Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been satisfied (or waived in accordance with Section 9.08): (a) The Effective Date shall have occurred. (b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders. (c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect. (d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party. (e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates). (f) The Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions. (g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date. (h) The Administrative Agent shall have received the following: (i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);
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Funding Date. The Each Lender’s obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit any Loan hereunder shall not become effective until upon the date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions has been satisfied (on or waived in accordance with Section 9.08):after the Effective Date:
(a) The Effective Date shall have occurred.
(b) The final terms Alliance Boots Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Spin-Off Documents Loans, shall be consistent in all material respects with be) consummated pursuant to the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than Acquisition Agreement without giving effect to any modifications, amendmentsconsents, amendments or waivers or consents by Walgreens thereto that (i) in each case are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required LendersArrangers, unless each Arranger shall have provided its written consent thereto (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Since December 31, 2020, there No Effect shall not have occurred any fact, event, change, condition, occurrence or circumstance thatbe continuing that has had or would reasonably be expected to have, individually or in the aggregate, has, or would reasonably be expected to have a an Alliance Boots Material Adverse Effect.
(d) The Administrative Agent (or its counsel) Borrower shall have received from the Borrower paid all fees and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral reasonable out-of-pocket expenses (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interestslegal fees and expenses) of the Administrative Agent, as applicablethe Arrangers and the Lenders that are due and payable on the Funding Date for which, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing officescase of expenses only, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will invoices have been executed and/or delivered andpresented to Walgreens at least three Business Days prior to the Funding Date, on or prior to the Funding Date (to the extent applicabledue).
(e) The Lenders shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of each of (i) internal counsel for the Borrower (covering customary corporate opinions) and (ii) Wachtell, Lipton, Xxxxx & Xxxx or other counsel to the Borrower reasonably acceptable to the Arrangers (covering customary legal matters for an unsecured bank loan financing, including a customary opinion as to no-conflicts with (x) the indenture, dated as of November 2014, between Walgreens Boots Alliance, as issuer, and Xxxxx Fargo Bank, National Association, as trustee, (y) the indenture, dated as of July 17, 2008, between Walgreens, as issuer, and Xxxxx Fargo Bank, National Association, as trustee and (z) the Revolving Credit Agreement), in each case in form and substance to be in proper form for filing (including UCC mutually agreed upon by the Arrangers and other lien searches, intellectual property searches and insurance certificates)the Borrower prior to the Effective Date.
(f) The Administrative Agent shall have received satisfactory results of at least 3 Business Days prior to the Funding Date all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S. Patriot Act, as reasonably requested by any Arranger or a recent search of all effective UCC financing statements (or equivalent filings) made with respect Lender in writing at least 10 days prior to any personal property of any Loan Party in the appropriate jurisdictionsFunding Date.
(g) The Administrative Agent shall have received, on behalf At the time of itself, and upon giving effect to the Collateral Agent, borrowing of the L/C Issuers and the Lenders Loans on the Funding Date, Date (i)(A) the Acquisition Representations and (B) the Specified Representations shall be true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect) (it being understood that (without limiting the requirement to satisfy each of the conditions set forth in this Section 4.02) the only representations and warranties the making or accuracy of which shall be a customary written opinion condition to the availability of (ithe Loans on the Funding Date will be the Acquisition Representations and the Specified Representations) Xxxxxxxxx LLP, special counsel for the Loan Parties, and (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Datethere shall not exist any Specified Default.
(h) The Administrative Agent shall have received the following:
(i) a certificate in substantially the form of Exhibit H, dated as of the Funding Date, from an Authorized Officer or the Secretary or Assistant Secretary of the Borrower that each of the conditions set forth in clauses (b), (c) and (g) of this Section 4.02 have been satisfied and (ii) a Borrowing Notice in accordance with Section 2.08. Without limiting the generality of the provisions of Section 8.02, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have 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 good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);proposed Funding Date specifying its objection thereto.
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Funding Date. The obligations obligation of the Lenders each Lender to make Loans a Loan on the Funding Date is subject only to the Effective Date and of to the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which each satisfaction of the following conditions has been satisfied (or waived in accordance with Section 9.08):additional conditions:
(a) The Effective Date Substantially concurrently with the making of the Loans, the Specified Acquisition shall have occurredbeen consummated in all material respects in accordance with the Acquisition Agreement without giving effect to any amendment, modification or waiver or consent by the Borrower thereunder, in each case, that is materially adverse to the Lenders, in their capacities as such, without the prior written consent of the Specified Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) it being understood and agreed that (i) any increase or decrease in the acquisition consideration under the Acquisition Agreement in accordance with the terms of the Acquisition Agreement as in effect on June 10, 2023 and the Purchaser’s (as defined in the Acquisition Agreement) election to exercise its rights under Section 2.6 of the Acquisition Agreement as in effect on June 10, 2023, (ii) any other decrease in the acquisition consideration under the Acquisition Agreement that is accompanied by a dollar-for-dollar reduction in the Commitments and (iii) any other increase in the cash portion of the acquisition consideration since June 10, 2023 which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders.
