Escrow Release Date. (i) The L/C Issuers, the Term A Lenders and the Revolving Lenders shall not be obligated to make their respective Credit Extensions on the Escrow Release Date, (ii) the Borrower agrees that it shall not direct the Escrow Agent to release the Escrow Account Funds and (iii) the Escrow Release Date shall not occur, until: (a) subject in all respects to the final paragraph of this Section 3.3 and the relevant provisions of Section 6.24 of the Original Loan Agreement, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including pdf) unless otherwise specified: (i) copies of the certificate of formation, certificate of incorporation, certificate of organization, operating agreement, articles of incorporation, memorandum and articles of association and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Director, Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority; (ii) copies of resolutions of the board of directors, manager or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Escrow Release Date in each instance by its Director, Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment; (iii) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable; (iv) the results of a recent Lien search with respect to each Grantor to the extent customary in the applicable jurisdiction and reasonably requested by the Administrative Agent with respect to the Grantors; (A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel to the Loan Parties and (B) favorable written opinions (addressed to the Administrative Agent and the Lenders) of each of Young Xxxxxxx Stargatt & Xxxxxx, LLP, local counsel to the Loan Parties in the state of Delaware, Xxxxx Day, local counsel to the Loan Parties in the state of Texas, and Xxxxxx and Calder, local counsel to the Loan Parties in the Cayman Islands, in each case in form and substance reasonably satisfactory to the Administrative Agent; (vi) an executed Solvency Certificate signed on behalf of the Borrower, dated the Escrow Release Date; (vii) a Guaranty Supplement, duly executed by the SD Guarantor; provided, that if such guarantee cannot be provided as a condition precedent solely because the directors of the SD Guarantor have not authorized such guarantee and the election of new directors to authorize such guarantee has not taken place prior to the Escrow Release Date, such election shall take place and such guarantee shall be provided no later than 5:00 p.m. (New York time) on the Escrow Release Date; (viii) the Security Agreement, duly executed by each Grantor, together with: (A) the certificates representing the shares of Equity Interests that do not constitute Excluded Equity Interests and that are required to be pledged by any Grantor pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof; (B) each promissory note (if any) required to be pledged to the Collateral Agent by any Grantor pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and (C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Grantors; (ix) the Intellectual Property Security Agreements, duly executed by each Grantor party thereto; (x) the Intercreditor Agreement, duly executed and delivered by each party thereto; (xi) the Perfection Certificate, duly executed and delivered by the Grantors; (xii) a Term A Note and a Revolving Note, in each case executed by the Borrower in favor of each Lender that has requested such a Note at least ten (10) Business Days in advance of the Escrow Release Date; and (xiii) the Global Intercompany Note, duly executed by the Borrower and each of its Subsidiaries and any other certificated intercompany note payable to a Grantor and outstanding as of the Escrow Release Date, duly executed by the parties thereto; (b) the Specified Representations of the Loan Parties shall be true and correct in all material respects on and as of the Escrow Release Date; (c) substantially concurrently with the Escrow Release Date, the Xxxxxxxx Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendment, change, consent or supplement or waiver of any provisions thereof, that are materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers in their respective capacities as such without the consent of the Joint Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned; it being understood that (i) any increase or decrease in the purchase price shall not be materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers so long as (x) the granting of any consent under the Acquisition Agreement that is not materially adverse to the Initial Lenders does not otherwise constitute any amendment, change or waiver, (y) any increase in the purchase price is funded with equity and (z) an amount equal to 100% of any reduction price shall be allocated to reduce the aggregate principal amount of the Term Loans (allocated to the Term A Loans, U.S. Term B Loans and/or Euro Term B Loans as agreed by the Joint Lead Arrangers and the Borrower) and the Bridge Facilities (as defined in the Amended and Restated Commitment Letter dated as of November 13, 2015 by and among the Borrower, the Joint Lead Arrangers and the Initial Lenders) on a pro rata basis; (d) the Escrow Release Date Refinancing shall have been consummated substantially concurrently with the release of funds from the Escrow Account on