Certain Funds. (a) Subject to Section 4.01 and notwithstanding the conditions of Section 4.02 and any other provision of any Loan Document to the contrary, during the Certain Funds Period, each Lender will only be obliged to make its initial Credit Extension hereunder if:
(i) no Certain Funds Default is continuing or would result from the making of the Loans;
(ii) all Certain Funds Representations of the Borrower are true in all respects or in the case of such representations and warranties which are not otherwise subject to a materiality threshold or qualification in accordance with its terms, are correct in all material respects; and
(iii) it is not unlawful for a Lender to perform any of its obligations under this Agreement.
(b) During the Certain Funds Period (save in circumstances where, pursuant to Section 4.03(a) above, a Lender is not obliged to make its initial Credit Extension), none of the Lenders shall be entitled to:
(i) cancel any of its Commitments hereunder to the extent to do so would prevent or limit the making of any Loans during the Certain Funds Period;
(ii) rescind, terminate or cancel this Agreement or any of the Commitments hereunder or exercise any similar right or remedy or make or enforce any claim under or in respect of the Loan Documents it may have to the extent to do so would prevent or limit the making of making of any Loans during the Certain Funds Period;
(iii) refuse to participate in the making of any Loans during the Certain Funds Period;
(iv) exercise any right of set-off or counterclaim or similar right or remedy which it may exercise in respect of a Loan to the extent to do so would prevent or limit the making of any Loans during the Certain Funds Period; or
(v) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of any Loans during the Certain Funds Period; provided that immediately upon the end of the Certain Funds Period subject to the express provisions of the Loan Documents all rights, remedies and entitlements shall be available to the Administrative Agent or Lenders notwithstanding that such rights, remedies and entitlements may not have been used or been available for use during the Certain Funds Period.
Certain Funds. 5.1 The Commitments in respect of the Facility are made on a certain funds basis, as set out in the Term Sheet, during the Certain Funds Period. Accordingly, and notwithstanding anything to the contrary herein or in any Underwriting Document, during the Certain Funds Period, the only conditions to utilisation of the Commitments of the Underwriters in respect of the Facility are as expressly set out in paragraph 4 (Underwriting Conditions) of this Commitment Letter and Schedule 3 (Conditions Precedent) to the Term Sheet.
5.2 Each of the Mandated Lead Arrangers and the Underwriters confirms that:
(a) its Commitments and the Facility have been approved by its credit committees and all other relevant internal bodies of it, and it confirms that it has completed all due diligence required by it;
(b) it has completed all internal approval processes and received all final internal approvals required to execute this Commitment Letter and (in the case of an Underwriter) provide its Commitments; and
(c) (based on the applicable laws and regulations applicable as at the date of this Commitment Letter) it has completed and is satisfied with the results of all client identification procedures that it is required to carry out in connection with making the Facility available in connection with the Acquisition in compliance with all applicable laws, regulations and internal requirements (including but not limited to all applicable money laundering rules and all “know your customer” requirements).
5.3 The Mandated Lead Arrangers and the Underwriters further confirm that the Acquisition Agreement, the Shareholder Terms, the Base Case Model, the Original Financial Statements, the Reports and the Structure Memorandum (each as at the date of this Commitment Letter) have been delivered to the Mandated Lead Arrangers and the Underwriters, and in the forms so delivered as at the Commitment Letter are (and subject to them remaining in substantially the same forms, or subject to them being delivered in final forms that are substantially the same as the forms so delivered as the Commitment Letter with such supplements or other modifications (which in the aggregate, do not materially and adversely affect the interests of the Mandated Lead Arrangers and the Underwriters), will be) acceptable to the Mandated Lead Arrangers and the Underwriters for the purposes of satisfying any of the conditions precedent in Schedule 3 (Conditions Precedent) to the Term Sheet which corresponds to that d...
Certain Funds. To ensure that Bidco has resources available to fulfil its obligations under the Offer, the Lenders agree that (without prejudice to Clause 24.17 (Certain Funds Period)) in relation to any Loan requested during the Certain Funds Period to be applied for the purposes referred to in Clause 3.1(a)(i)-(vi) (Purpose):
(a) paragraph (i) of Clause 4.2 (Further conditions precedent) shall only be applicable to the extent that a Certain Funds Event of Default has occurred which is continuing; and
(b) paragraph (ii) of Clause 4.2 (Further conditions precedent) shall only be applicable to the Certain Funds Repeated Representations.
Certain Funds. To ensure that Bidco has resources available to fulfil its obligations under the Offer, during the Certain Funds Period (notwithstanding any provision in this Agreement to the contrary except for Clause 8.1 (Illegality)) unless a Certain Funds Event of Default has occurred which is continuing, none of the Finance Parties shall be entitled to: LD857960/50
(a) cancel any of its Commitments;
(b) rescind, terminate or cancel this Agreement or any of the Facilities;
(c) refuse to participate in the making or issuing of any Loan; or
Certain Funds. During the Certain Funds Period only unless a Certain Funds Default is continuing or would result from the proposed Loan, neither the Facility Agent nor any of the Lenders shall:
(a) invoke any condition set out in paragraphs (a) or (b) of Clause 4.2 (Further conditions precedent) as a ground for refusing to make any Loan solely for purposes specified in paragraph (a) of Clause 3.1 (Purpose) (an “Offer Loan”) to the extent of its available Commitment in respect of any Facility;
(b) exercise any right, power or discretion to terminate or cancel the obligation to make any Offer Loan, other than under Clause 7.1 (Mandatory prepayment and cancellation - illegality) or Clause 7.6 (Mandatory cancellation);
(c) have or exercise any right of rescission or similar right or remedy which it or they may have in respect of this Agreement in respect of any Offer Loan;
(d) take any step under Clause 18.9 (Acceleration) in respect of any Offer Loan or that part of the Commitments which may be used by way of Offer Loan; or
(e) exercise any right of set-off or counterclaim in respect of any Offer Loan. However, as soon as the Availability Period ends, all those rights, remedies and entitlements shall be available even though they have not been exercised or available during the Availability Period.
