Conditions to Initial Borrowing. The obligation of each Lender to make the initial Term Loans is subject to the following conditions precedent: (a) The Administrative Agent shall have received a Term Loan Notice in accordance with the requirements hereof. (b) The Target Acquisition shall have been consummated substantially concurrently with the initial Borrowing hereunder, in all material respects in accordance with the Target Acquisition Agreement and no provision of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse to the Lenders or the Arranger (in their respective capacities as such) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregate. (c) The Arranger shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements, (iii) the Target Financial Statements and (iv) the Pro Forma Summary. (d) (i) The Target Acquisition Agreement Representations shall be true and correct as of the date of the initial Borrowing hereunder and (ii) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of the initial Borrowing hereunder. (e) No Target Material Adverse Effect on the Target shall have occurred since the date of the Target Acquisition Agreement that is continuing. (f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) and Section 4.02(d)(ii) have been satisfied. (g) A certificate signed by the chief financial officer of the Borrower, substantially in the form of Exhibit G, attesting to the solvency (on a consolidated basis) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the Transactions. (h) The Availability Period shall not have expired. (i) The Lenders, the Administrative Agent and the Arranger shall have received all fees and all expenses required to be paid by the Borrower on or before the date of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial Borrowing.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation obligations of each Lender the Lenders to make Loans hereunder and of the initial Term Loans is Issuing Banks to issue Letters of Credit hereunder are subject to the satisfaction of the following conditions precedent:(or waiver in accordance with Section 9.08(b)):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a Term Loan Notice counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed signature pages or email transmissions of signed signature pages in accordance with the requirements hereofPDF format) that such party has signed a counterpart of this Agreement.
(b) The Target Acquisition Agent shall have been consummated substantially concurrently with received favorable written opinions (addressed to the initial Borrowing hereunderAgent, in all material respects in accordance with the Target Acquisition Agreement Issuing Banks and no provision the Lenders and dated the Closing Date) of the Target Acquisition Agreement shall have been waivedXxxxxx, amendedXxxxx & Xxxxxxx LLP, supplemented or otherwise modified by New York counsel to the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse covering such matters relating to the Lenders Borrower, this Agreement or the Arranger (in their respective capacities Transactions as such) without the Arranger’s prior written consent (Agent or Required Lenders shall reasonably request. The Borrower hereby instructs its counsel to deliver such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect opinion to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregateAgent.
(c) The Arranger Agent shall have received (i) such documents and certificates as the Audited Financial StatementsAgent or its counsel shall reasonably have requested relating to the organization, (ii) existence and good standing of the Unaudited Financial StatementsBorrower, (iii) the Target Financial Statements authorization of the Transactions and (iv) any other legal matters relating to the Pro Forma SummaryBorrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) (i) The Target Acquisition Agreement Representations Agent shall be true have received a certificate, dated the Closing Date and correct signed by the president or chief financial officer of the Borrower, confirming compliance, as of the date of Closing Date, with the initial Borrowing hereunder conditions set forth in paragraphs (a) and (iib) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of the initial Borrowing hereunder.Section 4.02
(e) No Target Material Adverse Effect on the Target The Agent shall have occurred since received a certificate, dated the date of the Target Acquisition Agreement that is continuing.
(f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) Closing Date and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer of the Borrower, substantially in the form of Exhibit G, attesting as to the solvency (of the Borrower on a consolidated basis) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the TransactionsTransactions to occur on or about the Closing Date, including the initial Borrowings hereunder, in form and substance reasonably satisfactory to the Agent.
(hf) The Availability Period Immediately after giving effect to the Transactions, the Borrower and the Covered Subsidiaries shall not have expired.
outstanding no Indebtedness other than (i) The Lenders, the Administrative Agent Indebtedness hereunder and the Arranger shall have received all fees and all expenses required (ii) Indebtedness referred to be paid by the Borrower on or before the date of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial Borrowingin Section 6.01(c).
Appears in 1 contract
Samples: Revolving Credit Agreement (BrightSphere Investment Group Inc.)
