Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Delayed Draw Term A Loans and Term B Loans shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2): (a) The Execution Date shall have occurred. (b) Payment of all fees, interest and other amounts due and payable as of the Acquisition Closing Date from the Company and its Subsidiaries to the Arrangers, Administrative Agent and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one Business Day prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed). (c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on the Acquisition Closing Date, in accordance with the Offer Documentation and no amendments, consents or waivers to or of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to the Lenders or the Arrangers shall have been made without the consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company), it being understood that any amendments, consents or waivers in respect of the Key Offer Terms or the provisions of the Business Combination Agreement limiting recourse against financing sources shall be material and adverse to the Lenders and Arrangers. The Non-Tender Documents shall be effective. (i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not to be unreasonably withheld, delayed or conditioned) prior to submission to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (x) and (ii) the Unconditional Date shall have occurred. (d) As of the Acquisition Closing Date, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing or would result from the from the extensions of credit hereunder on the Acquisition Closing Date. (e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding other than (i) the Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the New Senior Unsecured Notes, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed). (f) The Administrative Agent shall have received (x) a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c), (d) and (e). (g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 with respect to the Advances being made on the Acquisition Closing Date. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders and the Term B Lenders that the conditions in this Section 4.3 have been satisfied (or waived) in writing on the date thereof, and such notice shall be conclusive and binding.
Appears in 6 contracts
Samples: Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (DIEBOLD NIXDORF, Inc)
Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Delayed Draw Term A Initial Bridge Loans and Term B Loans on the Acquisition Closing Date shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2):
(a) The Execution Date shall have occurred.
(b) Payment of all fees, interest and other amounts due and payable as of the Acquisition Closing Date from the Company and its Subsidiaries to the Arrangers, Administrative Agent and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one Business Day prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed).
(c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on the Acquisition Closing Date, in accordance with the Offer Documentation and no amendments, consents or waivers to or of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to the Lenders or the Arrangers shall have been made without the consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company), it being understood that any amendments, consents or waivers in respect of the Key Offer Terms or the provisions of the Business Combination Agreement limiting recourse against financing sources shall be material and adverse to the Lenders and Arrangers. The Non-Tender Documents shall be effective.
(i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not to be unreasonably withheld, delayed or conditioned) prior to submission to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (x) and (ii) the Unconditional Date shall have occurred.
(d) As of the Acquisition Closing Date, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing or would result from the from the extensions of credit hereunder on the Acquisition Closing Date.
(e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding other than (i) the Senior Secured Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the Bridge Facility and/or the New Senior Unsecured NotesNotes in lieu of all or a portion thereof, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
(f) The Administrative Agent shall have received (x) a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c4.2(c), (d) and (e).
(g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 with respect to the Advances being made on the Acquisition Closing Date. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders Company and the Term B Lenders that the conditions in this Section 4.3 4.2 have been satisfied (or waived) in writing on the date thereof, and such notice shall be conclusive and binding.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Diebold Inc), Bridge Credit Agreement (Diebold Inc)
Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Delayed Draw Term A Loans and Term B Loans shall become effective on the date on which each of the following conditions is satisfied Issuing Bank to issue Letters of Credit hereunder pursuant to the Acquisition Closing Date Commitments are subject to the satisfaction (or waived waiver in accordance with Section 8.2):9.02) of the following conditions:
(a) The Execution Effective Date shall have occurred.
(b) Payment Receipt by the Administrative Agent of the following documents, each dated the Acquisition Closing Date unless otherwise indicated:
1. to the extent any Loans are to be made on such date a notice of borrowing in accordance with Section 2.03;
2. a copy, certified by the Revolving Borrower, of the Acquisition Agreement or otherwise reflecting amendments to, or waivers of, the terms and conditions applicable to the Acquisition;
3. a certificate of the Revolving Borrower certifying that the conditions set forth in clauses (c), (d), (e), (h) and (i) of this Section 4.02 have been satisfied;
4. a certificate substantially in the form attached hereto as Exhibit E of the Revolving Borrower; and
5. a duly executed solvency certificate (with respect to the Company and its Subsidiaries) from the chief financial officer of the Company substantially in the form attached hereto as Exhibit G.
