Send us Feedback

NASDAQ OMX Group (NDAQ)
Analysis
SUMMARY
BULLS
BEARS
TOPICS
Data
DATA CENTRAL
STOCK CHART
Financials
SEC FILINGS
BALANCE
INCOME
CASH FLOW

NDAQ » Topics » PHLX FACILITY

This excerpt taken from the NDAQ 10-Q filed Nov 9, 2007.

PHLX FACILITY

Capitalized terms not otherwise defined herein have the same meanings as specified therefor in the Commitment Letter to which this Annex IV is attached.

The availability of the PHLX Facility will be subject solely to satisfaction of the conditions set forth in Section 5 of the Commitment Letter and the following conditions precedent:

 

  1. The Borrower, PHLX and the other parties thereto shall have entered into a merger agreement in form and substance satisfactory to the Lead Arrangers (it being understood that the Merger Agreement, dated November 5, 2007 (the “Merger Agreement”), by and among Borrower, PHLX and the other parties thereto in the form most recently provided to us prior to the execution by the Agents of the Third Amended and Restated Commitment Letter is satisfactory to the Lead Arrangers). The Merger Agreement shall have not been amended or modified in any respect that is materially adverse to the Lenders without the consent of the Lead Arrangers (which consent shall not be unreasonably withheld). The Merger (as defined in the Merger Agreement) shall have been consummated in accordance with the terms of the Merger Agreement without any waiver by the Borrower that is materially adverse to the Lenders (it being understood that any waiver of the condition that the order of the Court of Chancery of the State of Delaware approving the settlement of the litigation pending against PHLX in the Court of Chancery of the State of Delaware, captioned Ginsburg v. Philadelphia Stock Exch., Inc., et al., shall have become final and binding and all appeals shall have been exhausted shall be deemed to be materially adverse to the Lenders) unless the Lead Arrangers shall have consented to such waiver, which consent shall not be unreasonably withheld.

 

  2. Since the date of the Merger Agreement, there shall not have occurred any change, event, circumstance or development that, individually or in the aggregate, has had or is reasonably likely to result in a Company Material Adverse Effect (as defined in the Merger Agreement).

 

  3. The Lenders shall have received certification as to the solvency of the Borrower and each of its subsidiaries (on a consolidated basis and after giving effect to the PHLX Acquisition and the incurrence of indebtedness related thereto) from the chief financial officer of the Borrower.

 

  4. The Lenders shall have received customary opinions of counsel to the Borrower and the Guarantors (which shall cover, among other things, authority, legality, validity, binding effect and enforceability of the documents with respect to the PHLX Facility, and as to the creation and perfection of the liens granted thereunder on the Collateral) and of appropriate local counsel and such corporate resolutions as the Lenders shall reasonably require.

 

  5.

All filings, recordations and searches necessary or desirable in connection with the liens and security interests in the Collateral shall have been duly made; and all filing

 

Annex IV-1

 

and recording fees and taxes shall have been duly paid and any surveys and title insurance, requested by the Administrative Agent with respect to real property interests of the Borrower and its subsidiaries shall have been obtained; provided that, to the extent any Collateral (other than the pledge and perfection of the security interests in the capital stock of wholly-owned domestic subsidiaries held by the Borrower and the Guarantors (to the extent required under Annex I) and other assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the date of closing of the PHLX Acquisition after your use of commercially reasonable efforts to do so, the delivery of such Collateral shall not constitute a condition precedent to the availability of the PHLX Facility on the date of closing of the PHLX Acquisition but shall be required to be delivered after the closing date of the PHLX Acquisition pursuant to arrangements and timing to be mutually agreed.

 

  6. All accrued fees and expenses of the Administrative Agent and the Lead Arrangers (including the fees and expenses of counsel for the Administrative Agent and the Lead Arrangers and local and special counsel for the Administrative Agent and the Lead Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Third Amended and Restated Fee Letter.

 

  7. The negotiation, execution and delivery of definitive documentation with respect to the PHLX Facility reasonably satisfactory to the Agents. Notwithstanding anything in this Third Amended and Restated Commitment Letter, the Third Amended and Restated Fee Letter, the Credit Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations the making of which shall be a condition to availability of the PHLX Facility on the closing date of the PHLX Acquisition shall be (A) such of the representations made by PHLX in the Merger Agreement as are material to the interests of the Lenders, but only to the extent that you have the right to terminate your obligations under the Merger Agreement as a result of a breach of such representations in the Merger Agreement and (B) the Specified Representations (as defined below) and (ii) the terms of the Credit Documentation shall be in a form such that they do not impair availability of the PHLX Facility on the closing date of the PHLX Acquisition if the other conditions set forth in this Annex IV are satisfied. For purposes hereof, “Specified Representations” means the representations and warranties relating to authorization, corporate power and authority, the legal, valid and binding nature and enforceability of the Credit Documentation, Federal Reserve margin regulations and the Investment Company Act.

 

Annex IV-2

Wikinvest © 2006, 2007, 2008, 2009, 2010, 2011, 2012. Use of this site is subject to express Terms of Service, Privacy Policy, and Disclaimer. By continuing past this page, you agree to abide by these terms. Any information provided by Wikinvest, including but not limited to company data, competitors, business analysis, market share, sales revenues and other operating metrics, earnings call analysis, conference call transcripts, industry information, or price targets should not be construed as research, trading tips or recommendations, or investment advice and is provided with no warrants as to its accuracy. Stock market data, including US and International equity symbols, stock quotes, share prices, earnings ratios, and other fundamental data is provided by data partners. Stock market quotes delayed at least 15 minutes for NASDAQ, 20 mins for NYSE and AMEX. Market data by Xignite. See data providers for more details. Company names, products, services and branding cited herein may be trademarks or registered trademarks of their respective owners. The use of trademarks or service marks of another is not a representation that the other is affiliated with, sponsors, is sponsored by, endorses, or is endorsed by Wikinvest.
Powered by MediaWiki