Certain Funds Period. During the period from and including the date on which counterparts of this Agreement signed by the parties hereto (and counterparts to any other Loan Document entered into concurrently with the Agreement) are delivered to the Administrative Agent to and including the earlier to occur of (x) the Closing Date, after giving effect to the funding of Loans on such date and (y) the Termination Date (such period, the “Certain Funds Period”), and notwithstanding (i) that any representation made on such date or on the Effective Date or the Closing Date (excluding the Specified Representations and/or Alere Acquisition Agreement Representations given as a condition to the Closing Date) was incorrect, (ii) any failure by the Borrower to comply with the affirmative covenants, negative covenants and financial covenant, (iii) any provision to the contrary in any Loan Document or otherwise or (iv) that any condition to the occurrence of the Effective Date may subsequently be determined not to have been satisfied, neither the Administrative Agent nor any Lender shall be entitled to (1) cancel any of its Commitments hereunder, (2) rescind, terminate or cancel any Loan Document or exercise any right or remedy or make or enforce any claim under the Loan Documents or otherwise it may have to the extent to do so would prevent, limit or delay the making of its Loan, (3) refuse to participate in making its Loan on the Closing Date; provided that the applicable conditions precedent to the making of the Loan set forth in Section 3.02 have been satisfied, or (4) exercise any right of set-off or counterclaim in respect of its Loan to the extent to do so would prevent, limit or delay the making of its Loan. Notwithstanding anything to the contrary contained herein, (A) the rights and remedies of the Lenders and the Administrative Agent shall not be limited in the event that any applicable condition precedent set forth in Section 3.02 is not satisfied on the Closing Date and (B) immediately after the expiration of the Certain Funds Period, all of the rights, remedies and entitlements of the Administrative Agent and the Lenders shall be available notwithstanding that such rights were not available prior to such time as a result of the foregoing.
Certain Funds Period. During the Certain Funds Period, the obligation of each Lender to make the Initial Loans is subject to the satisfaction (or waiver pursuant to Section 10.01) of only the following conditions precedent:
(a) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(b) The Administrative Agent shall have received a certified copy of the Acquisition Documents corresponding in all material respects to the terms and conditions set out in the Press Release or Offer Press Release (as applicable), save to the extent otherwise required by the Takeover Panel;
(c) Delivery to the Administrative Agent of a certificate signed by a duly authorized officer of Borrower confirming, if the Scheme has not been switched to an Offer, the Scheme Effective Date shall have occurred and the Administrative Agent shall have received certified copies of (i) the Court Order, (ii) the shareholder resolutions referred to in and in the form set out in the Initial Scheme Document, and (iii) the confirmation-of-receipt stamp with respect to the registration of the Court Order from Companies House (or a copy of the cover letter from Target’s solicitors delivering the Court Order to Companies House for registration, with confirmation of receipt by Companies House affixed); if the Scheme has been switched to an Offer, the Offer Unconditional Date shall have occurred and, in either case, there shall not have been any material amendment, supplement or modification of the Acquisition Conditions Precedent, or waiver of the Acceptance Condition or the Anti-Trust Condition, not consented to by the Arrangers, other than (x) a waiver of the Acceptance Condition to permit the Offer to become unconditional with acceptance of Target Shares in an aggregate amount of not less than 75% of the Target Shares or (y) any amendments, supplements, modifications or waivers required by the Panel on Takeovers and Mergers, the High Court of England and Wales or any applicable Law.
(d) The Major Representations shall be true and correct in all material respects except, in the case of a Major Representation which is qualified as to “materiality” or “Material Adverse Effect”, in all respects.
(e) No breach of any Major Covenant has occurred and is continuing or would immediately result from the making of the Initial Loans.
(f) No Major Default has occurred and is continuing or would immediately result from the making of the Initial Loans.
(g) There shall not be in ...
Certain Funds Period. Notwithstanding any other term of this Agreement or any other Senior Finance Document, during the Certain Funds Period, unless a Certain Funds Default is continuing or would result from the proposed Loan, neither the Agent nor any of the Lenders shall:
(a) invoke any condition set out in Clause 4.2 (Further conditions precedent) as a ground for refusing to make any Utilisation or any utilisation of an Ancillary Facility during the Certain Funds Period solely for the purposes specified in sub-paragraphs (a)(i) and (ii) of Clause 3.1 (Purpose)
(a “ Scheme of Arrangement Utilisation”) to the extent of its Available Commitment in respect of the Term Facilities;
(b) exercise any right, power or discretion to terminate or cancel the obligation to make any Scheme of Arrangement Utilisation, other than under Clause 11.1 (Illegality) or Clause 11.3 (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 Scheme of Arrangement Utilisation;
(d) take any step under Clause 26.21 (Acceleration) in respect of any Scheme of Arrangement Utilisation or that part of the Commitments which may be used by way of Scheme of Arrangement Utilisation (including the enforcement of any Security Documents) so as to prevent or inhibit the payment of consideration in connection with the Scheme of Arrangement; or
(e) exercise any right of set-off or counterclaim in respect of any Scheme of Arrangement Utilisation. However, from and after termination of the Certain Funds Period, all those rights, remedies and entitlements shall be available even though they have not been exercised or available during the Certain Funds Period.