(c) The Specified Representations and the Specified Acquisition Agreement Representations shall each be true and correct in all feesmaterial respects on and as of the Acquisition Closing Date as if made on such date (except where such representations and warranties expressly relate to an earlier date, interest in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date).
(d) The Acquisition shall have been, or substantially concurrently with the occurrence of the Acquisition Closing Date shall be, consummated in all material respects in accordance with the terms and conditions of the Acquisition Agreement, without giving effect to any modifications, amendments, consents requests or waivers (including any modifications as a result of clause 7.4(c)(i) of the Acquisition Agreement) by the Company (or its applicable Affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent (it being understood and agreed that (a) (i) the any increase in the purchase price funded with the issuance of any equity securities by the Company or any of its Subsidiaries; (ii) any increase in the purchase price funded other than through the issuance of equity securities by the Company or any of its Subsidiaries of not more than 10 %; and (iii) any decrease in the purchase price of not more than 10% accompanied by a reduction in the Commitments (it being understood that if any Bridge Facility is outstanding at such time such commitment reduction may be allocated first to such Bridge Facility and second to the Commitments) on a dollar for dollar (or euro for euro) basis, in each case, shall not be deemed materially adverse to the interests of the Lenders and (b) any modification, amendment or waiver of the Specified Acquisition Agreement Representations shall be deemed materially adverse to the interests of the Lenders and may only be modified, amended or waived with the consent of the Administrative Agent).
(e) Since November 6, 2014 there has not been any change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have an Omega Material Adverse Effect and which is not remedied prior to and continuing on the Acquisition Closing Date.
(f) All fees and other amounts due and payable as of on or prior to the Acquisition Closing Date from by the Company and its Subsidiaries Loan Parties to the Arrangers, Administrative Agent Lead Arrangers and the Lenders under the Loan Documents and (including pursuant to any fee or similar letters executed by the Company in connection herewith letters) shall be paid, including including, to the extent invoiced by the relevant Person, reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its SubsidiariesLoan Parties hereunder on the Acquisition Closing Date.
(g) The Administrative Agent shall have received, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one 2 Business Day Days prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed).
(c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 requested at least 15 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on prior to the Acquisition Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in accordance with each case relating to Omega and its Subsidiaries.
(1) On the Offer Documentation and no amendmentsAcquisition Closing Date, consents or waivers after giving effect to or the Transactions, neither the Company nor any of its Subsidiaries shall have any material Indebtedness for borrowed money other than (a) the Bridge Facility (and/or the New Senior Notes issued in lieu of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to Bridge Facility), (b) the Lenders or Advances, (c) the Arrangers shall have been made without facilities set forth in the consent of Existing Term Loan Credit Agreement (or, in lieu thereof, the Arrangers New Term Loan Credit Facility), (such consent d) the Existing Notes in an aggregate outstanding principal amount not to be unreasonably withheldexceed $2.3 billion, delayed or conditioned(e) any indebtedness under any asset securitization transactions permitted hereunder, it being agreed such consent shall be deemed given if (f) the Arrangers fail Omega Surviving Debt, (g) other indebtedness of Omega and its Subsidiaries relating to respond within 2 Business Days after written notice from cash pooling and overdraft arrangements otherwise permitted under the Company), Loan Documents (it being understood that any amendments, consents or waivers indebtedness permitted pursuant to this clause (g) shall not be set forth on Schedule 6.01 but instead must be permitted pursuant to other negative covenant exceptions set forth in respect this Agreement) and (h) other indebtedness to be agreed by the Revolving Borrower and the Administrative Agent.
(2) In connection with the revolving facility set forth in clause (vi) of the Key Offer Terms definition of Omega Surviving Debt, substantially contemporaneously herewith the Company or the provisions of the Business Combination Agreement limiting recourse against financing sources its applicable Subsidiary shall be material and adverse have delivered irrevocable written notice to the Lenders applicable parties under such revolving facility that the prepayment and Arrangers. The Non-Tender Documents termination in full of such revolving facility shall be effectiveoccur no later than the 10th business day following the Acquisition Closing Date (or such later date mutually agreed to by the Company and the Administrative Agent), and the Administrative Agent shall have received a copy of such notice.