Conditions to Initial Borrowing. The obligation of each Lender the Lenders to make the initial Term Loans hereunder on the Closing Date is subject to the satisfaction of such of the following conditions precedentin all material respects on or prior to the Closing Date as shall not have been expressly waived in accordance with Section 9.01, with each delivery item set forth below in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(a) The Administrative Agent shall have received a Term Loan Notice in accordance with multiple counterparts hereof signed by each of the requirements hereof.parties hereto; LEGAL02/34647694v6
(b) The Target Acquisition Administrative Agent shall have been consummated substantially concurrently with received a duly executed Note for the initial Borrowing hereunder, in all material respects in accordance with the Target Acquisition Agreement and no provision account of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse to the Lenders or the Arranger (in their respective capacities as such) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, Lender that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregate.requests a Note;
(c) The Arranger Administrative Agent and each Lender shall have received (i) a legal opinion of the Audited Financial Statementsgeneral counsel of the Borrower, in form and substance satisfactory to the Administrative Agent and the Lenders and (ii) a legal opinion of Xxxxxx & Bird, LLP, counsel to the Unaudited Financial StatementsAdministrative Agent, (iii) addressed to the Target Financial Statements Administrative Agent and (iv) the Pro Forma Summary.Lenders, addressing the enforceability of the Loan Documents;
(d) The Administrative Agent shall have received all documents it may reasonably request relating to the existence of the Borrower, the corporate authority for and the validity of each of the Credit Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent;
(ie) The Target Acquisition Agreement Representations Administrative Agent shall have received a Loan Notice requesting the Loans;
(f) No Default or Event of Default shall have occurred and be true and correct as continuing immediately before the making of the date Loans and no Default or Event of Default shall exist immediately thereafter;
(g) The representations and warranties of the initial Borrowing hereunder and (ii) Borrower made in or pursuant to the Specified Representations Credit Documents to which it is a party shall be true and correct in all material respects (or in all respects if the case of a representation or warranty qualified by materiality, true and correct in all respects) as of the date of the initial Borrowing hereunder.making of the Loans;
(eh) No Target Material Adverse Effect on the Target The Administrative Agent shall have received a certificate of the Borrower, signed on behalf of Borrower by the Borrower’s chief executive officer or chief financial officer, confirming to the knowledge of such officer that as of such date (i) the representations and warranties in Article V hereof are true and correct in all material respects (or in the case of a representation or warranty qualified by materiality, true and correct in all respects), and (ii) no Default or Event of Default has occurred and is continuing;
(i) The Administrative Agent and the Lenders shall have been paid all fees due and payable in connection herewith (including fees and expenses of counsel); LEGAL02/34647694v6
(j) Evidence that Section 6.22 of the Existing Credit Agreement has been amended to permit the existence of Section 6.07 of this Credit Agreement;
(k) The Administrative Agent shall have received a Disbursement Instruction Agreement executed by the Borrower;
(l) The Administrative Agent shall have received a Compliance Certificate calculated on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2013; and
(m) there shall not have occurred (A) any event, condition, situation or status since the date of the Target Acquisition Agreement that is continuing.
(f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer of the Borrower, substantially information contained in the form of Exhibit Gfinancial and business projections, attesting to the solvency (on a consolidated basis) of budgets, pro forma data and forecasts concerning the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect Subsidiaries delivered to the Transactions.
(h) The Availability Period shall not have expired.
(i) The Lenders, the Administrative Agent and the Arranger Lenders prior to the date hereof that has had or could reasonably be expected to result in a Material Adverse Effect or (B) a downgrade of any Debt Rating of the Borrower by two or more notches since the date of the Fee Letter;
(n) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (A) result in a Material Adverse Effect or (B) restrain or enjoin, or otherwise materially and adversely affect, the ability of the Borrower or any other Credit Party to fulfill its obligations under the Credit Documents to which it is a party;
(o) the Borrower and its Subsidiaries shall have received all fees approvals, consents and waivers, and shall have made or given all expenses necessary filings and notices as shall be required to be paid consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (A) any applicable Law or (B) any agreement, document or instrument to which any Credit Party is a party or by which any of them or their respective properties is bound;
(p) the Borrower and each other Credit Party shall have provided all information requested by the Borrower on Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and LEGAL02/34647694v6
(q) there shall not have occurred or before exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Credit Documents. The certificates and opinions referred to in this Section shall be dated the date hereof. Without limiting the generality of the initial Borrowingprovisions of the last paragraph of Section 8.03, and for which invoices purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Credit Agreement shall be deemed to have been presented at least two (2) Business Days 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 the Administrative Agent shall have received notice from such Lender prior to the date of the initial Borrowingproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation obligations of each Lender the Lenders to make Loans hereunder and of the initial Term Loans is Issuing Banks to issue Letters of Credit hereunder are subject to the satisfaction of the following conditions precedent:(or waiver in accordance with Section 9.08(b)):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a Term Loan Notice counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed signature pages or email transmissions of signed signature pages in accordance with the requirements hereofPDF format) that such party has signed a counterpart of this Agreement.