the Escrow Release Date; (e) since October 21, 2015, there shall not have occurred any Company Material Adverse Effect that is continuing; provided that clause (a) of the definition of Company Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this clause (e); (f) such of the representations made by, with respect to or on behalf of the Target in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has (or the Borrower’s applicable Affiliates have) the right to terminate the Borrower’s (or its Affiliate’s) obligations under the Acquisition Agreement (after giving effect to any applicable notice and cure period) (the “Specified Acquisition Agreement Representations”), shall be true and correct in all material respects; (g) concurrently with the release of the funds held in the Escrow Account pursuant to Section 2.17(b)(i), the Borrower shall have instructed the Escrow Agent to pay all fees and expenses required to paid hereunder in connection with the occurrence of the Closing Date and the Escrow Release Date from the funds in the Escrow Account, to the extent invoiced in reasonable detail at least three (3) Business Days before the Closing Date or Escrow Release Date, as applicable (or such later date as the Borrower may reasonably agree); provided that if the Escrow Release Date is not a Business Day, then such fees and expenses shall be transferred out of the Escrow Account on the immediately succeeding Business Day; (h) subject in all respects to the final paragraph of this Section 3.3, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject only to Permitted Liens) on the Collateral shall have been taken; (i) the proceeds of the Senior Secured Notes and the Senior Unsecured Notes shall have been, or shall be substantially concurrently with the Escrow Release Date, released from escrow pursuant to the terms of the Senior Notes Escrow Agreements; (j) the Administrative Agent shall have received (A) if the Escrow Release Date shall have occurred on or after September 29, 2016, the audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, cash flows and shareholders’ equity of the Borrower as of and for the fiscal year ended July 1, 2016, (B) if the Escrow Release Date shall have occurred on or after May 16, 2016, (i) the unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income and cash flows of the Borrower for the fiscal quarter ended April 1, 2016, 2016 and (ii) the unaudited consolidated balance sheets and related statements of operations, comprehensive income and cash flows of the Target for each fiscal quarter of the Target ended after the most recently ended fiscal year of the Target for which financial statements have been provided pursuant to Section 3.2(d)(A)(ii) and ended at least 45 days before the Escrow Release Date (but excluding the fourth quarter of any fiscal year of the Target); (k) the Administrative Agent shall have received, no later than 3 Business Days in advance of the Escrow Release Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Escrow Release Date by the Lenders through the Joint Lead Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act; and (l) (i) in the case of each Borrowing to be made on the Escrow Release Date, the Administrative Agent shall have received the notice required by Section 2.5 hereof and (ii) in the case of the issuance of any Letter of Credit to be issued on the Escrow Release Date, the L/C Issuers shall have received a duly completed Application. For purposes of determining compliance with the conditions specified in this Section 3.3, 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 an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the proposed Escrow Release Date specifying its objection thereto in reasonable detail. The Administrative Agent shall promptly notify the Lenders and the Borrower in writing of the occurrence of the Escrow Release Date and such notification shall be conclusive and binding. Notwithstanding anything to the contrary in this Section 3.3, this Agreement or any other Loan Document, to the extent any security interest in the Collateral (other than any Collateral of the Grantors the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of certificates evidencing equity interests of any material wholly-owned domestic Restricted Subsidiary of the Borrower (except that stock certificates and the accompanying stock power or instrument of the Target’s subsidiaries shall only be required to be delivered on the Escrow Release Date to the extent received from the Target after the Borrower’s use of commercially reasonable efforts to obtain the same)) is not or cannot be provided and/or perfected on the Escrow Release Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the provision and/or perfection of such security interest shall not constitute a condition precedent under this Section 3.3 on the Escrow Release Date but shall be required to be delivered after the Escrow Release Date pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably and not later than 90 days (subject to extensions as may be reasonably agreed to by the Administrative Agent in its sole discretion) after the Escrow Release Date (it being understood that in all instances Mortgages need only be delivered within the period specified in Section 4.2 below).