(i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not historical financial statements required to be unreasonably withheld, delayed or conditioned) delivered prior to submission the Effective Date pursuant to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (xSections 3.04(a) and (ii) the Unconditional Date shall have occurred.
(d) As b); provided that filing of the Acquisition Closing Daterequired financial statements on form 10-K, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing form 10-Q or would result from the from the extensions of credit hereunder on the Acquisition Closing Date.
(e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding such other than (i) the Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the New Senior Unsecured Notes, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to public filings by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
(f) The Administrative Agent shall have received (x) a certificate from applicable entities will satisfy the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c), (d) and (e).
(g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 foregoing requirements with respect to the Advances being made on the Acquisition Closing DateCompany, Omega their Subsidiaries. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders Revolving Borrower and the Term B Lenders that of the conditions in this Section 4.3 have been satisfied (or waived) in writing on the date thereofAcquisition Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Tranche 2 Delayed Draw Term A Loans and Term B Loans shall become effective on the date on which each of Acquisition Closing Date is subject to the following conditions is satisfied satisfaction (or waived waiver in accordance with Section 8.2):9.02) of the following conditions:
(a) The Execution Effective Date shall have occurred.
(b) Payment Receipt by the Administrative Agent of the following documents, each dated the Acquisition Closing Date unless otherwise indicated:
1. to the extent any Tranche 2 Delayed Draw Loans are to be made on such date a notice of borrowing in accordance with Section 2.03;
2. a copy, certified by the Term Facility Borrowers, of the Acquisition Agreement or otherwise reflecting amendments to, or waivers of, the terms and conditions applicable to the Acquisition;
3. a certificate of the Term Facility Borrowers certifying that the conditions set forth in clauses (c), (d), (e), (h) and (i) of this Section 4.02 have been satisfied;
4. The Administrative Agent shall have received a certificate substantially in the form attached hereto as Exhibit E of the Term Facility Borrowers; and
5. a duly executed solvency certificate (with respect to the Company and its Subsidiaries) from the chief financial officer of the Company substantially in the form attached hereto as Exhibit G.
(c) The Specified Representations and the Specified Acquisition Agreement Representations shall each be true and correct in all feesmaterial respects on and as of the Acquisition Closing Date as if made on such date (except where such representations and warranties expressly relate to an earlier date, interest in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date).
(d) The Acquisition shall have been, or substantially concurrently with the occurrence of the Acquisition Closing Date shall be, consummated in all material respects in accordance with the terms and conditions of the Acquisition Agreement, without giving effect to any modifications, amendments, consents requests or waivers (including any modifications as a result of clause 7.4(c)(i) of the Acquisition Agreement) by the Company (or its applicable Affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent (it being understood and agreed that (a) (i) the any increase in the purchase price funded with the issuance of any equity securities by the Company or any of its Subsidiaries; (ii) any increase in the purchase price funded other than through the issuance of equity securities by the Company or any of its Subsidiaries of not more than 10 %; and (iii) any decrease in the purchase price of not more than 10% accompanied by a reduction in the Commitments (it being understood that if any Bridge Facility is outstanding at such time such commitment reduction may be allocated first to such Bridge Facility and second to the Commitments) on a dollar for dollar (or euro for euro) basis, in each case, shall not be deemed materially adverse to the interests of the Lenders and (b) any modification, amendment or waiver of the Specified Acquisition Agreement Representations shall be deemed materially adverse to the interests of the Lenders and may only be modified, amended or waived with the consent of the Administrative Agent).
(e) Since November 6, 2014 there has not been any change, development or event that, individually or in the aggregate, has had or would reasonably be expected to have an Omega Material Adverse Effect and which is not remedied prior to and continuing on the Acquisition Closing Date.
(f) All fees and other amounts due and payable as of on or prior to the Acquisition Closing Date from by the Company and its Subsidiaries Loan Parties to the Arrangers, Administrative Agent Lead Arrangers and the Lenders under the Loan Documents and (including pursuant to any fee or similar letters executed by the Company in connection herewith letters) shall be paid, including including, to the extent invoiced by the relevant Person, reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its SubsidiariesLoan Parties hereunder on the Acquisition Closing Date.
