Consent to Merger. (a) Borrowers hereby request the consent of the Lenders and Agent to a merger transaction in which MGAM Systems, Inc. will merge with and into Multimedia Games, Inc., with Multimedia Games, Inc. being the surviving corporation (“MGAM Merger”). Borrowers represent to the Lenders and Agent that as of the date of the MGAM Merger each of the following will be true and correct: (i) the MGAM Merger has been approved by all necessary action of the respective boards of directors of each Borrower and Parent as the sole shareholder of each Borrower; (ii) there are no prohibitions or restrictions to the MGAM Merger under any applicable Requirement of Law; (iii) Borrowers have given all notices and obtained all consents necessary or appropriate to ensure that consummation of the MGAM Merger will not violate any applicable Requirement of Law or any Material Contract; and (iv) upon consummation of the MGAM Merger: (1) Multimedia Games Inc. will continue to be wholly owned by Parent; (2) the security interests granted by MGAM Systems, Inc. on its assets and property to Agent on behalf of the Lenders will continue in full force and effect, and (3) provided that the Lenders grant their consent as requested herein, no Default or Event of Default will exist or occur under the Credit Agreement. (b) Agent and the Lenders hereby consent to the MGAM Merger, authorize the Agent to return the certificate(s) for the 1,000 shares of the common stock, $0.01 par value per share, of MGAM Systems, Inc. to Borrowers, and waive any Default or Event of Default arising under the Credit Agreement as a result of the MGAM Merger provided that: (i) The MGAM Merger shall be consummated on or before October 31, 2012; (ii) Within five (5) Business Days after consummation of the MGAM Merger Borrower shall provide Agent, for distribution to the Lenders, a certificate of Borrower in form substantially similar to attached Exhibit A, accompanied by true copies of the MGAM Merger Documents as defined therein; and (iii) Immediately prior to, upon and following consummation of the MGAM Merger, no Default or Event of Default shall have occurred and be continuing. This consent is not a waiver of or consent to any other event, condition, transaction, act or omission whether related or unrelated to the MGAM Merger, except as expressly stated herein. (c) Borrowers, the Lenders, and Agent further agree that, upon consummation of the MGAM Merger, wherever used in the Credit Agreement or any of the Loan Documents, the term “Borrowers” will be deemed to be amended to be the term “Borrower” and, to the extent applicable, will refer to Multimedia Games Inc. as successor by merger to MGAM Systems, Inc., and the form of the verbs used in connection with the plural “Borrowers” will be deemed changed to the singular form of such verbs for the singular “Borrower”, where applicable.
Appears in 1 contract
Samples: Credit Agreement (Multimedia Games Holding Company, Inc.)
Consent to Merger. (a) Borrowers hereby request the consent A. Borrower has informed Lender of the Lenders and Agent its intent to a merger transaction in which MGAM Systems, Inc. will merge with and into Multimedia GamesBaseball Acquisition Corp. II, Inc., with Multimedia Games, Inc. being the surviving a Delaware corporation (“MGAM Baseball II”), with Borrower as the surviving entity (the “Merger”). Borrowers represent ) pursuant to that certain Agreement and Plan of Merger dated as of March 14, 2005 in the Lenders and Agent that form delivered to Lender as of the date of this Amendment (the MGAM “Merger each Agreement”), by and among Borrower, Trikon Technologies, Inc., a Delaware corporation (“Trikon”), New Athletics, Inc. (the “Holding Company”), Baseball Acquisition Corp. I, a Delaware corporation and Baseball II. As set forth in the Merger Agreement, upon the consummation of the following will be true and correct:
Merger, (i) Borrower will change its name to Aviza, Inc. (the MGAM Merger has been approved by all necessary action of the respective boards of directors of each Borrower “Name Change”), and Parent as the sole shareholder of each Borrower;
(ii) there are no prohibitions or restrictions the holders of common stock of the Borrower and series A preferred stock of the Borrower immediately prior to the MGAM Merger under any applicable Requirement shall exchange their shares in the Borrower for shares of Lawcommon stock of the Holding Company with the Holding Company receiving such stockholders’ interests in the Borrower (the “Ownership Change”).
B. Borrower has requested, and Lender has agreed, to consent to the Merger, Name Change and the Ownership Change as set forth in the Merger Agreement, subject to the following terms and conditions:
1. Receipt by Lender of a fully executed copy of the Merger Agreement;
2. As soon as possible but in no event later than ten (iii10) Borrowers have given all notices and obtained all consents necessary or appropriate to ensure that business days after the consummation of the MGAM Merger will not violate any applicable Requirement of Law or any Material Contract; and
(iv) upon consummation of the MGAM Merger:
(1) Multimedia Games Inc. will continue to be wholly owned by Parent;
(2) the security interests granted by MGAM Systems, Inc. on its assets and property to Agent on behalf of the Lenders will continue in full force and effect, and
(3) provided that the Lenders grant their consent as requested herein, no Default or Event of Default will exist or occur under the Credit Agreement.
(b) Agent and the Lenders hereby consent to the MGAM Merger, authorize the Agent to return the certificate(s) for the 1,000 shares of the common stock, $0.01 par value per share, of MGAM Systems, Inc. to Borrowers, and waive any Default or Event of Default arising under the Credit Agreement as a result of the MGAM Merger provided that:
Lender shall have received (i) The MGAM Merger shall be consummated on or before October 31a guaranty executed by Trikon in Favor of Lender (“Trikon Guaranty”), 2012;
(ii) Within five (5) Business Days after consummation of guaranteeing the MGAM Merger Borrower shall provide Agent, for distribution to the Lenders, a certificate obligations of Borrower in form substantially similar to attached Exhibit A, accompanied by true copies of the MGAM Merger Documents as defined therein; and
(iii) Immediately prior to, upon and following consummation of the MGAM Merger, no Default or Event of Default shall have occurred and be continuing. This consent is not a waiver of or consent to any other event, condition, transaction, act or omission whether related or unrelated to the MGAM Merger, except as expressly stated herein.