(b) The Target Acquisition Agent shall have been consummated substantially concurrently with received favorable written opinions (addressed to the initial Borrowing hereunderAgent and the Lenders and dated the Closing Date) of Xxxxxxx XxXxxxxxx LLP, in all material respects in accordance with the Target Acquisition Agreement and no provision of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by New York counsel to the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse English counsel to the Lenders Borrower, substantially in the forms set forth in Exhibit C hereto, and covering such other matters relating to the Borrower, this Agreement or the Arranger (in their respective capacities Transactions as such) without the Arranger’s prior written consent (Agent or Required Lenders shall reasonably request. The Borrower hereby instructs its counsel to deliver such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect opinion to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregateAgent.
(c) The Arranger Agent shall have received (i) such documents and certificates as the Audited Financial StatementsAgent or its counsel shall reasonably have requested relating to the organization, (ii) existence and good standing of the Unaudited Financial StatementsBorrower, (iii) the Target Financial Statements authorization of the Transactions and (iv) any other legal matters relating to the Pro Forma SummaryBorrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) The Reorganization and the IPO shall have been consummated.
(e) The Agent shall have received a certificate, dated the Closing Date and signed by the president or chief financial officer of the Borrower, confirming (i) The Target Acquisition Agreement Representations shall be true and correct compliance, as of the date Closing Date, with the conditions set forth in paragraphs (a) and (b) of the initial Borrowing hereunder Section 4.02 and (ii) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as consummation of the date Reorganization, as contemplated by and described in the Registration Statement, and of the initial Borrowing hereunder.
(e) No Target Material Adverse Effect on the Target shall have occurred since the date of the Target Acquisition Agreement that is continuingIPO.
(f) A certificate signed by The Agent shall have received a Responsible Officer of certificate, dated the Borrower certifying that the conditions specified in Section 4.02(b) Closing Date and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer of the Borrower, substantially in the form of Exhibit G, attesting as to the solvency (of the Borrower on a consolidated basis) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the TransactionsTransactions to occur on or about the Closing Date, including the initial Borrowings hereunder and the payment of the OMGUK Dividend, in form and substance reasonably satisfactory to the Agent.
(g) Immediately after giving effect to the transactions contemplated hereby (including those contemplated by clause (h) below), the Borrower and the Covered Subsidiaries shall have outstanding no Indebtedness other than (i) Indebtedness hereunder, (ii) Indebtedness referred to in Section 6.01(c), and (iii) Indebtedness owed by the Borrower to OMGUK under the Note, provided that such Indebtedness is subordinated in writing in right of payment to the Obligations pursuant to an Affiliate Subordination Agreement.
(h) The Availability Period All Indebtedness owed by the Borrower to OMGUK under the OMGUK Dividend Note shall not have expiredbeen, or substantially simultaneously with the initial Borrowing hereunder shall be, repaid with the proceeds of such Borrowing and/or other available funds, and the Agent shall be reasonably satisfied with the arrangements for ensuring such repayment.
(i) The Lenders, the Administrative Agent and the Arranger shall have received all fees and other amounts due and payable on or prior to the Closing Date hereof, including, to the extent invoiced, fees and cost reimbursements of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Borrower shall have paid all fees and other amounts payable on or before the date of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior Closing Date pursuant to the date of Fee Letters.