(g) The Administrative Agent shall have received, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one 2 Business Day Days prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed).
(c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 requested at least 15 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on prior to the Acquisition Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in accordance with each case relating to Omega and its Subsidiaries.
(1) On the Offer Documentation and no amendmentsAcquisition Closing Date, consents or waivers after giving effect to or the Transactions, neither the Company nor any of its Subsidiaries shall have any material Indebtedness for borrowed money other than (a) the Bridge Facility (and/or the New Senior Notes issued in lieu of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to Bridge Facility), (b) the Lenders or Loans, (c) the Arrangers shall have been made without facilities set forth in the consent of Existing Revolving Credit Agreement (or, in lieu thereof, the Arrangers New Revolving Credit Facilities), (such consent d) the Existing Notes in an aggregate outstanding principal amount not to be unreasonably withheldexceed $2.3 billion, delayed or conditioned(e) any indebtedness under any asset securitization transactions permitted hereunder, it being agreed such consent shall be deemed given if (f) the Arrangers fail Omega Surviving Debt, (g) other indebtedness of Omega and its Subsidiaries relating to respond within 2 Business Days after written notice from cash pooling and overdraft arrangements otherwise permitted under the Company), Loan Documents (it being understood that any amendments, consents or waivers indebtedness permitted pursuant to this clause (g) shall not be set forth on Schedule 6.01 but instead must be permitted pursuant to other negative covenant exceptions set forth in respect this Agreement) and (h) other indebtedness to be agreed by the Term Facility Borrowers and the Administrative Agent.
(2) In connection with the revolving facility set forth in clause (vi) of the Key Offer Terms definition of Omega Surviving Debt, substantially contemporaneously herewith the Company or the provisions of the Business Combination Agreement limiting recourse against financing sources its applicable Subsidiary shall be material and adverse have delivered irrevocable written notice to the Lenders applicable parties under such revolving facility that the prepayment and Arrangers. The Non-Tender Documents termination in full of such revolving facility shall be effectiveoccur no later than the 10th business day following the Acquisition Closing Date (or such later date mutually agreed to by the Company and the Administrative Agent), and the Administrative Agent shall have received a copy of such notice.
(i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not historical financial statements required to be unreasonably withheld, delayed or conditioned) delivered prior to submission the Effective Date pursuant to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (xSections 3.04(a) and (ii) the Unconditional Date shall have occurred.
(d) As b); provided that filing of the Acquisition Closing Daterequired financial statements on form 10-K, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing form 10-Q or would result from the from the extensions of credit hereunder on the Acquisition Closing Date.
(e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding such other than (i) the Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the New Senior Unsecured Notes, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to public filings by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
(f) The Administrative Agent shall have received (x) a certificate from applicable entities will satisfy the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c), (d) and (e).
(g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 foregoing requirements with respect to the Advances being made on the Acquisition Closing DateCompany, Omega their Subsidiaries. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders Facility Borrowers and the Term B Lenders that of the conditions in this Section 4.3 have been satisfied (or waived) in writing on the date thereofAcquisition Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Delayed Draw Term A Loans and Term B Loans shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2):
(a) The Execution Date shall have occurred.
(b) Payment of all fees, interest and other amounts due and payable as of the Acquisition Closing Date from the Company and its Subsidiaries to the Arrangers, Administrative Agent and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one Business Day prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed).
(c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on the Acquisition Closing Date, in accordance with the Offer Documentation and no amendments, consents or waivers to or of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to the Lenders or the Arrangers shall have been made without the consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company), it being understood that any amendments, consents or waivers in respect of the Key Offer Terms or the provisions of the Business Combination Agreement limiting recourse against financing sources shall be material and adverse to the Lenders and Arrangers. The Non-Tender Documents shall be effective.
(i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not to be unreasonably withheld, delayed or conditioned) prior to submission to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (x) and (ii) the Unconditional Date shall have occurred.
(d) As of the Acquisition Closing Date, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing or would result from the from the extensions of credit hereunder on the Acquisition Closing Date.
(e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding other than (i) the Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the New Senior Unsecured Notes, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
(f) The Administrative Agent shall have received (x) a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c), (d) and (e).