(c) Borrowers, the Lenders, and Agent further agree that, upon consummation of the MGAM Merger, wherever used in the Credit Agreement or any of under the Loan Documents, (ii) a debenture, charge or similar security document (“Trikon Security Agreement”) executed by Trikon in favor of Lender granting to Lender a perfected first priority security interest in all of Trikon’s assets as security for Trikon’s obligations under the term “Borrowers” will be deemed to be amended to be the term “Borrower” andTrikon Guaranty, (iii) all other documentation, including one or more opinions of counsel, which in Lender’s opinion is appropriate with respect to the extent applicableexecution and delivery of the Trikon Guaranty or Trikon Security Agreement, will refer all in form and substance satisfactory to Multimedia Games Inc. as successor Lender.
3. Receipt by Lender of evidence that all conditions to the consummation of the Merger have been met and the certificate of merger to MGAM Systemshas been filed with the Secretary of State of Delaware;
4. Receipt by Lender of a fully executed copy of the Stockholder Agreement (“Stockholder Agreement”) entered into by and among Holding Company, Trikon Technologies, Inc., VantagePoint Venture Partners IV (Q), L.P., VantagePoint Venture Partners IV, L.P. and VantagePoint Venture Partners IV Principals Fund, L.P., in the form of the verbs used in connection with the plural “Borrowers” will be deemed changed delivered to the singular form of such verbs for the singular “Borrower”, where applicable.Lender and approved by Lender;
Appears in 1 contract
Consent to Merger. (a) Borrowers hereby request Parent has informed Agent that Parent has previously formed Ultraviolet Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”) and, together with Merger Sub, has entered into that certain Agreement and Plan of Merger, dated as of January 29, 2009 and filed with the consent of the Lenders and Agent SEC on January 29, 2009 as an Exhibit to a merger transaction in Form 8-K Current Report (the “Avanex Merger Agreement”) with Avanex Corporation, a Delaware corporation (“Avanex”), pursuant to which MGAM Systems, Inc. Merger Sub will merge be merged with and into Multimedia Games, Inc., Avanex with Multimedia Games, Inc. being Avanex as the surviving corporation entity and a wholly owned subsidiary of Parent (the “MGAM Avanex Merger”). Borrowers represent to the Lenders and Agent that as of the date of the MGAM Merger each of the following will be true and correct:
(i) the MGAM Merger has been approved by all necessary action of the respective boards of directors of each Borrower and Parent as the sole shareholder of each Borrower;
(ii) there are no prohibitions or restrictions to the MGAM Merger under any applicable Requirement of Law;
(iii) Borrowers have given all notices and obtained all consents necessary or appropriate to ensure that consummation of the MGAM Merger will not violate any applicable Requirement of Law or any Material Contract; and
(iv) upon consummation of the MGAM Merger:
(1) Multimedia Games Inc. will continue to be wholly owned by Parent;
(2) the security interests granted by MGAM Systems, Inc. on its assets and property to Agent on behalf of the Lenders will continue in full force and effect, and
(3) provided that the Lenders grant their consent as requested herein, no Default or Event of Default will exist or occur under the Credit Agreement.
(b) Pursuant to the terms of the Credit Agreement, at the time any Obligor forms any direct or indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such Obligor shall (i) cause such new Subsidiary to provide to Agent a joinder to the Guaranty and the Lenders hereby Security Agreement, together with such other security documents (including Mortgages with respect to any Real Property of such new Subsidiary), as well as appropriate financing statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (ii) provide to Agent a pledge agreement and appropriate certificates and powers or financing statements, hypothecating all of the direct or beneficial ownership interest in such new Subsidiary, in form and substance satisfactory to Agent, and (iii) provide to Agent all other documentation, including one or more opinions of counsel satisfactory to Agent, which in Agent’s opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance or other documentation with respect to all property subject to a Mortgage) (such covenants, collectively, the “New Subsidiary Covenants”). Therefore, Parent should have complied with the New Subsidiary Covenants with respect to Merger Sub.
(c) Pending the consummation of the Avanex Merger, Parent has requested that the Lender Group consent to the MGAM Merger, authorize the Agent to return the certificate(s) Avanex Merger and provide a limited extension for the 1,000 shares compliance period with respect to the New Subsidiary Covenants for Merger Sub.
(d) Notwithstanding any term or provision of the common stock, $0.01 par value per share, of MGAM Systems, Inc. to Borrowers, and waive any Default or Event of Default arising under the Credit Agreement to the contrary, including, without limitation, Section 5.16, the Lender Group hereby waives Parent’s compliance with the New Subsidiary Covenants (except as a result provided in clause (f) below), so long as the Avanex Merger is consummated on or before April 30, 2009 (the “Consummation Deadline”); provided that, in the event the Avanex Merger is not consummated by the Consummation Deadline, such waiver shall continue to be effective so long as Parent and Borrowers perform and cause Merger Sub to perform each of the MGAM New Subsidiary Covenants within 15 days of the Consummation Deadline.