(j) The Lenders shall have received all documentation and other information about the initial BorrowingBorrower and its Affiliates required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
Appears in 1 contract
Samples: Revolving Credit Agreement (OM Asset Management PLC)
Conditions to Initial Borrowing. The obligation obligations of each Lender the Lenders to make Loans hereunder and of the initial Term Loans is Issuing Banks to issue Letters of Credit hereunder are subject to the satisfaction of the following conditions precedent:(or waiver in accordance with Section 9.08(b)):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a Term Loan Notice counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed signature pages or email transmissions of signed signature pages in accordance with the requirements hereofPDF format) that such party has signed a counterpart of this Agreement.
(b) The Target Acquisition Agent shall have been consummated substantially concurrently with received favorable written opinions (addressed to the initial Borrowing hereunderAgent and the Lenders and dated the Closing Date) of Xxxxxxx XxXxxxxxx LLP, in all material respects in accordance with the Target Acquisition Agreement and no provision of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by New York counsel to the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse English counsel to the Lenders Borrower, substantially in the forms set forth in Exhibit C hereto, and covering such other matters relating to the Borrower, this Agreement or the Arranger (in their respective capacities Transactions as such) without the Arranger’s prior written consent (Agent or Required Lenders shall reasonably request. The Borrower hereby instructs its counsel to deliver such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect opinion to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregateAgent.
(c) The Arranger Agent shall have received (i) such documents and certificates as the Audited Financial StatementsAgent or its counsel shall reasonably have requested relating to the organization, (ii) existence and good standing of the Unaudited Financial StatementsBorrower, (iii) the Target Financial Statements authorization of the Transactions and (iv) any other legal matters relating to the Pro Forma SummaryBorrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Agent and its counsel.
(d) The Reorganization and the IPO shall have been consummated.
(e) The Agent shall have received a certificate, dated the Closing Date and signed by the president or chief financial officer of the Borrower, confirming (i) The Target Acquisition Agreement Representations shall be true and correct compliance, as of the date Closing Date, with the conditions set forth in paragraphs (a) and (b) of the initial Borrowing hereunder Section 4.02 and (ii) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as consummation of the date Reorganization, as contemplated by and described in the Registration Statement, and of the initial Borrowing hereunder.
(e) No Target Material Adverse Effect on the Target shall have occurred since the date of the Target Acquisition Agreement that is continuingIPO.
(f) A certificate signed by The Agent shall have received a Responsible Officer of certificate, dated the Borrower certifying that the conditions specified in Section 4.02(b) Closing Date and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer of the Borrower, substantially in the form of Exhibit G, attesting as to the solvency (of the Borrower on a consolidated basis) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the Transactions.
(h) The Availability Period shall not have expired.
(i) The LendersTransactions to occur on or about the Closing Date, including the Administrative Agent initial Borrowings hereunder and the Arranger shall have received all fees and all expenses required to be paid by the Borrower on or before the date payment of the initial BorrowingOMGUK Dividend, in form and for which invoices have been presented at least two (2) Business Days prior substance reasonably satisfactory to the date of the initial BorrowingAgent.
Appears in 1 contract
Samples: Revolving Credit Agreement (OM Asset Management PLC)
Conditions to Initial Borrowing. The obligation obligations of each Lender the Lenders to make Loans and of the initial Term Loans is subject Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement (a “Lender Addendum”) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed Lender Addendum) that such party has signed a counterpart of this Agreement. 4159-0000-0000.0
(b) The U.S. Guarantee Agreement shall have been duly executed by STX and each other Guarantor as of the Effective Date and delivered to the Administrative Agent.
(c) The Administrative Agent shall have received a Term Loan Notice in accordance with the requirements hereof.
favorable written opinion (b) The Target Acquisition shall have been consummated substantially concurrently with the initial Borrowing hereunder, in all material respects in accordance with the Target Acquisition Agreement and no provision of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse addressed to the Administrative Agent and the Lenders or and dated the Arranger (in their respective capacities as suchEffective Date) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof)Simpxxx Xxxxxxx & Xartxxxx XXX, if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger New York counsel for STX and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregate.
