid been (or, substantially contemporaneously with the initial Borrowing hereundermaking of the Loans, shall paybe) for all shares of the Target initially validly tendered in the Offer consummated pursuant to the Pinnacle Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case that, taken as a whole, are materially adverse to the interests of the Lenders or the ArrangersLenders, unless the Arrangers Syndication Agent shall have provided their its written consent thereto (it being understood that any reduction change in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) purchase consideration of less than 510.0% in respect of the Pinnacle Acquisition 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 TrancheLenders). 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 there shall not have occurred: (a) from December 31, 2017 through to the date of the Pinnacle Acquisition Agreement, there shall not have occurred any Effect that would have event, change, effect, development, state of facts, condition, circumstance or reasonably be expected to haveoccurrence, individually or in the aggregate with all other events, changes, effects, developments, states of facts, conditions, circumstances and occurrences in the business, results of operations, properties, assets, liabilities, operations or financial condition of Pinnacle that, individually or in the aggregate, a Target has had, or that would reasonably be expected to have an Acquired Business Material Adverse Effect; provided that clause , except as set forth in the (i) reports publicly filed with the SEC prior to the date of the Pinnacle Acquisition Agreement (excluding, in each case, any disclosures set forth in any risk factor section or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature) or (ii) corresponding sections or subsections of the definition Company Disclosure Letter (as defined in the Pinnacle Acquisition Agreement in effect as of Target June 26, 2018) (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of the Company Disclosure Letter to the extent that the relevance of such item to such section or subsection is reasonably apparent on its face), or (b) from the date of the Pinnacle Acquisition Agreement, any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had, or would reasonably be expected to have, an Acquired Business Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).Effect;
(d) The the Administrative Agent shall have received (except to the extent not required by the Administrative Agent) (i) audited financial statements of the Borrower Company 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 Company 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)Date; (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 Xxxxxx Xxxxxxx 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 & Xxxxx 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.and
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Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 of the following conditions precedent:
(a) The Effective Date shall have occurred.
(b) The Buyer Acquisition shall have paid been consummated (or, or shall be consummated substantially contemporaneously concurrently with the initial Borrowing closing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to accordance with the Acquisition Agreement without giving effect to any modificationsand the Acquisition Agreement shall not have been amended or modified, consentsand no condition shall have been waived or consent granted by the Company, amendments or waivers thereto or thereunder that in each case are case, in any respect that is materially adverse to the interests of the Lenders or the Arrangers without the Arrangers’ prior written consent, unless the Arrangers which consent shall have provided their written consent thereto not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any reduction decrease in the “Offer Consideration” (as defined aggregate cash and stock consideration set forth in the Acquisition Agreement as (such aggregate consideration, the “Acquisition Consideration”) in effect on October 27, 2016) excess of less than 510% will shall 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 any decrease in the Offer total Acquisition Consideration by more equal to or less than 10% or shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) makes any modification to Sections 2.04(a)(vincrease in Acquisition Consideration that is not funded with equity (or proceeds of equity) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation cash 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, hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) Since [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) 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 (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, 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 been an Acquired Business 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 or principal accounting officer of the Borrower Company in the form attached hereto as Exhibit B.E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) At The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent and the Lenders all documentation and other customary information required reasonably requested 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 Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date.
(j) At the time of and upon giving effect , shall have received a Beneficial Ownership Certification in relation 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 8.01Company.
(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 Xxxxxx Xxxxxxx 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 certificate, dated the Closing Date from and signed by the President or a Responsible Officer Vice President of the Borrower confirming Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent described in paragraphs (bSection 4.02(b), (c4.02(d), (j4.02(e) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & Xxxxx 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 Agent4.02(f). Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in Sections 4.01 and this Section 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 Closing Date or Closing Date, as applicable, specifying its objection thereto.
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Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans on the Closing Date is are subject to each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The the Effective Date shall have occurred.occurred or shall occur simultaneously with the Closing Date;
(b) The Buyer the Administrative Agent shall have paid received the executed legal opinion of Xxxxx Xxxxxxx LLP, U.S. counsel to the Borrower (or, substantially contemporaneously in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the initial Borrowing hereunder, shall pay) for all shares effectiveness of the Target initially validly tendered credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Offer pursuant to Investment Agreements, and the Acquisition Agreement without giving effect to Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any modifications, consents, amendments or waivers thereto or thereunder respect that in each case are is materially adverse to the interests of the Lenders or the Arrangers, unless Arranger without the Arrangers shall have provided their Arranger’s prior written consent thereto (it being understood and agreed that (i) any reduction amendment, modification, waiver or consent that results in a change to the definition of the term “Offer ConsiderationMaterial Adverse Effect” (as defined in the Acquisition Agreement as in effect on October 27, 2016Subscription Agreement) 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.