(e) In addition to the foregoing, notwithstanding any term or provision of the Credit Agreement to the contrary, including, without limitation, Sections 6.3, 6.8 and 6.12, the Lender Group hereby consents to the Avanex Merger provided thatand agrees that the Avanex Merger shall not cause an Event of Default, subject to the satisfaction (or waiver) of each of the following conditions precedent and affirmative and negative covenants:
(i) The MGAM Avanex Merger shall be consummated on or before October 31subject to terms and conditions materially consistent (as determined by Agent, 2012in its reasonable discretion) with the Avanex Merger Agreement;
(ii) Within five (5) Business Days after The date of consummation of the MGAM Avanex Merger Borrower shall provide Agent, for distribution to (hereafter defined as the Lenders, a certificate of Borrower in form substantially similar to attached Exhibit A, accompanied by true copies of “Avanex Merger Date”) must occur on or before the MGAM Merger Documents as defined therein; andConsummation Deadline;
(iii) Immediately prior to, upon After giving effect to the waivers in clause 3(d) above and following consummation of the MGAM Merger5 below, no Default or Event of Default shall have occurred and be continuing. This consent continuing or would result immediately after giving effect to the Avanex Merger;
(iv) On or before the Avanex Merger Date, Agent shall have completed its legal due diligence with respect to the Avanex Entities and the Avanex Merger, including (1) receipt and review of consolidated and consolidating quarterly projections for Parent and its Subsidiaries for the 12 month period following the Avanex Merger Date which projections shall take into consideration the effects of the Avanex Merger, with the results of such review to be satisfactory to Agent, (2) review of Parent’s and its Subsidiaries’ corporate structure (taking into consideration the effects of the Avanex Merger) and capital structure (taking into consideration the effects of the Avanex Merger), with the results of such review to be satisfactory to Agent, (3) receipt and review of the final executed version of the Avanex Merger Agreement (and related documents) and the pro forma consolidated and consolidating financial statements of Parent’s and its Subsidiaries’ business (taking into consideration the effects of the Avanex Merger), in form and substance satisfactory to Agent with the results of such review to be satisfactory to Agent, and (4) receipt of UCC, tax lien, litigation and intellectual property searches (including foreign searches, as applicable) with respect to the Avanex Entities and Merger Sub the results of which shall be satisfactory to Agent;
(v) On the Avanex Merger Date, Agent shall have received a certificate (dated as of the Avanex Merger Date) on behalf of Parent of an Authorized Person of Parent attaching true and correct copies of the Avanex Merger Agreement, with such certificate to certify on behalf of Parent that the attached document is a true and correct copy of such document and that such document remains in full force and effect and no Obligor that is a party thereto is in default in the performance of, or compliance with, any provisions thereof;
(vi) No Indebtedness (other than Indebtedness permitted under Section 6.1 of the Agreement) will exist or be incurred as a result of the Avanex Merger, and no Liens that are not permitted under Section 6.2 of the Agreement will exist or be incurred as a waiver result of or the Avanex Merger;
(vii) The consideration for the Avanex Merger shall consist solely of Parent Stock, except for cash payments in connection with fractional shares in accordance with the Avanex Merger Agreement;
(viii) The failure to satisfy any of the conditions in clause (i) through (vii) above shall render the foregoing consent to any other event, condition, transaction, act or omission whether related or unrelated to the MGAM Merger, except as expressly stated hereinAvanex Merger ineffective and therefore the consummation of such Avanex Merger an Event of Default.
(cf) BorrowersThe failure by Obligors to satisfy any of the following conditions or covenants or, if applicable, the last sentence of clause (d) above within the prescribed time periods shall constitute an Event of Default:
(i) On or before the date that is 15 days after the Avanex Merger Date (the “Avanex Delivery Deadline”), Agent shall have received copies of the Governing Documents of Avanex, as amended, modified, or supplemented as of the date of delivery;
(ii) On or before the Avanex Delivery Deadline, Agent shall have received a certificate of status with respect to Avanex, dated within 10 days of the date of delivery, such certificate to be issued by the appropriate officer of Avanex’s jurisdiction of organization, which certificate shall indicate that Avanex is in good standing in such jurisdiction;
(iii) On or before the Avanex Delivery Deadline, Agent shall have received a certificate of status with respect to Avanex, dated within 30 days of the date of delivery, such certificates to be issued by the appropriate officer of the jurisdictions (other than Avanex’s jurisdiction of organization) in which the failure of Avanex to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Avanex is in good standing in such jurisdictions;
(iv) Within 2 Business Days of the Avanex Merger Date, Borrowers shall deliver to Agent a certificate of an Authorized Person of Parent attaching the Certificate of Merger issued by the Secretary of State of Delaware evidencing the consummation of the Avanex Merger;
(v) On or before the Avanex Delivery Deadline, Agent, for the ratable benefit of the Lenders, shall have a perfected first priority Lien over all the assets of Avanex, subject only to Permitted Liens;
(vi) On or before the Avanex Delivery Deadline, Parent and Borrowers shall cause Avanex to deliver to Agent’s counsel all documents that would be required following the Avanex Merger pursuant to the New Subsidiary Covenants, fully executed and in final form and Parent and Obligors shall enter into any amendments to the Loan Documents deemed necessary by Agent further agree that, upon consummation to take into account the effects of the MGAM Avanex Merger;
(vii) On or before the Avanex Delivery Deadline, wherever used in the Credit Agreement or any of Borrowers shall deliver to Agent’s counsel updated schedules to the Loan Documents, as applicable; provided, that in no event may any schedule be updated in a manner that would reflect or evidence a Default or an Event of Default;
(viii) Within 60 days of the term “Borrowers” will Avanex Merger Date, Borrowers shall use their commercially reasonable best efforts to deliver to Agent a Collateral Access Agreement with respect to (1) Building A and Building E of 39611 and 00000 Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, (2) Building C of 00000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, (3) Building B of 00000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, (4) 00000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, and (5) any other facilities located within the United States where Avanex’s assets therein are valued at more than: (y) $250,000 in the aggregate for all such facilities or (z) $100,000 with respect to any individual facility;
(ix) Within 60 days of the Avanex Merger Date, with respect to each Deposit Account and Securities Account maintained in the United States and owned by Avanex, Borrowers shall either (i) deliver to Agent the Cash Management Agreements and Control Agreements with respect to the relevant Deposit Account or Securities Account, each in form and substance satisfactory to Agent or (ii) cause the relevant Deposit Account and Securities Account to be closed and provide Agent satisfactory written evidence of such closure, it being understood that during the period commencing on the Avanex Merger Date and ending on the Avanex Delivery Deadline and notwithstanding Section 6.12, Avanex and its Subsidiaries may maintain balances in such Deposit Accounts and Securities Accounts; and
(x) Within 15 days of the Avanex Merger Date, Borrowers shall deliver to Agent a fully executed copy of the deed of confirmation entered into by Bookham Technology PLC, Bookham Nominees Limited and Bookham, Inc., in favor of the Agent in relation to the English security granted pursuant to the Agreement together with board minutes and authorization certificates from each such company in form and substance satisfactory to the Agent.