Certain Funds Period during the Certain Funds Period, at any time after the happening of a Major Default; or
Certain Funds Period. The date on which the applicable advance is made is within the Certain Funds Period;
Certain Funds Period. 3.6.1 Notwithstanding any other provision of this Agreement other than Clause 3.4.2, during the Availability Period:
(a) the relevant Borrowers shall be entitled to utilise the Parent Series 1 Acquisition Term Facility Loans, Parent Series 2 Acquisition Term Facility Loans, Canada Holdco Series 1 Acquisition Term Facility Loans and Canada Holdco Series 2 Acquisition Term Facility Loans and the Parent Series 1 Refinancing Term Facility Loans and the Parent Series 2 Refinancing Term Facility Loans and the Lenders shall be obliged make the Parent Series 1 Acquisition Term Facility Loans, Parent Series 2 Acquisition Term Facility Loans, Canada Holdco Series 1 Acquisition Term Facility Loans and Canada Holdco Series 2 Acquisition Term Facility Loans and the Parent Series 1 Refinancing Term Facility Loans and the Parent Series 2 Refinancing Term Facility Loans available despite the occurrence or existence of any Event of Default (other than prior to the Drawdown Date a Primary Default) or a breach of warranty (other than prior to the Drawdown Date a Primary Warranty) in order (and only to the extent) that US Newco is able to comply with its obligations under the Tender Offer and Merger Agreement to pay the consideration payable in relation to the acquisition of the Target Stock and to refinance the Existing Inveresk Facilities; and
(b) no Finance Party will have or seek to exercise any right of rescission or other remedy (whether under the Finance Documents or the general law) with a view to refusing to make any amount available under the facilities referred to in Clause 3.6.1(a).
3.6.2 The Borrowers acknowledge that the terms of Clause 3.6.1 above do not amount to a waiver of any Event of Default or Default and accordingly shall not prejudice any rights of the Agent and/or any of the other Finance Parties to exercise any rights under this Agreement or any rights of recission or other remedies in respect of any such Event of Default or Default or such other rights or remedies on the expiry of the Availability Period.
3.6.3 For the purposes of this Clause 3.6 and Clause 23.25 only, Clause 23.7 shall be amended so as to appear in the following form: "Any distress, execution, arrestment, attachment, inhibition or other diligence or legal process affects any asset of any Material Company and such circumstances in the reasonable opinion of the Lenders could have a Material Adverse Effect; or"
3.6.4 For the purposes of this Clause 3.6 and Clause 23.25 only, Clause 23....
Certain Funds Period. During the Certain Funds Period unless a Certain Funds Default (which is also an Event of Default) has occurred and is continuing, none of the Finance Parties shall be entitled to:
(a) cancel any of its Commitments under Facility A1 and/or Facility A2;
(b) rescind, terminate or cancel this Agreement or Facility A1 and/or Facility A2;
(c) require repayment of any Facility A1 Loan and/or Facility A2 Loan;
(d) refuse to participate in the making of any Utilisation under Facility A1 and/or Facility A2;
(e) exercise any right of set off or counterclaim in respect of any Utilisation under Facility A1 and/or Facility A2, 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.
Certain Funds Period. During the Certain Funds Period, and not withstanding any provisions of any Loan Document to the contrary, each Purpose Borrowing shall be made notwithstanding non-satisfaction of any conditions specified in Section 4.01 and/or 4.02, but shall be subject to the satisfaction of the conditions specified in Sections 4.01(a), 4.02(a), (b), (d) (other than (d)(iv)), (g), (n) and the following conditions:
(a) Holdings or the Term Borrower shall not have cancelled or rescinded the Facilities;
(b) the Offer shall have been accepted with respect to at least 75% of the registered ordinary shares of the Company outstanding at the end of the acceptance period under the Offer, excluding treasury shares; and
(c) at the time of and immediately after giving effect to such Borrowing or such issuance of a Letter of Credit, as applicable, (i) no Major Default shall have occurred and be continuing and (ii) the representations and warranties contained in Sections 3.01(a), (b) and (d) and 3.02 with respect to Holdings, Parent and/or Bidco and 3.10 shall be true and correct in all material respects. For the avoidance of doubt, during the Certain Funds Period (other than as referred to above) no Lender shall (a) exercise any right to terminate the obligation to make any Loan, (b) exercise any right of rescission in respect of this Agreement or in respect of a Loan or (c) exercise any right of acceleration, termination, cancellation or set-off in respect of any Loan (other than set-off in respect of fees, costs and expenses as agreed in the funds flow document).
Certain Funds Period. To assist the Group to have sufficient funds available to fulfil its obligations in connection with the Acquisition, the Banks shall not on or prior to the Merger Completion Date decline to permit any Facility to be utilised hereunder as a consequence of:
(a) the occurrence of any Potential Event of Default or Event of Default under Clause 11.1(b), (e)(ii), (m), (p), (r) or (to the extent referable to a representation and warranty suspended by this Clause 3.4) (d);
(b) the occurrence of any Potential Event of Default under Clause 11.1(g) or (to the extent referable to Clause 10.2(h)) (c);
(c) any misrepresentation under Clause 9.1(h), (i), (j), (k)(i) or (l), provided that this clause 3.4 shall not prevent the Agent or any of the Banks exercising any of their respective rights and remedies under this Agreement (including, without limitation, under clause 11.1) after the earlier of (i) 1st August 1998 and (ii) the Merger Completion Date and notwithstanding any such utilisation.
Certain Funds Period. For the avoidance of doubt, during the Certain Funds Period (other than as referred to above) no Lender shall (a) exercise any right to terminate the obligation to make any Loan, (b) exercise any right of rescission in respect of this Agreement or in respect of a Loan or (c) exercise any right of acceleration, termination, cancellation or set-off in respect of any Loan (other than set-off in respect of fees, costs and expenses as agreed in the funds flow document).