Appears in 2 contracts
Samples: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)
Escrow Release Date. (i) The L/C Issuers, the Term A Lenders and the Revolving Lenders shall not be obligated to make their respective Credit Extensions on the Escrow Release Date, (ii) the Borrower agrees that it shall not direct the Escrow Agent to release the Escrow Account Funds and (iii) the Escrow Release Date shall not occur, until:
(a) subject in all respects to the final paragraph of this Section 3.3 and the relevant provisions of Section 6.24 of the Original Loan Agreement6.24, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including pdf) unless otherwise specified:
(i) copies of the certificate of formation, certificate of incorporation, certificate of organization, operating agreement, articles of incorporation, memorandum and articles of association and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Director, Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(ii) copies of resolutions of the board of directors, manager or similar governing body of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Escrow Release Date in each instance by its Director, Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iii) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(iv) the results of a recent Lien search with respect to each Grantor to the extent customary in the applicable jurisdiction and reasonably requested by the Administrative Agent with respect to the Grantors;
(A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel to the Loan Parties and (B) favorable written opinions (addressed to the Administrative Agent and the Lenders) of each of Young Xxxxxxx Stargatt & Xxxxxx, LLP, local counsel to the Loan Parties in the state of Delaware, Xxxxx Day, local counsel to the Loan Parties in the state of Texas, and Xxxxxx and Calder, local counsel to the Loan Parties in the Cayman Islands, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vi) an executed Solvency Certificate signed on behalf of the Borrower, dated the Escrow Release Date;
(vii) a Guaranty Supplement, duly executed by the SD Guarantor; provided, that if such guarantee cannot be provided as a condition precedent solely because the directors of the SD Guarantor have not authorized such guarantee and the election of new directors to authorize such guarantee has not taken place prior to the Escrow Release Date, such election shall take place and such guarantee shall be provided no later than 5:00 p.m. (New York time) on the Escrow Release Date;
(viii) the Security Agreement, duly executed by each Grantor, together with:
(A) the certificates representing the shares of Equity Interests that do not constitute Excluded Equity Interests and that are required to be pledged by any Grantor pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof;
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Grantor pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Grantors;
(ix) the Intellectual Property Security Agreements, duly executed by each Grantor party thereto;
(x) the Intercreditor Agreement, duly executed and delivered by each party thereto;
(xi) the Perfection Certificate, duly executed and delivered by the Grantors;
(xii) a Term A Note and a Revolving Note, in each case executed by the Borrower in favor of each Lender that has requested such a Note at least ten (10) Business Days in advance of the Escrow Release Date; and
(xiii) the Global Intercompany Note, duly executed by the Borrower and each of its Subsidiaries and any other certificated intercompany note payable to a Grantor and outstanding as of the Escrow Release Date, duly executed by the parties thereto;
(b) the Specified Representations of the Loan Parties shall be true and correct in all material respects on and as of the Escrow Release Date;
(c) substantially concurrently with the Escrow Release Date, the Xxxxxxxx Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendment, change, consent or supplement or waiver of any provisions thereof, that are materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers in their respective capacities as such without the consent of the Joint Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned; it being understood that (i) any increase or decrease in the purchase price shall not be materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers so long as (x) the granting of any consent under the Acquisition Agreement that is not materially adverse to the Initial Lenders does not otherwise constitute any amendment, change or waiver, (y) any increase in the purchase price is funded with equity and (z) an amount equal to 100% of any reduction price shall be allocated to reduce the aggregate principal amount of the Term Loans (allocated to the Term A Loans, U.S. Term B Loans and/or Euro Term B Loans as agreed by the Joint Lead Arrangers and the Borrower) and the Bridge Facilities (as defined in the Amended and Restated Commitment Letter dated as of November 13, 2015 by and among the Borrower, the Joint Lead Arrangers and the Initial Lenders) on a pro rata basis;
(d) the Escrow Release Date Refinancing shall have been consummated substantially concurrently with the release of funds from the Escrow Account on the Escrow Release Date;
(e) since October 21, 2015, there shall not have occurred any Company Material Adverse Effect that is continuing; provided that clause (a) of the definition of Company Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this clause (e);
(f) such of the representations made by, with respect to or on behalf of the Target in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has (or the Borrower’s applicable Affiliates have) the right to terminate the Borrower’s (or its Affiliate’s) obligations under the Acquisition Agreement (after giving effect to any applicable notice and cure period) (the “Specified Acquisition Agreement Representations”), shall be true and correct in all material respects;
(g) concurrently with the release of the funds held in the Escrow Account pursuant to Section 2.17(b)(i), the Borrower shall have instructed the Escrow Agent to pay all fees and expenses required to paid hereunder in connection with the occurrence of the Closing Date and the Escrow Release Date from the funds in the Escrow Account, to the extent invoiced in reasonable detail at least three (3) Business Days before the Closing Date or Escrow Release Date, as applicable (or such later date as the Borrower may reasonably agree); provided that if the Escrow Release Date is not a Business Day, then such fees and expenses shall be transferred out of the Escrow Account on the immediately succeeding Business Day;
(h) subject in all respects to the final paragraph of this Section 3.3, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject only to Permitted Liens) on the Collateral shall have been taken;