(g) The consent set forth herein shall be limited precisely as written and shall not be deemed to be amended to be the (1) an amendment, waiver or modification of any other term “Borrower” and, to the extent applicable, will refer to Multimedia Games Inc. as successor by merger to MGAM Systems, Inc., and the form or condition of the verbs used Agreement or (2) prejudice any right or remedy which the Lender Group may now or in the future have under or in connection with the plural “Borrowers” will be deemed changed to the singular form of such verbs for the singular “Borrower”, where applicableAgreement.
Appears in 1 contract
Samples: Credit Agreement (Oclaro, Inc.)
Consent to Merger. (a) Borrowers hereby request Parent has informed Agent that: (i) Parent has previously formed Rio Sub 1, a Delaware corporation (“Rio 1”), Rio Sub 2, a Delaware corporation (“Rio 2”), and Rio Acquisition Corp., a Delaware corporation (“Merger Sub”); (ii) Parent, together with Merger Sub, has entered into the consent of the Lenders and Agent Xtellus Merger Agreement with Xtellus Parent, pursuant to a merger transaction in which MGAM Systems, Inc. Merger Sub will merge be merged with and into Multimedia Games, Inc., Xtellus Parent with Multimedia Games, Inc. being Xtellus Parent as the surviving corporation entity and a wholly owned subsidiary of Parent (the “MGAM Xtellus Merger”). Borrowers represent to the Lenders ; and Agent that as of the date of the MGAM Merger each of the following will be true and correct:
(i) the MGAM Merger has been approved by all necessary action of the respective boards of directors of each Borrower and Parent as the sole shareholder of each Borrower;
(ii) there are no prohibitions or restrictions to the MGAM Merger under any applicable Requirement of Law;
(iii) Borrowers have given all notices and obtained all consents necessary or appropriate to ensure that consummation of the MGAM Merger Xtellus Parent will not violate any applicable Requirement of Law or any Material Contract; and
(iv) upon consummation of the MGAM Merger:
(1) Multimedia Games Inc. will continue to be a wholly owned by Subsidiary of Rio 2, Rio 2 will be a wholly owned Subsidiary of Rio 1, and Rio 1 will be a wholly owned Subsidiary of Parent (Xtellus Parent;
(2) the security interests granted by MGAM Systems, Inc. on its assets Rio 1 and property Rio 2 are collectively referred to Agent on behalf of the Lenders will continue in full force as “New Subs” and effect, and
(3) provided that the Lenders grant their consent each individually as requested herein, no Default or Event of Default will exist or occur under the Credit Agreementa “New Sub”).
(b) Pursuant to the terms of the Credit Agreement, at the time any Obligor forms any direct or indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such Obligor shall (i) cause such new Subsidiary to provide to Agent a joinder to the Guaranty and the Lenders hereby Security Agreement, together with such other security documents (including Mortgages with respect to any Real Property of such new Subsidiary), as well as appropriate financing statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (ii) provide to Agent a pledge agreement and appropriate certificates and powers or financing statements, hypothecating all of the direct or beneficial ownership interest in such new Subsidiary, in form and substance satisfactory to Agent, and (iii) provide to Agent all other documentation, including one or more opinions of counsel satisfactory to Agent, which in Agent’s opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance or other documentation with respect to all property subject to a Mortgage) (such covenants, collectively, the “New Subsidiary Covenants”). Therefore, Parent should comply with the New Subsidiary Covenants with respect to New Subs.
(c) Pending the consummation of the Xtellus Merger, Parent has requested that the Lender Group consent to the MGAM Merger, authorize the Agent to return the certificate(s) Xtellus Merger and provide a limited extension for the 1,000 shares compliance period with respect to the New Subsidiary Covenants for New Subs.