(c) The Arranger shall have received (i) the Audited Financial Statementscertain other Loan Parties, (ii) the Unaudited Financial StatementsArthxx Xxx, Xxish counsel to STX, (iii) the Target Financial Statements General Counsel of STX, and (iv) Maplxx xxx Caldxx (Xxyman) LLP, Cayman Islands counsel for the Pro Forma SummaryBorrower and certain other Loan Parties, in each case in form and substance satisfactory to the Administrative Agent. Each Loan Party hereby requests such counsel to deliver such opinions.
(d) (i) The Target Acquisition Agreement Representations Administrative Agent shall be true have received such documents and correct certificates as the Administrative Agent or its counsel may reasonably request relating to the organization or incorporation, existence and good standing of each Loan Party, the authorization of the date execution, delivery and performance of the initial Borrowing hereunder Loan Documents by each Loan Party and (ii) any other legal matters relating to each Loan Party or the Specified Representations shall be true Loan Documents, all in form and correct in all material respects (or in all respects if qualified by materiality) as of substance reasonably satisfactory to the date of the initial Borrowing hereunderAdministrative Agent and its counsel.
(e) No Target Material Adverse Effect on the Target The Administrative Agent shall have occurred since received a certificate, dated the date of the Target Acquisition Agreement that is continuing.
(f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) Effective Date and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer President, a Vice President or a Financial Officer of the Borrower, substantially confirming compliance with the conditions set forth in the form of Exhibit G, attesting to the solvency clauses (on a consolidated basisa) and (b) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the TransactionsSection 4.02.
(h) The Availability Period shall not have expired.
(i) The Lenders, the Administrative Agent and the Arranger shall have received all fees and all expenses required to be paid by the Borrower on or before the date of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial Borrowing.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation effectiveness of each Lender this Agreement and the obligations of the Lenders to make the initial Term Loans is hereunder are subject to the satisfaction of the following conditions precedentconditions:
(a) The Administrative Agent (or its counsel) shall have received either (i) a Term Loan Notice counterpart of this Agreement signed on behalf of each party thereto, or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed signature pages or email transmissions of signed signature pages in accordance with the requirements hereofPDF format) that this Agreement has been signed on behalf of each party thereto.
(b) The Target Acquisition Guarantee Requirement shall have been consummated substantially concurrently with the initial Borrowing hereunder, in all material respects in accordance with the Target Acquisition Agreement and no provision of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse to the Lenders or the Arranger (in their respective capacities as such) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregatesatisfied.
(c) The Arranger Agent shall have received a favorable written opinion of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Audited Financial StatementsBorrower, to the effect and covering those matters set forth in Exhibit B-1 hereto, and (ii) Xxxxx X. Xxxxx, Esq., General Counsel of the Unaudited Financial StatementsBorrower, (iii) to the Target Financial Statements effect and (iv) covering those matters set forth in Exhibit B-2 hereto. The Borrower hereby instructs its counsel to deliver such opinions to the Pro Forma SummaryAgent.
(d) The Agent shall have received such documents and certificates as the Agent or its counsel shall reasonably have requested relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to such Loan Party, this Agreement or the Transactions, all in form and substance satisfactory to the Agent and its counsel.
(e) The Agent shall have received a certificate, dated the date hereof and signed by a Financial Officer of the Borrower, confirming that (i) The Target Acquisition Agreement Representations shall be true the representations and correct as of the date of the initial Borrowing hereunder and (ii) the Specified Representations shall be warranties set forth in Article III hereof are true and correct in all material respects (or in all respects if qualified by materiality) on and as of the date of Closing Date, after giving effect to the initial Borrowing hereunder.
(e) No Target Material Adverse Effect Borrowings to be made on the Target Closing Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were so true and correct on and as of such earlier date and (ii) at the time of such Borrowing and immediately after giving effect thereto, no Event of Default or Default shall have occurred since the date of the Target Acquisition Agreement that is and be continuing.
(f) A certificate signed by The Agent shall have received a Responsible Officer final copy of the Borrower certifying Unsecured Notes Documents and of the Confidential Memorandum, together with evidence that the conditions specified in Section 4.02(b) and Section 4.02(d)(ii) have private placement of Unsecured Notes has been satisfiedconsummated or is being consummated contemporaneously with the occurrence of the Closing Date.