(i) the proceeds of the Senior Secured Notes and the Senior Unsecured Notes shall have been, or shall be substantially concurrently with the Escrow Release Date, released from escrow pursuant to the terms of the Senior Notes Escrow Agreements;
(j) the Administrative Agent shall have received (A) if the Escrow Release Date shall have occurred on or after September 29, 2016, the audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, cash flows and shareholders’ equity of the Borrower as of and for the fiscal year ended July 1, 2016, (B) if the Escrow Release Date shall have occurred on or after May 16, 2016, (i) the unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income and cash flows of the Borrower for the fiscal quarter ended April 1, 2016, 2016 and (ii) the unaudited consolidated balance sheets and related statements of operations, comprehensive income and cash flows of the Target for each fiscal quarter of the Target ended after the most recently ended fiscal year of the Target for which financial statements have been provided pursuant to Section 3.2(d)(A)(ii) and ended at least 45 days before the Escrow Release Date (but excluding the fourth quarter of any fiscal year of the Target);
(k) the Administrative Agent shall have received, no later than 3 Business Days in advance of the Escrow Release Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Escrow Release Date by the Lenders through the Joint Lead Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act; and
(l) (i) in the case of each Borrowing to be made on the Escrow Release Date, the Administrative Agent shall have received the notice required by Section 2.5 hereof and (ii) in the case of the issuance of any Letter of Credit to be issued on the Escrow Release Date, the L/C Issuers shall have received a duly completed Application. For purposes of determining compliance with the conditions specified in this Section 3.3, 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 an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the proposed Escrow Release Date specifying its objection thereto in reasonable detail. The Administrative Agent shall promptly notify the Lenders and the Borrower in writing of the occurrence of the Escrow Release Date and such notification shall be conclusive and binding. Notwithstanding anything to the contrary in this Section 3.3, this Agreement or any other Loan Document, to the extent any security interest in the Collateral (other than any Collateral of the Grantors the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of certificates evidencing equity interests of any material wholly-owned domestic Restricted Subsidiary of the Borrower (except that stock certificates and the accompanying stock power or instrument of the Target’s subsidiaries shall only be required to be delivered on the Escrow Release Date to the extent received from the Target after the Borrower’s use of commercially reasonable efforts to obtain the same)) is not or cannot be provided and/or perfected on the Escrow Release Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the provision and/or perfection of such security interest shall not constitute a condition precedent under this Section 3.3 on the Escrow Release Date but shall be required to be delivered after the Escrow Release Date pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably and not later than 90 days (subject to extensions as may be reasonably agreed to by the Administrative Agent in its sole discretion) after the Escrow Release Date (it being understood that in all instances Mortgages need only be delivered within the period specified in Section 4.2 below).
Appears in 2 contracts
Samples: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)
Escrow Release Date. (i) The L/C Issuers, the Term A Lenders and the Revolving Lenders shall not be obligated to make their respective Credit Extensions on the Escrow Release Date, (ii) the Borrower agrees that it shall not direct the Escrow Agent to release the Escrow Account Funds Funds, and (iii) the Escrow Release Date shall not occur, until:
(a) subject in all respects Borrower has delivered to the final paragraph Administrative Agent a written opinion of this Section 3.3 (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, special counsel for the Loan Parties, and (ii) each local counsel specified on Schedule 4.03(a), in each case (A) dated the relevant provisions of Section 6.24 of the Original Loan AgreementEscrow Release Date, (B) addressed to each L/C Issuer, the Administrative Agent shall have received each and the Lenders and (C) covering customary matters relating to the Loan Documents.
(b) Borrower has delivered to the Administrative Agent a certificate of the following, Secretary or Assistant Secretary or similar officer of each of which shall be originals or facsimiles (or delivered by other electronic transmission, including pdf) unless otherwise specifiedLoan Party dated the Escrow Release Date and certifying:
(i) copies a copy of the certificate of formation, certificate or articles of incorporation, certificate of organizationlimited partnership, operating agreementcertificate of formation or other equivalent constituent and governing documents, articles of incorporation, memorandum and articles of association and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any including all amendments thereto, of such Loan Party, (1) in the case of a corporation, certified in each instance as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its Directororganization, Secretary, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, other person duly authorized by the applicable Governmental Authority;constituent documents of such Loan Party,
(ii) copies a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Escrow Release Date and at all times since a date prior to the date of the resolutions described in clause (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of the board Directors (or equivalent governing body) of directors, manager or similar governing body of each such Loan Party approving and (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified dated as of the Escrow Release Date in each instance by its Directorto which such person is a party and that such resolutions have not been modified, Secretary, Assistant Secretary rescinded or Chief Financial Officer as being amended and are in full force and effect without modification or amendment;on the Escrow Release Date,
(iiiv) copies 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, and
(vi) as to the certificates absence of good standing (if available) any pending proceeding for each the dissolution or liquidation of such Loan Party from or, to the office knowledge of such person, threatening the secretary existence of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;such Loan Party.