(d) Notwithstanding any term or provision of the common stock, $0.01 par value per share, of MGAM Systems, Inc. to Borrowers, and waive any Default or Event of Default arising under the Credit Agreement to the contrary, including, without limitation, Section 5.16, the Lender Group hereby waives Parent’s compliance with the New Subsidiary Covenants (except as a result provided in clause (f) below), so long as the Xtellus Merger is consummated on or before December 31, 2009 (the “Consummation Deadline”); provided, that in the event the Xtellus Merger is not consummated by the Consummation Deadline, such waiver shall continue to be effective so long as Parent and Borrowers perform and cause New Subs to perform each of the MGAM New Subsidiary Covenants within 15 days of the Consummation Deadline.
(e) In addition to the foregoing, notwithstanding any term or provision of the Credit Agreement to the contrary, including, without limitation, Sections 6.3, 6.8 and 6.12, the Lender Group hereby consents to the Xtellus Merger provided thatand agrees that the Xtellus Merger shall not cause an Event of Default, subject to the satisfaction (or waiver) of each of the following conditions precedent and affirmative and negative covenants:
(i) The MGAM Xtellus Merger shall be consummated on or before October 31subject to terms and conditions materially consistent (as determined by Agent, 2012in its reasonable discretion) with the Xtellus Merger Agreement;
(ii) Within five (5) Business Days after The date of consummation of the MGAM Xtellus Merger Borrower shall provide Agent, for distribution to (hereafter defined as the Lenders, a certificate of Borrower in form substantially similar to attached Exhibit A, accompanied by true copies of “Xtellus Merger Date”) must occur on or before the MGAM Merger Documents as defined therein; andConsummation Deadline;
(iii) Immediately prior to, upon and following consummation of the MGAM Merger, no No Default or Event of Default shall have occurred and be continuing. This consent continuing or would result immediately after giving effect to the Xtellus Merger;
(iv) On or before the Xtellus Merger Date, Agent shall have completed its legal due diligence with respect to the Xtellus Entities, the Xtellus Merger and the New Subs, including (1) receipt and review of consolidated and consolidating quarterly projections for Parent and its Subsidiaries for the 12-month period following the Xtellus Merger Date which projections shall take into consideration the effects of the Xtellus Merger and creation of the New Subs, with the results of such review to be satisfactory to Agent, (2) review of Parent’s and its Subsidiaries’ corporate structure (taking into consideration the effects of the Xtellus Merger and creation of the New Subs) and capital structure (taking into consideration the effects of the Xtellus Merger and creation of the New Subs), with the results of such review to be satisfactory to Agent, (3) receipt and review of the final executed version of the Xtellus Merger Agreement (and related documents) and the pro forma consolidated and consolidating financial statements of Parent’s and its Subsidiaries’ business (taking into consideration the effects of the Xtellus Merger and creation of the New Subs), in form and substance satisfactory to Agent with the results of such review to be satisfactory to Agent, and (4) receipt of UCC, tax lien, litigation and intellectual property searches (including foreign searches, as applicable) with respect to Xtellus Parent and New Subs, the results of which shall be satisfactory to Agent;
(v) On the Xtellus Merger Date, Agent shall have received a certificate (dated as of the Xtellus Merger Date) on behalf of Parent of an Authorized Person of Parent attaching true and correct copies of the Xtellus Merger Agreement, with such certificate to certify on behalf of Parent that the attached document is a true and correct copy of such document and that such document remains in full force and effect and no Obligor that is a party thereto is in default in the performance of, or compliance with, any provisions thereof;
(vi) No Indebtedness (other than Indebtedness permitted under Section 6.1 of the Agreement and obligations, to the extent constituting Indebtedness, described below in clause (e)(vii)) will exist or be incurred as a result of the Xtellus Merger other than the Indebtedness relating to the Xtellus Korea Mortgage and no Liens that are not permitted under Section 6.2 of the Agreement (after giving effect to the amendments set forth in this Amendment) will exist or be incurred as a waiver result of or the Xtellus Merger;
(vii) The consideration for the Xtellus Merger shall consist primarily of Parent Stock; provided, that under the Merger Agreement: (a) cash payments will be made: (i) to any holder of common stock of Xtellus Parent that does not deliver a Stockholder Representation Letter (as defined in the Merger Agreement) in the form provided for in the Merger Agreement, (ii) on account of consideration, if any, to be paid to holders of Company Options (as defined in the Merger Agreement), and (iii) in respect of miscellaneous fees, expenses and fractional shares, all as more fully set forth in the Merger Agreement, and (b) in Parent’s sole discretion, cash payments may be made (i) on account of any Value Protection Consideration Amount (as defined in the Merger Agreement) that may be due an payable, and (ii) on account of payments to security holders of Xtellus Parent out of the Escrow Fund (as defined in the Merger Agreement);
(viii) The failure to satisfy any of the conditions in clause (i) through (vii) above shall render the foregoing consent to any other event, condition, transaction, act or omission whether related or unrelated to the MGAM Merger, except as expressly stated hereinXtellus Merger ineffective and therefore the consummation of such Xtellus Merger an Event of Default.