(g) A certificate signed by The Borrower shall have applied, or shall apply substantially concurrently with the chief financial officer occurrence of the BorrowerClosing Date, substantially in the form Net Proceeds of Exhibit Gthe private placement of Unsecured Notes, attesting along with other available funds if necessary (including proceeds of Loans made hereunder), to the solvency (on a consolidated basis) prepayment of the Borrower term loans under the Amended and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis Restated Term Loan Agreement in full such that, after giving effect to such prepayment, the TransactionsBorrower shall have no outstanding loans under the Amended and Restated Term Loan Agreement.
(h) The Availability Period Agent shall not have expiredreceived all fees and other amounts due and payable on or prior to the date hereof, including, to the extent invoiced, fees and cost reimbursements payable pursuant to Section 9.05.
(i) The Lenders, the Administrative Agent and the Arranger Lenders shall have received all fees documentation and all expenses other information required to be paid by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Borrower on or before the date of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial BorrowingUSA PATRIOT Act.
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Samples: Revolving Credit Agreement (Artisan Partners Asset Management Inc.)
Conditions to Initial Borrowing. The occurrence of the Initial Availability Date and the obligation of each Lender the Lenders to make the initial Term Loans hereunder is subject to satisfaction of the following conditions precedent:
(a) The Closing Date shall have occurred.
(b) The Administrative Agent shall have received the Initial Borrowing Request at least 20 Business Days prior to the requested date of such initial Borrowing (or such date that is nearer to the date of the initial Borrowing as the Administrative Agent may agree to in its sole discretion).
(c) The Borrower shall have (i) fully cooperated with the Lenders in connection with the due diligence to be performed by the Lenders pursuant to clause (d) below and (ii) delivered all information and other documents reasonably requested by the Lenders in connection with such due diligence at least 10 Business Days prior to the proposed date of the initial Borrowing.
(d) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, reasonably satisfactory to the Lenders (including, without limitation, results evidencing pro forma compliance with all covenants contained in the Loan Documents), and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested.
(e) The Administrative Agent shall have received a Term Loan Notice in accordance with the requirements hereof.
(b) The Target Acquisition shall have been consummated substantially concurrently with the initial Borrowing hereunder, in all material respects in accordance with the Target Acquisition Agreement and no provision certificate of the Target Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified by the Borrower, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse to the Lenders or the Arranger (in their respective capacities as such) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger, and (ii) decreases in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregate.
(c) The Arranger shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements, (iii) the Target Financial Statements and (iv) the Pro Forma Summary.
(d) (i) The Target Acquisition Agreement Representations shall be true and correct as of the date of the initial Borrowing hereunder and (ii) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of the initial Borrowing hereunder.
(e) No Target Material Adverse Effect on the Target shall have occurred since the date of the Target Acquisition Agreement that is continuing.
(f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) and Section 4.02(d)(ii) have been satisfied.
(g) A certificate signed by the chief financial officer of the Borrower, substantially in the form of Exhibit G, attesting at least 10 Business Days prior to the solvency (on a consolidated basis) making of such Borrowing, in form and substance reasonably satisfactory to the Borrower Administrative Agent, certifying and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis attaching calculations demonstrating that after giving effect to the Transactions.
(h) The Availability Period shall not have expired.
(i) The Lendersuse of proceeds of such Borrowing, on a pro forma basis, the Administrative Agent and the Arranger Borrower shall have received all fees and all expenses required to be paid by the Borrower on or before the date in compliance with each of the initial Borrowing, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial Borrowingcovenants set forth in Section 7.11.
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Conditions to Initial Borrowing. The obligation obligations of each Lender the Lenders to make Loans and of the initial Term Loans is subject Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement (a “Lender Addendum”) signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed Lender Addendum) that such party has signed a counterpart of this Agreement.
(b) The U.S. Guarantee Agreement shall have been duly executed by STX and each other Guarantor as of the Effective Date and delivered to the Administrative Agent.