(ivc) the results of a recent Lien search with respect to each Grantor to the extent customary in the applicable jurisdiction and reasonably requested by the Administrative Agent with respect to the Grantors;
(A) a favorable written opinion (addressed Borrower has delivered to the Administrative Agent a solvency certificate substantially in the form of Exhibit J and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and the Lenders) of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel Subsidiaries on a combined or consolidated basis after giving effect to the Loan Parties and (B) favorable written opinions (addressed to the Administrative Agent and the Lenders) of each of Young Xxxxxxx Stargatt & Xxxxxx, LLP, local counsel to the Loan Parties in the state of Delaware, Xxxxx Day, local counsel to the Loan Parties in the state of Texas, and Xxxxxx and Calder, local counsel to the Loan Parties in the Cayman Islands, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vi) an executed Solvency Certificate signed Transactions on behalf of the Borrower, dated the Escrow Release Date;.
(viid) a Guaranty SupplementBorrower has delivered all fees payable to the Agents, duly executed by Co-Lead Arrangers or to any Lender on or prior to the SD Guarantor; providedEscrow Release Date and, that if such guarantee cannot be provided as a condition precedent solely because to the directors of extent invoiced, all other amounts due and payable pursuant to the SD Guarantor have not authorized such guarantee and the election of new directors to authorize such guarantee has not taken place Loan Documents on or prior to the Escrow Release Date, such election shall take place and such guarantee shall be provided no later than 5:00 p.m. (New York time) on including, to the extent invoiced at least one Business Day prior to the Escrow Release Date;
, reimbursement or payment of all reasonable and documented out-of-pocket expenses (viii) the Security Agreementincluding reasonable fees, duly executed by each Grantor, together with:
(A) the certificates representing the shares charges and disbursements of Equity Interests that do not constitute Excluded Equity Interests and that are required to be pledged by any Grantor pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof;
(B) each promissory note (if anyXxxxxx Xxxxxx & Xxxxxxx llp) required to be pledged reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(e) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral Requirement”) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral Agent by any Grantor Requirement shall be satisfied (or waived pursuant to the Security Agreement, endorsed (without recourseterms hereof) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Grantors;
(ix) the Intellectual Property Security Agreements, duly executed by each Grantor party thereto;
(x) the Intercreditor Agreement, duly executed and delivered by each party thereto;
(xi) the Perfection Certificate, duly executed and delivered by the Grantors;
(xii) a Term A Note and a Revolving Note, in each case executed by the Borrower in favor of each Lender that has requested such a Note at least ten (10) Business Days in advance of the Escrow Release Date; and
(xiii) the Global Intercompany Note, duly executed by the Borrower and each of its Subsidiaries and any other certificated intercompany note payable to a Grantor and outstanding as of the Escrow Release Date, duly executed by the parties thereto;.
(bf) All Indebtedness under the Specified Representations of the Loan Parties Existing PH Facility has been, or shall be true and correct in all material respects on and as of the Escrow Release Date;
(c) substantially concurrently with the Escrow Release Date, repaid and all commitments thereunder terminated, and Borrower shall have delivered to the Xxxxxxxx Administrative Agent evidence of such repayment and termination.