(cf) BorrowersThe failure by Obligors to satisfy any of the following conditions or covenants or, if applicable, the last sentence of clause (d) above within the prescribed time periods shall constitute an Event of Default:
(i) On or before the date that is 15 days after the Xtellus Merger Date (the “Xtellus Delivery Deadline”), Agent shall have received copies of the Governing Documents of each of the New Subs, as amended, modified, or supplemented as of the date of delivery;
(ii) On or before the Xtellus Delivery Deadline, Agent shall have received a certificate of status with respect to each of the New Subs, dated within 15 days of the date of delivery, such certificate to be issued by the appropriate officer of such New Sub’s jurisdiction of organization, which certificate shall indicate that such New Sub is in good standing in such jurisdiction;
(iii) On or before the Xtellus Delivery Deadline, Agent shall have received a certificate of status with respect to each of the New Subs, dated within 30 days of the date of delivery, such certificates to be issued by the appropriate officer of the jurisdictions (other than such New Sub’s jurisdiction of organization) in which the failure of such New Sub to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such New Sub is in good standing in such jurisdictions;
(iv) Within 2 Business Days of the Xtellus Merger Date, Borrowers shall deliver to Agent a certificate of an Authorized Person of Parent attaching the Certificate of Merger issued by the Secretary of State of Delaware evidencing the consummation of the Xtellus Merger;
(v) On or before the Xtellus Delivery Deadline, Agent, for the ratable benefit of the Lenders, and Agent further agree that, upon consummation shall have a perfected (other than as contemplated by clause (ix) below) first priority Lien over all the Collateral of each of the MGAM MergerNew Subs, wherever used subject only to Permitted Liens;
(vi) On or before the Xtellus Delivery Deadline, Parent and Borrowers shall cause each of the New Subs to deliver to Agent’s counsel all documents that would be required following the Xtellus Merger pursuant to the New Subsidiary Covenants, fully executed and in final form and Parent and Obligors shall enter into any amendments to the Credit Agreement Loan Documents deemed necessary by Agent to take into account the effects of the Xtellus Merger and creation of the New Subs;
(vii) On or before the Xtellus Delivery Deadline, Parent and Borrowers shall cause the termination of the Xtellus Bridge Bank Facility and the termination of any security interest relating thereto and shall deliver to Agent’s counsel evidence, satisfactory to Agent, of such terminations;
(viii) On or before the date that is 60 days after the Xtellus Merger Date, Borrowers shall deliver to Agent’s counsel updated schedules to the Loan Documents, as applicable; provided, that in no event may any schedule be updated in a manner that would reflect or evidence a Default or an Event of Default; provided further, that pending such direct update of the term “Borrowers” will schedules to the Loan Documents, such schedules shall be deemed to be amended to be include and reflect (i) the term “Borrower” and, information about the Xtellus Entities as reflected in the disclosures attached to the extent applicableXtellus Merger Agreement, will refer so long as none of the information reflected in such disclosures is determined by Agent to Multimedia Games Inc. as successor by merger be adverse to MGAM Systemsthe interests of the Lenders and (ii) the basic corporate information regarding the New Subs;
(ix) Within 60 days of the Xtellus Merger Date, Inc.at Agent’s request, Borrowers shall use their commercially reasonable best efforts to deliver to Agent a Collateral Access Agreement with respect to (1) 00 Xxxx Xxxx, Xxxxxxxx Technical Park, Suite 121, Denville, New Jersey, and (2) any other facilities located within the form United States where each of the verbs used New Subs’s assets therein are valued at more than: (y) $250,000 in the aggregate for all such facilities or (z) $100,000 with respect to any individual facility; and
(x) Within 60 days of the Xtellus Merger Date, with respect to each Deposit Account and Securities Account maintained in the United States and owned by each of the New Subs, Borrowers shall either (i) deliver to Agent the Cash Management Agreements and Control Agreements with respect to the relevant Deposit Account or Securities Account, each in form and substance satisfactory to Agent or (ii) cause the relevant Deposit Account and Securities Account to be closed and provide Agent satisfactory written evidence of such closure, it being understood that during the period commencing on the Xtellus Merger Date and ending on the Xtellus Delivery Deadline and notwithstanding Section 6.12, each of the New Subs may maintain balances in such Deposit Accounts and Securities Accounts.
(g) The consent set forth herein shall be limited precisely as written and shall not be deemed to be (1) an amendment, waiver or modification of any other term or condition of the Agreement or (2) prejudice any right or remedy which the Lender Group may now or in the future have under or in connection with the plural “Borrowers” will be deemed changed to the singular form of such verbs for the singular “Borrower”, where applicableAgreement.
Appears in 1 contract
Samples: Credit Agreement (Oclaro, Inc.)
Consent to Merger. (a) Borrowers hereby request Parent has informed Agent that: (i) Parent has previously formed Nikko Acquisition Corp., a Delaware corporation (“Merger Sub”); and (ii) Parent, Merger Sub, and Mintera, Inc., a Delaware corporation (“Mintera”), have entered into that certain Agreement of Merger dated as of July 20, 2010 (the consent of the Lenders and Agent “Mintera Merger Agreement”), pursuant to a merger transaction in which MGAM Systems, Inc. Merger Sub will merge be merged with and into Multimedia Games, Inc., Mintera with Multimedia Games, Inc. being Mintera as the surviving corporation entity and a wholly owned subsidiary of Parent (the “MGAM Mintera Merger”). Borrowers represent to the Lenders and Agent that as of the date of the MGAM Merger each of the following will be true and correct:
(i) the MGAM Merger has been approved by all necessary action of the respective boards of directors of each Borrower and Parent as the sole shareholder of each Borrower;
(ii) there are no prohibitions or restrictions to the MGAM Merger under any applicable Requirement of Law;
(iii) Borrowers have given all notices and obtained all consents necessary or appropriate to ensure that consummation of the MGAM Merger will not violate any applicable Requirement of Law or any Material Contract; and
(iv) upon consummation of the MGAM Merger:
(1) Multimedia Games Inc. will continue to be wholly owned by Parent;
(2) the security interests granted by MGAM Systems, Inc. on its assets and property to Agent on behalf of the Lenders will continue in full force and effect, and
(3) provided that the Lenders grant their consent as requested herein, no Default or Event of Default will exist or occur under the Credit Agreement.