(c) The Administrative Agent shall have received a Term favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, New York counsel for STX and certain other Loan Notice Parties, (ii) Xxxxxx Xxx, Irish counsel to STX, (iii) General Counsel of STX, and (iv) Xxxxxx and Xxxxxx, Cayman Islands counsel for the Borrower and certain other Loan Parties, in accordance with each case in form and substance satisfactory to the requirements hereofAdministrative Agent. Each Loan Party hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization or incorporation, existence and good standing of each Loan Party, the authorization of the execution, delivery and performance of the Loan Documents by each Loan Party and any other legal matters relating to each Loan Party or the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in clauses (a) and (b) of Section 4.02.
(f) The Target Acquisition Administrative Agent shall have been consummated substantially received evidence reasonably satisfactory to it that (i) the Borrower has paid or, concurrently with the making of the initial Borrowing hereunderLoans under this Agreement will pay, in full all material respects in accordance with debt and accrued and unpaid fees, interest, and other amounts owing under the Target Acquisition Agreement and no provision Credit Agreement, dated as of the Target Acquisition Agreement shall have been waivedJanuary 18, 2011 (as amended, supplemented or otherwise modified by from time to time), among STX, the Borrower, the lenders party thereto and no consent or request by the Borrower or any of its Subsidiaries shall have been provided under the Target Acquisition Agreement, in each case, which is materially adverse to the Lenders or the Arranger (in their respective capacities as such) without the Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, that any waiver, amendment, supplement or other modification with respect to the “Material Adverse Effect” definition in the Target Acquisition Agreement shall be deemed to be materially adverse to the interests of the Arranger; provided, further that (i) increases in the Merger Consideration (as defined in the Target Acquisition Agreement as of the date thereof), if funded with equity, shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the ArrangerAdministrative Agent, and (ii) decreases such credit agreement (including the commitment to make any further extensions of credit thereunder) has been terminated and no longer in the Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders or the Arranger and shall not require the consent of the Arranger if such Merger Consideration decrease does not exceed 10.0% in aggregate.
(c) The Arranger shall have received (i) the Audited Financial Statements, (ii) the Unaudited Financial Statements, (iii) the Target Financial Statements and (iv) the Pro Forma Summary.
(d) (i) The Target Acquisition Agreement Representations shall be true and correct as of the date of the initial Borrowing hereunder and (ii) the Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of the initial Borrowing hereunder.
(e) No Target Material Adverse Effect on the Target shall have occurred since the date of the Target Acquisition Agreement that is continuing.
(f) A certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Section 4.02(b) and Section 4.02(d)(ii) have been satisfiedeffect.
(g) A certificate signed The Administrative Agent shall have received, for the account of each Lender that has requested a Promissory Note, such Lender’s Promissory Note duly executed and delivered by the chief financial an authorized officer of the Borrower, substantially in the form of Exhibit G, attesting to the solvency (on a consolidated basis) of the Borrower and its subsidiaries as of the date of the initial Borrowing hereunder on a pro forma basis after giving effect to the Transactions.
(h) The Availability Period Administrative Agent shall not have expiredreceived insurance certificates evidencing insurance coverage required to be maintained pursuant to each Loan Document and naming the Administrative Agent on behalf of the Finance Parties as additional insured (in the case of liability insurance), and providing that no cancellation of the policies will be made without at least thirty days’ prior written notice to the Administrative Agent.
(i) The LendersLenders shall be satisfied that there shall have been no material adverse effect on the business, assets, financial condition or operations of STX and its subsidiaries, taken as a whole, since June 29, 2018.
(j) Upon the reasonable request of any Lender, made at least ten days prior to the Effective Date, the Borrower shall provide such information so requested in connection with applicable “know your customer” and “anti-money laundering” rules and regulations, including the USA PATRIOT Act, in each case at least five days prior to the Effective Date.
(k) Prior to the Effective Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower.
(l) The Administrative Agent and the Arranger shall have received all fees and other amounts due and payable on or prior to the Effective Date, including in each case, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower on or before under any Loan Document. The Administrative Agent shall notify the date Borrower and the Lenders as to the satisfaction of the initial Borrowingdocumentary delivery requirements set forth above, and for which invoices have been presented at least two (2) Business Days prior to the date of the initial Borrowingsuch notice shall be conclusive and binding.
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