(g) The Acquisition has been consummated or shall be consummated in all material respects in accordance prior to or simultaneously or substantially concurrently with the terms of the Acquisition Agreement without giving effect to any amendment, change, consent or supplement or waiver of any provisions thereof, that are materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers in their respective capacities as such without the consent of the Joint Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned; it being understood that (i) any increase or decrease in the purchase price shall not be materially adverse to the interests of the Initial Lenders or the Joint Lead Arrangers so long as (x) the granting of any consent under the Acquisition Agreement that is not materially adverse to the Initial Lenders does not otherwise constitute any amendment, change or waiver, (y) any increase in the purchase price is funded with equity and (z) an amount equal to 100% of any reduction price shall be allocated to reduce the aggregate principal amount of the Term Loans (allocated to the Term A Loans, U.S. Term B Loans and/or Euro Term B Loans as agreed by the Joint Lead Arrangers and the Borrower) and the Bridge Facilities (as defined in the Amended and Restated Commitment Letter dated as of November 13, 2015 by and among the Borrower, the Joint Lead Arrangers and the Initial Lenders) on a pro rata basis;
(d) the Escrow Release Date Refinancing in accordance with applicable law and substantially on the terms described in the Information Memorandum under “Executive Summary—Transaction Overview” and in the Notes Offering Memorandum under “Summary—The Transactions” and all regulatory approvals required for the consummation of the Transactions will have been obtained.
(h) The PH Contribution shall have been consummated or shall be consummated simultaneously or substantially concurrently with the release of funds from closing under this Agreement.
(i) Prior to, simultaneously, or substantially concurrently with the Escrow Account Release Date, CGP shall have contributed cash (including cash on the balance sheet of the PH Entities on the Escrow Release Date;) to Holdings in the form of common equity and which shall have been further contributed as common equity to the Borrower in an aggregate amount of at least $582,000,000 (the “Equity Financing”).
(ej) since October 21On the Escrow Release Date, 2015, there shall not have occurred any Company Material Adverse Effect that is continuing; provided that clause (a) of the definition of Company Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this clause (e);
(f) such of the representations made by, with respect to or on behalf of the Target in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Borrower has (or the Borrower’s applicable Affiliates have) the right to terminate the Borrower’s (or its Affiliate’s) obligations under the Acquisition Agreement (after giving effect to any applicable notice and cure period) (the “Specified Acquisition Agreement Representations”), shall be true and correct in all material respects;
(g) concurrently with the release of the funds held in the Escrow Account pursuant to Section 2.17(b)(i)Transactions, the Borrower shall and its Subsidiaries have instructed no outstanding third party debt for borrowed money other than (i) the Escrow Agent to pay all fees Loans and expenses required to paid hereunder in connection with other extensions of credit under this Agreement, (ii) the occurrence Second Priority Senior Secured Notes, (iii) Indebtedness of the Closing Date Xxxxxxxx Entities under the Credit Agreement, dated as of November 2, 2012, among CEC, Corner Investment Propco, LLC, the lenders party thereto and the Escrow Release Date from the funds in the Escrow AccountCredit Suisse AG, to the extent invoiced in reasonable detail at least three (3) Business Days before the Closing Date or Escrow Release DateCayman Islands Branch, as applicable administrative agent and collateral agent and (or such later date as the Borrower may reasonably agree); provided that if the Escrow Release Date is not a Business Day, then such fees and expenses shall be transferred out of the Escrow Account on the immediately succeeding Business Day;iv) Indebtedness permitted by Section 6.01.
(hk) subject in all respects to the final paragraph of this Section 3.3, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject only to Permitted Liens) on the Collateral shall have been taken;
Either (i) the proceeds of the Second Priority Senior Secured Notes and the Senior Unsecured Notes shall have been, or shall be substantially concurrently with the Escrow Release Date, released from escrow pursuant to the terms of the Second Priority Senior Secured Notes Escrow Agreements;Agreement or (ii) the Borrower shall have received any combination of (a) equity contributions from Holdings in the form of common equity and/or (b) the proceeds of unsecured Indebtedness of the Borrower and the Guarantors or Indebtedness of the Borrower and Guarantors secured by Liens on the Collateral that are junior to the Liens securing the Obligations and subject to a Permitted Junior Intercreditor Agreement, in an aggregate amount not less than the amount of proceeds in respect of the Second Priority Senior Secured Notes.
(jl) Borrower has delivered to the Administrative Agent evidence (i) that all Liens granted pursuant to the Existing Debt Documents on the equity interests of the Xxxxxx’x New Orleans Entities and the assets owned by each of the Xxxxxx’x New Orleans Entities have been, or, substantially concurrently with the Escrow Release Date, will be released and that all filings and/or recordings made in respect of such Liens have been, or, substantially concurrently with the Escrow Release Date, will be terminated and (ii) that any other Lien on the assets of or equity interests in any Loan Party or any of their respective Subsidiaries (a) is permitted pursuant to Section 6.02(a), (b) is permitted pursuant to Section 6.02, other than Liens securing Indebtedness of the type described in clauses (a) or (f) of the definition of Indebtedness if, in the case of clause (f), such Liens are secured by all or substantially all of the assets of any Loan Party, (c) is permitted pursuant to Section 6.02 and ranks junior to the Liens on the Collateral securing the Obligations and subject to a Permitted Junior Intercreditor Agreement, (d) is permitted pursuant to Section 6.02 and is approved by the Administrative Agent or (e) has been or will be, substantially concurrently with the Escrow Release Date, released.