Certain Funds. Notwithstanding anything to the contrary in this Section 2.4 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Facility are intended to be applied to finance a Permitted Acquisition or other Investment permitted hereunder and the lenders providing such Incremental Term Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
Certain Funds. (a) Notwithstanding any term of this Agreement, during the Availability Period for a Loan and in respect of any Credit for the purposes set out in paragraphs (a)-(c) (inclusive) of Clause 3.1 (Loan proceeds) no Lender is entitled to:
(i) refuse to participate in or make available any such Credit;
(ii) cancel its Commitment;
(iii) exercise any right of rescission or similar right or remedy which it may have in relation to any such Credit; or
(iv) accelerate or cause repayment of any such Credit, except as provided below in this Subclause.
(b) Paragraph (a) does not apply if the entitlement arises because:
(i) the Obligors’ Agent has not delivered or procured the delivery of all of the documents required under Clause 4.2 (Conditions precedent to first utilisation of the Facility) and the delivery of any such documents has not been waived by the Facility Agent;
(ii) a Major Representation is not correct or will not be correct immediately after any such Credit is made;
(iii) a Major Default is outstanding or will result from the making of any such Credit; or
(iv) it is unlawful for the Lender to perform any of its obligations under the Finance Documents.
(c) Nothing in this Subclause will affect the rights of any Finance Party in respect of any outstanding Default upon expiry of the Availability Period in respect of a Loan, irrespective of whether that Default occurred during the Availability Period in respect of a Loan or not.
Certain Funds. To ensure that Bidco has resources available to fulfil its obligations under the Offer, during the Certain Funds Period (notwithstanding any provision in this Agreement to the contrary except for Clause 9.1 (Illegality)) unless a Certain Funds Event of Default has occurred which is continuing, none of the Finance Parties shall be entitled to:
(a) cancel any of its Commitments;
(b) rescind, terminate or cancel this Agreement or any of the Facilities;
(c) refuse to participate in the making or issuing of any Loan; or
(d) exercise any right of set-off or counterclaim in respect of any Loan, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or been available for use during the Certain Funds Period. 65 SECTION 9 CHANGES TO PARTIES
Certain Funds. (a) Except as provided in paragraph (b) below and provided that paragraph (c) below has been complied with and notwithstanding any other term of this Agreement or any other PIK Finance Document, during the Certain Funds Period, the Finance Parties are not permitted or entitled to:
(i) refuse or fail to make available or participate in any Loan;
(ii) cancel any Commitment;
(iii) exercise any right of rescission, termination, or similar right or remedy (whether under this Agreement or under any applicable law) or any other right of enforcement which it may have in relation to any Loan or Commitment;
(iv) accelerate, make demand or cause or require repayment or prepayment of any Loan or take any other step under Section 6.02 of Schedule 9 (Acceleration);
(v) invoke any condition set out in Clause 4.1(b); or
(vi) exercise any right of set-off or counterclaim in respect of any Loan or the proceeds thereof.
(b) Paragraph (a) above does not apply if the entitlement arises because:
(i) the Company has not delivered on or before the Utilisation Date all of the documents and evidence required under Clause 4.1 (Conditions precedent) (unless the delivery of any condition precedent has been waived in accordance with this Agreement);
(ii) the Company has not delivered a Utilisation Request in accordance with Clause 5.1 (Delivery of a Utilisation Request);
(iii) the Offer has terminated or (unless the same is mandatorily imposed by the Danish FSA, or the Copenhagen Stock Exchange or other relevant regulatory body) an amendment or waiver of any of the material terms of the Offer (other than the extension of the Offer period or a reduction of the required level of acceptances to the Offer to an amount equal to or greater than 85 per cent.) has been made by any member of the Group (or any person on their behalf) without the consent of the Arrangers (acting reasonably) where such amendment or waiver is reasonably likely to affect materially and adversely the interests of the Lenders save that it is agreed that, notwithstanding any imposition as aforesaid, or not, any amendment or waiver that has the effect of reducing the level of acceptances to the Offer to an amount less than 85 per cent. is material and, if such an amendment or waiver was implemented or was imposed, it would be reasonably likely to affect materially and adversely the interest of the Lenders and the provisions of paragraph (a) are not applicable unless the Arrangers otherwise agree; or
(iv) in respect of a...
Certain Funds. During the Certain Funds Period, and notwithstanding any provision of any Loan Document to the contrary, the Interim Loans shall be made notwithstanding the non-satisfaction of any conditions other than the conditions specified in Section 4.02 and Section 4.03. During the Certain Funds Period (other than as referred to above) no Lender shall be entitled to (nor shall any Lender be entitled to request the Administrative Agent to):
(a) cancel its Interim Loan Commitment;
(b) rescind, terminate or cancel this Agreement or any of the Interim Loan Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have;
(c) refuse to participate in the making of an Interim Loan;
(d) exercise any right of set-off or counterclaim in respect of an Interim Loan (other than set-off in respect of fees, costs and expenses as agreed in the funds flow document); or
(e) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document;
(f) provided that immediately upon the end of the Certain Funds Period, subject to the express provisions of the Loan Documents, all such rights, remedies and entitlements shall be available to the Administrative Agent or the Lenders notwithstanding that such rights, remedies and entitlements may not have been used or been available for use during the Certain Funds Period.