(g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 with respect to the Advances being made on the Acquisition Closing Date. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders and the Term B Lenders that the conditions in this Section 4.3 have been satisfied (or waived) in writing on the date thereof, and such notice shall be conclusive and binding.,
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Acquisition Closing Date. The respective obligations of the Delayed Draw Term A Lenders and the Term B Lenders to make Delayed Draw Term A Loans and Term B Loans shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2):
(a) The Execution Date shall have occurred.
(b) Payment of all fees, interest and other amounts due and payable as of the Acquisition Closing Date from the Company and its Subsidiaries to the Arrangers, Administrative Agent and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least one Business Day prior to the Acquisition Closing Date (provided that such applicable payments may be made by net rather than gross proceeds of Loans as agreed).
(c) (x) The terms of the Offer Documentation, to the extent material to the interest of the Lenders, shall be consistent with the terms of the Business Combination Agreement and shall in any event, contain the Key Offer Terms unless consented to in writing by the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company). The Acquisition shall have been consummated, or will be consummated substantially concurrently with the funding of the Advances on the Acquisition Closing Date, in accordance with the Offer Documentation and no amendments, consents or waivers to or of the Acquisition Documentation and/or Non-Tender Documents that are materially adverse to the Lenders or the Arrangers shall have been made without the consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned, it being agreed such consent shall be deemed given if the Arrangers fail to respond within 2 Business Days after written notice from the Company), it being understood that any amendments, consents or waivers in respect of the Key Offer Terms or the provisions of the Business 509265-1946-Active.21307007.121307007.7 Combination Agreement limiting recourse against financing sources shall be material and adverse to the Lenders and Arrangers. The Non-Tender Documents shall be effective.
(i) The Administrative Agent shall have received (x) a copy of the draft Offer Documentation at least 3 Business Days (or such shorter period of time as the Arrangers agree, such agreement not to be unreasonably withheld, delayed or conditioned) prior to submission to the BaFin and (y) (A) copies of any amendments, supplements or modifications to the Business Combination Agreement and (B) copies of any amendments, supplements or modifications to, the Offer Documentation since the drafts thereof referred to in clause (x) and (ii) the Unconditional Date shall have occurred.
(d) As of the Acquisition Closing Date, the Certain Funds Representations shall be true and correct in all material respects (or, if qualified by materiality, in all respects) and no Certain Funds Event of Default shall have occurred and be continuing or would result from the from the extensions of credit hereunder on the Acquisition Closing Date.
(e) The Existing Company Debt Refinancing shall have occurred or shall occur substantially concurrently with the funding of the Advances on the Acquisition Closing Date and the Company and its Subsidiaries (including the Target and its Subsidiaries) shall have no material Indebtedness for borrowed money outstanding other than (i) the Credit Facilities (or in lieu of the Replacement Facilities, the Existing Loan Agreement or new backstop facilities not in excess of $750 million in aggregate amount), (ii) the New Senior Unsecured Notes, (iii) ordinary course deferred purchase price obligations, ordinary course working capital facilities, ordinary course cash management, ordinary course capital leases, ordinary course letters of credit, ordinary course purchase money and ordinary course equipment financings and ordinary course foreign subsidiary credit facilities (in the case of such ordinary course foreign subsidiary credit facilities, any replacements, extensions and renewals thereof not materially in excess of the amounts (inclusive of unfunded commitments) as of the date hereof), (iv) indebtedness of the Target and its Subsidiaries permitted to survive the Acquisition under the Business Combination Agreement and the Offer Documentation and (v) additional indebtedness as consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed).
(f) The Administrative Agent shall have received (x) a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the Transactions contemplated hereby to be consummated on the Acquisition Closing Date and (y) a certificate of an Authorized Officer of the Company certifying as to the matters set forth in Sections 4.3(c), (d) and (e).
(g) The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 with respect to the Advances being made on the Acquisition Closing Date. The Administrative Agent shall notify the Company, the Delayed Draw Term A Lenders and the Term B Lenders that the conditions in this Section 4.3 have been satisfied (or waived) in writing on the date thereof, and such notice shall be conclusive and binding.. 509265-1946-Active.21307007.121307007.7
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