(m) Borrower has delivered to the Administrative Agent evidence that (and the Administrative Agent shall have received (Aa copy of) if the Escrow Release Date shall have occurred on or after September 29, 2016, the audited consolidated balance sheets and related audited consolidated statements of income, comprehensive income, cash flows and shareholders’ equity opinion described in Section 5.7(i)(b) of the Borrower Purchase Agreement (which may be delivered in the form of one or more opinions) dated as of and for the fiscal year ended July 1, 2016, (B) if the Escrow Release Date shall have occurred on or after May 16, 2016, (i) the unaudited consolidated balance sheets and related unaudited statements of income, comprehensive income and cash flows of the Borrower for the fiscal quarter ended April 1, 2016, 2016 and (ii) the unaudited consolidated balance sheets and related statements of operations, comprehensive income and cash flows of the Target for each fiscal quarter of the Target ended after the most recently ended fiscal year of the Target for which financial statements have been provided pursuant a date reasonably proximate to Section 3.2(d)(A)(ii) and ended at least 45 days before the Escrow Release Date (but excluding or such earlier date in the fourth quarter case of any fiscal year of Purchased Properties that are purchased by the Target);
(k) the Administrative Agent shall have received, no later than 3 Business Days in advance of the Escrow Release Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days Borrower prior to the Escrow Release Date by on a date reasonably proximate to the Lenders through date such purchase is consummated) was delivered to the Joint Lead Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsparties described therein, including without limitation each substantially in the Patriot Act; andsame form delivered on or prior to the date of the Purchase Agreement.
(ln) All Indebtedness under the Interim Loan Facility has been, or will be substantially concurrently with the Escrow Release Date, repaid and all commitments thereunder and all documents governing such Interim Loan Facility terminated, and Borrower shall have delivered to the Administrative Agent evidence of such repayment and termination and the release and termination of all Liens securing such Interim Loan Facility (iincluding all filings made in connection therewith) in on or substantially concurrently with the Escrow Release Date.
(o) In the case of each any Borrowing to be made of Revolving Facility Loans or L/C Credit Extension on the Escrow Release Date, the Administrative Agent Borrower shall have received the notice required by Section 2.5 hereof and (ii) delivered in the case of a Borrowing, a Borrowing Request required by Section 2.03 or, in the issuance case of any an L/C Credit Extension, the Borrower shall have delivered a Letter of Credit to be issued on the Escrow Release Date, the L/C Issuers shall have received a duly completed Application. For purposes of determining compliance with the conditions specified in this Application as required by Section 3.3, 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 an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the proposed Escrow Release Date specifying its objection thereto in reasonable detail. The Administrative Agent shall promptly notify the Lenders and the Borrower in writing of the occurrence of the Escrow Release Date and such notification shall be conclusive and binding. Notwithstanding anything to the contrary in this Section 3.3, this Agreement or any other Loan Document, to the extent any security interest in the Collateral (other than any Collateral of the Grantors the security interest in which may be perfected by the filing of a UCC financing statement or the delivery of certificates evidencing equity interests of any material wholly-owned domestic Restricted Subsidiary of the Borrower (except that stock certificates and the accompanying stock power or instrument of the Target’s subsidiaries shall only be required to be delivered on the Escrow Release Date to the extent received from the Target after the Borrower’s use of commercially reasonable efforts to obtain the same)) is not or cannot be provided and/or perfected on the Escrow Release Date after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the provision and/or perfection of such security interest shall not constitute a condition precedent under this Section 3.3 on the Escrow Release Date but shall be required to be delivered after the Escrow Release Date pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably and not later than 90 days (subject to extensions as may be reasonably agreed to by the Administrative Agent in its sole discretion) after the Escrow Release Date (it being understood that in all instances Mortgages need only be delivered within the period specified in Section 4.2 below2.05(b).
Appears in 1 contract
Samples: First Lien Credit Agreement (Caesars Acquisition Co)