(b) Pursuant to the terms of the Credit Agreement, at the time any Obligor forms any direct or indirect Subsidiary or acquires any direct or indirect Subsidiary after the Closing Date, such Obligor shall (i) cause such new Subsidiary to provide to Agent a joinder to the Guaranty and the Lenders hereby Security Agreement, together with such other security documents (including Mortgages with respect to any Real Property of such new Subsidiary), as well as appropriate financing statements (and with respect to all property subject to a Mortgage, fixture filings), all in form and substance satisfactory to Agent (including being sufficient to grant Agent a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary), (ii) provide to Agent a pledge agreement and appropriate certificates and powers or financing statements, hypothecating all of the direct or beneficial ownership interest in such new Subsidiary, in form and substance satisfactory to Agent, and (iii) provide to Agent all other documentation, including one or more opinions of counsel satisfactory to Agent, which in Agent’s opinion is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including policies of title insurance or other documentation with respect to all property subject to a Mortgage) (such covenants, collectively, the “New Subsidiary Covenants”). Therefore, Parent should comply with New Subsidiary Covenants with respect to Mintera.
(c) Pending the consummation of the Mintera Merger, Parent has requested that the Lender Group consent to the MGAM Merger, authorize the Agent to return the certificate(s) Mintera Merger and provide a limited extension for the 1,000 shares compliance period with respect to the New Subsidiary Covenants for Mintera.
(d) Notwithstanding any term or provision of the common stock, $0.01 par value per share, of MGAM Systems, Inc. to Borrowers, and waive any Default or Event of Default arising under the Credit Agreement to the contrary, including, without limitation, Section 5.16, the Lender Group hereby waives Parent’s compliance with the New Subsidiary Covenants (except as a result provided in clause (f) below), so long as the Mintera Merger is consummated on or before July 20, 2010 (the “Consummation Deadline”); provided, that in the event the Mintera Merger is not consummated by the Consummation Deadline, such waiver shall continue to be effective so long as Parent and Borrowers perform and cause Mintera to perform each of the MGAM New Subsidiary Covenants within 15 days of the Consummation Deadline.
(e) In addition to the foregoing, notwithstanding any term or provision of the Credit Agreement to the contrary, including, without limitation, Section 6.1, the Lender Group hereby consents to the Mintera Merger provided thatand agrees that the Mintera Merger shall not cause an Event of Default, subject to the satisfaction (or waiver) of each of the following conditions precedent and affirmative and negative covenants:
(i) The MGAM Mintera Merger shall be consummated on or before October 31subject to terms and conditions materially consistent (as determined by Agent, 2012in its reasonable discretion) with the Mintera Merger Agreement;
(ii) Within five (5) Business Days after The date of consummation of the MGAM Mintera Merger Borrower shall provide Agent, for distribution to (hereafter defined as the Lenders, a certificate of Borrower in form substantially similar to attached Exhibit A, accompanied by true copies of “Mintera Merger Date”) must occur on or before the MGAM Merger Documents as defined therein; andConsummation Deadline;
(iii) Immediately prior to, upon and following consummation of the MGAM Merger, no No Default or Event of Default shall have occurred and be continuingcontinuing or would result immediately after giving effect to the Mintera Merger;
(iv) On or before the Mintera Merger Date, Agent shall have completed its legal due diligence with respect to the Mintera Merger and Mintera, including (1) receipt and review of consolidated and consolidating quarterly projections for Parent and its Subsidiaries for the 12-month period following the Mintera Merger Date which projections shall take into consideration the effects of the Mintera Merger and addition of Mintera as a Subsidiary, with the results of such review to be satisfactory to Agent, (2) review of Parent’s and its Subsidiaries’ corporate structure (taking into consideration the effects of the Mintera Merger and creation of Mintera) and capital structure (taking into consideration the effects of the Mintera Merger and creation of Mintera), with the results of such review to be satisfactory to Agent, (3) receipt and review of the final executed version of the Mintera Merger Agreement (and related documents) and the pro forma consolidated and consolidating financial statements of Parent’s and its Subsidiaries’ business (taking into consideration the effects of the Mintera Merger and addition of Mintera as a Subsidiary), in form and substance satisfactory to Agent with the results of such review to be satisfactory to Agent, and (4) receipt of UCC, tax lien, litigation and intellectual property searches (including foreign searches, as applicable) with respect to Mintera, the results of which shall be satisfactory to Agent;
(v) On the Mintera Merger Date, Agent shall have received a certificate (dated as of the Mintera Merger Date) on behalf of Parent of an Authorized Person of Parent attaching true and correct copies of the Mintera Merger Agreement, with such certificate to certify on behalf of Parent that the attached document is a true and correct copy of such document and that such document remains in full force and effect and no Obligor that is a party thereto is in default in the performance of, or compliance with, any provisions thereof;
(vi) No Indebtedness (other than Indebtedness permitted under Section 6.1 of the Credit Agreement (after giving effect to the amendments set forth in this Amendment) and obligations, to the extent constituting Indebtedness, described below in clause (e)(vii)) will exist or be incurred as a result of the Mintera Merger, and no Liens that are not permitted under Section 6.2 of the Credit Agreement will exist or be incurred as a result of the Mintera Merger;
(vii) The aggregate cash consideration paid in connection with the Mintera Merger shall not exceed (i) $12.1 million plus Mintera’s cash on hand with respect to up front payments at closing, plus (ii) $20 million with respect to post closing payments under the Mintera Merger Agreement, which include all earn outs but are exclusive of any amounts paid in stock of Parent. This consent is For clarity, the foregoing does not a waiver include any payment of fees and expenses to be paid by Parent or any of its Subsidiaries;
(viii) The failure to satisfy any of the conditions in clause (i) through (vii) above shall render the foregoing consent to any other event, condition, transaction, act or omission whether related or unrelated to the MGAM Merger, except as expressly stated hereinMintera Merger ineffective and therefore the consummation of the Mintera Merger an Event of Default.