Arranger, and (cii) Since (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Investment Consideration, together with any other increases since the date of the Acquisition Agreement, there shall Commitment Letter which does 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) exceed 5% of the definition of Target Material Adverse Effect Investment Consideration, in each case shall be excluded from such definition for deemed not to be materially adverse to the purposes of determining the satisfaction of this paragraph (cLenders).;
(d) The since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of the Target set forth therein;
(f) the Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the Closing Date and executed by a Financial Officer of the Company;
(g) the Specified Representations and Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arranger shall have received:
(i) with respect to the Company and its Subsidiaries, (i) audited financial consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for 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 recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited financial consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent last audited financial statements (and corresponding periods of any prior year) and more than at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(ii) with respect to which independent auditors shall have performed a SAS 100 review); the Target and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions)its Subsidiaries, 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 audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) above, as applicable, regardless unaudited consolidated balance sheets and related unaudited statements of when comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the Borrower is required to file such last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the required financial statements on Form 40-F and Form 6-K by the Target will satisfy the foregoing requirements;
(h) the Administrative Agent shall have received a Borrowing Request in accordance with the Securities and Exchange Commission, and in each of clauses Section 2.03; and
(i) through (iv)the Company shall have paid, meeting by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent Commitment Letter 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 in the Administrative Agentcase of the costs and out-of-pocket expenses, 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 Xxxxxx Xxxxxxx 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 & Xxxxx 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
Samples: Bridge Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The obligation of each Lender (i) to make a Loan the Loans on the Closing Date is subject to the satisfaction (or waiver by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent, on the Closing Date, or (ii) to pre-fund the Loans on the Pre-Closing Funding Date pursuant to Section 2.2(c)(ii) is subject to the satisfaction (or waiver by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent (in each case in this clause (ii), other than the Black Knight Acquisition Related Conditions), on the Pre-Closing Funding Date:
(a) The Effective Date Borrowing of such Loans shall have occurred.
occur on the Black Knight 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 Black Knight 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 Black Knight Acquisition Agreement as in effect on October 27May 4, 20162022) 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 Black Knight Acquisition Agreement as in effect on October 27May 4, 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.2022;
(cb) Since the date of the Black Knight Acquisition Agreement, there shall not have occurred been any Effect event, circumstance, occurrence, effect, fact, development or change that has had, or would have or reasonably be expected to have, individually or in the aggregate, a Target “Material Adverse Effect; provided ” (as defined in the Black Knight Acquisition Agreement);
(c) The Initial Arrangers shall have received a certificate of the chief financial officer of the Borrower as to the solvency of the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Black Knight Transactions, in the form of Exhibit F;
(d) The Black Knight Acquisition shall have been consummated substantially concurrently with the Borrowing of such Loans, and substantially in accordance with the terms and conditions of the Black Knight Acquisition Agreement without giving effect to any waiver, modification or consent thereunder that clause is materially adverse to the Lenders or the Initial Arrangers (iias reasonably determined by the Initial Arrangers) unless approved by the Initial Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed), it being understood and agreed that, without limiting the generality of the foregoing, (1) any decrease in the Black Knight Acquisition consideration shall not be materially adverse to the Lenders or the Initial Arrangers so long as such decrease is allocated to reduce the Black Knight Borrower Stock Contribution and the Black Knight Bridge Facility on a pro rata, dollar-for-dollar basis, (2) any increase in the purchase price shall not be materially adverse to the Lenders or the Initial Arrangers so long as such increase is funded solely by an increase in the amount of the Black Knight Borrower Stock Contribution and (3) any change to the definition of Target “Material Adverse Effect” or the “Xerox” provisions shall be deemed to be a modification which is materially adverse to the Lenders and the Initial Arrangers;