(cf) BorrowersThe failure by Obligors to satisfy any of the following conditions or covenants or, if applicable, the condition in clause (d) above, within the prescribed time periods shall constitute an Event of Default:
(i) On or before the date that is 15 days after the Mintera Merger Date (the “Mintera Delivery Deadline”), Agent shall have received copies of the Governing Documents of Mintera, as amended, modified, or supplemented as of the date of delivery;
(ii) On or before the Mintera Delivery Deadline, Agent shall have received a certificate of status with respect to Mintera, dated within 15 days of the date of delivery, such certificate to be issued by the appropriate officer of Mintera’s jurisdiction of organization, which certificate shall indicate that Mintera is in good standing in such jurisdiction;
(iii) On or before the Mintera Delivery Deadline, Agent shall have received a certificate of status with respect to Mintera, dated within 30 days of the date of delivery, such certificates to be issued by the appropriate officer of the jurisdictions (other than Mintera’s jurisdiction of organization) in which the failure of Mintera to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Mintera is in good standing in such jurisdictions;
(iv) Within 2 Business Days of the Mintera Merger Date, Borrowers shall deliver to Agent a certificate of an Authorized Person of Parent attaching the Certificate of Merger issued by the Secretary of State of Delaware evidencing the consummation of the Mintera Merger;
(v) On or before the Mintera Delivery Deadline, Agent, for the ratable benefit of the Lenders, shall have a perfected (other than as contemplated by clause (ix) below) first priority Lien over all the Collateral of Mintera, subject only to Permitted Liens;
(vi) On or before the Mintera Delivery Deadline, Parent and Borrowers shall cause Mintera to deliver to Agent’s counsel all documents that would be required following the Mintera Merger pursuant to the New Subsidiary Covenants, fully executed and in final form, and Parent and Obligors shall enter into any amendments to the Loan Documents deemed necessary by Agent further agree that, upon consummation to take into account the effects of the MGAM MergerMintera Merger and addition of Mintera as a Subsidiary;
(vii) On or before the Mintera Delivery Deadline, wherever used Parent and Borrowers shall cause the termination of the Amended and Restated Loan and Security Agreement dated September 14, 2009, by and between Mintera and Silicon Valley Bank, the Export-Import Bank Loan and Security Agreement dated September 14, 2009, by and between Mintera and Silicon Valley Bank, and the Loan and Security Agreement dated as of December 31, 2008, by and between Mintera and Velocity Financial Group, Inc. (as predecessor in interest to Velocity Venture Funding, LLC), and the Credit Agreement or termination of any security interests relating to any of the agreements described in this Section 3(f)(vii), and shall deliver to Agent’s counsel evidence, satisfactory to Agent, of such terminations;
(viii) On or before the date that is 60 days after the Mintera Merger Date, Borrowers shall deliver to Agent’s counsel updated schedules to the Loan Documents, as applicable; provided, that in no event may any schedule be updated in a manner that would reflect or evidence a Default or an Event of Default; provided further, that pending such direct update of the term “Borrowers” will schedules to the Loan Documents, such schedules shall be deemed to be amended to be include and reflect (i) the term “Borrower” and, information about Mintera as reflected in the disclosures attached to the extent applicableMintera Merger Agreement, will refer so long as none of the information reflected in such disclosures is determined by Agent to Multimedia Games Inc. as successor by merger be adverse to MGAM Systems, Inc.the interests of the Lenders, and (ii) the form basic corporate information regarding Mintera;
(ix) Within 60 days of the verbs used Mintera Merger Date, at Agent’s request, Borrowers shall use their commercially reasonable best efforts to deliver to Agent a Collateral Access Agreement with respect to (1) 35 and 00 Xxxxx Xxxx, Xxxxx, XX 00000, and (2) any other facilities located within the United States where Mintera’s assets therein are valued at more than: (y) $250,000 in the aggregate for all such facilities or (z) $100,000 with respect to any individual facility; and
(x) Within 60 days of the Mintera Merger Date, with respect to each Deposit Account and Securities Account maintained in the United States and owned by Mintera, Borrowers shall either (i) deliver to Agent Cash Management Agreements and Control Agreements with respect to the relevant Deposit Account or Securities Account, each in form and substance satisfactory to Agent, or (ii) cause the relevant Deposit Account and Securities Account to be closed and provide Agent satisfactory written evidence of such closure, it being understood that during the period commencing on the Mintera Merger Date and ending on the Mintera Delivery Deadline and notwithstanding Section 6.12, Mintera may maintain balances in such Deposit Accounts and Securities Accounts.
(g) The consent set forth herein shall be limited precisely as written and shall not be deemed to be (1) an amendment, waiver or modification of any other term or condition of the Credit Agreement, or (2) prejudice any right or remedy which the Lender Group may now or in the future have under or in connection with the plural “Borrowers” will be deemed changed to the singular form of such verbs for the singular “Borrower”, where applicableCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Oclaro, Inc.)