(e) The representations and warranties made by or with respect to Black Knight and its Subsidiaries in the Black Knight Acquisition Agreement as are material to the interests of the Lenders (the “Black Knight Acquisition Agreement Representations”) shall be true and correct, but only to the extent that the Borrower or any of its Affiliates has the right to terminate its or its Subsidiaries’ obligations under the Black Knight Acquisition Agreement, or to decline to consummate the Black Knight Acquisition pursuant to the Black Knight Acquisition Agreement, as result of a breach of any such representations and warranties or any such representations and warranties not being accurate (in each case, determined without regard to any notice requirement). 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 to which it is a party), 4.2, 4.3 (but only with respect to clause (i) therein), 4.7, 4.11, 4.12 (but only with respect to the Borrower’s use of proceeds) and 4.13 shall be true and correct in all material respects (except that any representation and warranty qualified as to materiality or Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (ctrue and correct in all respects).;
(df) No Event of Default under Section 8.1(a), 8.1(f) or 8.1(g), nor any “event of default” or similar condition under the Black Knight 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, in each case, 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;
(g) The Administrative Agent Initial Arrangers shall have received (i) copies of audited financial consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Borrower and its subsidiaries for each of its the three most recent fiscal years most recently 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 90 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 or such lesser time applicable to the Closing Date and unaudited financial statements of Borrower as 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 annual report deadline under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) and interim unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for each subsequent quarterly period after the date of the last audited financial statements pursuant to this clause (i) (other than the fourth fiscal quarter of any required fiscal year) ended at least 45 days prior to the Closing Date (or such lesser time applicable to the Borrower as the quarterly report deadline under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) (it being understood and acknowledged by the Initial Arrangers that the audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Borrower and its subsidiaries filed with the SEC, as of the date hereof, for the three years ended December 31 2019, 2020 and 2021 and for the three months ended March 31, 2022 satisfy the obligation to provide such financial information for the periods covered by such filings), and (ii) copies of all financial statements will satisfy of Black Knight delivered to the requirements of this paragraph (d).Borrower pursuant to the Black Knight Acquisition Agreement;
(eh) Any fees required On the Black Knight Acquisition Date, after giving effect to the Black Knight Transactions, the obligations of Black Knight and its subsidiaries under that certain Second Amended and Restated Lien Credit and Guaranty Agreement, dated as of March 10, 2021 (as amended, restated, supplemented or otherwise modified from time to time), among Black Knight Infoserv, LLC, a Delaware limited liability company (the “Black Knight Borrower”), Black Knight Financial Services, LLC, a Delaware limited liability company, each subsidiary of the Black Knight Borrower from time to time party thereto as guarantors, the lenders from time party thereto, JPMorgan Chase Bank, N.A., as the administrative agent, a swing line lender and an L/C issuer, Bank of America, N.A., as a swing line lender and an L/C issuer, and U.S. Bank National Association, as a swing line lender an L/C issuer, shall have been repaid in full and all guarantees and security interests shall have been terminated and released;
(i) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.2(b) and, if any SOFR Loans are to be paid by borrowed on the Borrower Closing Date (or pre-funded on the Pre-Closing Funding Date) and such date is prior to the third Business Day after the Effective Date, the Administrative Agent shall have received, three Business Days prior to such date, a customary pre-funding SOFR indemnity letter from the Borrower;
(j) The aggregate principal of such Loans shall not exceed the aggregate Commitments at such time (determined without giving effect to such Loans);
(k) All fees and (to the extent invoiced at least two Business Days prior to the Closing Date) expenses due to the Initial Arrangers, the Administrative Agent or and the Lenders required to be paid on or before the Closing Date, 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 fees and disbursements expenses of counsel to for the Administrative Agent (directly to such counsel if requested by Initial Arrangers and the Administrative Agent) to the extent invoiced at will have been paid;
(l) At least three Business Days prior to the Closing Date (or such later date as agreed by or, if a Pre-Closing Funding Election has been made, the BorrowerPre-Closing Funding Date), 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 will have provided to the Administrative Agent and the Lenders all documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including, without limitation, the PATRIOT ActAct and the Beneficial Ownership Regulation, 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 Lenders shall have requested such documentation and other information at least 10 Business Days prior to 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 Closing Date (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 if a Pre-Closing Funding Election has 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 borrowersmade, the several lenders from time to time parties thereto, and Xxxxxx Xxxxxxx Senior Pre-Closing 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 (bDate), (c), (j) and (k) of this Section 4.02.; and
(m) The Administrative Agent Effective Date shall have received a favorable opinion of Cravath, Swaine & Xxxxx 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 theretooccurred.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