(b) The final terms Since the date of the Spin-Off Documents shall be consistent in all material respects with the description thereof Acquisition Agreement, no Company Material Adverse Effect (as defined in the Registration Statement Acquisition Agreement as in effect on file with June 10, 2023) shall have occurred that is continuing on the SEC as of the Effective Funding Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31(i) The Specified Representations shall be accurate in all material respects on and as of the Funding Date (except to the extent that any Specified Representations expressly relate to an earlier date, 2020, there in which case such Specified Representations shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or been accurate in all material respects as of such earlier date) and (ii) the Acquisition Agreement Representations (to the extent set forth in the aggregate, has, or would reasonably definition thereof) shall be expected to have a Material Adverse Effectaccurate in all material respects on and as of the Funding Date.
(d) The Administrative Agent (Prior to, or its counsel) substantially concurrently with, the making of the Loans on the Funding Date, all principal, interest and fees due under the Argus Credit Agreement shall have received from been paid and all commitments thereunder shall have been terminated (the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party“Refinancing”).
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results a Borrowing Request in accordance with the requirements of Section 2.03 hereof; provided that, no such Borrowing Request shall include any representations or warranties (other than the Specified Representations) or a recent search of all effective UCC financing statements statement as to the absence (or equivalent filingsexistence) made with respect to any personal property of any Loan Party Default or Event of Default.
(f) The Borrower shall have paid all fees payable pursuant to the Fee Letter and the Agency Fee Letter on or prior to the Funding Date and, to the extent invoiced at least two business days prior to the Funding Date, expenses in each case required by the appropriate jurisdictionsterms of this Agreement to be paid on or prior to the Funding Date.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, received a customary written opinion of Solvency Certificate signed by a Financial Officer (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionother authorized financial officer) of each such Loan Party (including a bringdown certificate as to the good standing Borrower in the form of the Borrower);Exhibit D.
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Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been is satisfied (or waived in accordance with Section 9.089.02):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective DateSince November 15, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 20202021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any factLoan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, eventtogether with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, changeendorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, conditionduly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, occurrence or circumstance thatin proper form for filing with the applicable Governmental Authority, individually or and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the aggregateperiod between the Effective Date and the Funding Date), hasa certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or would other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably be expected practicable to have a Material Adverse Effectreceive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent (or its counsel) shall have received from a written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel to the Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the Lenders and (iii) Walkers (Jersey) LLP, Jersey counsel to the Administrative Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of hereby requests such partycounsel to deliver such opinions.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the The Administrative Agent shall have received a completed Perfection Certificate Solvency Certificate, dated the Funding Date and signed by a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that there have been no material changes to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(i) The Specified Representations shall be true and correct in all material respects (provided that, any such representations and warranties that are qualified by Material Adverse Effect or other materiality qualifier shall be true and correct in all respects) as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, in the case of any such representations or warranties qualified by Material Adverse Effect or other materiality qualifier, in all respects) as of such earlier date and (ii) the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all respects as of such earlier date.
(i) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, certifying as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicableconditions set forth in clauses 4.02(b), be in proper form for filing (including UCC h), (k) and other lien searches, intellectual property searches and insurance certificates(l).
(fj) The Administrative Agent shall have received satisfactory results schedules to this Agreement, updated as of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties Date and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Lenders, provided that, (i) the Administrative Agent and the Lenders agree that such schedules shall be deemed to be satisfactory if such updated schedules do not differ from the corresponding schedules attached hereto as of the Effective Date in a manner that is material and adverse to the Lenders and (ii) the Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have objected in writing within three (3) Business Days after receipt of any such updated schedules.
(k) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(hl) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received, at least three (3) Business Days prior to the Funding Date, all documentation and other information regarding the Guarantors requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(n) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the followingFunding Date, including, to the extent invoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower in favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) certificate duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the good standing inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent such concept that any security interest in any Collateral is not, or a similar concept exists under cannot be, provided and/or perfected on the laws of such jurisdiction) of each such Loan Party Funding Date (including a bringdown certificate as to other than the good standing pledge and perfection of the Borrowersecurity interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time);.
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Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been is satisfied (or waived in accordance with Section 9.089.02):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective DateSince November 15, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 20202021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any factLoan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, eventtogether with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, changeendorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof, conditionRedline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(C) one or more intellectual property security agreements, occurrence or circumstance thatduly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, individually or in proper form for filing with the applicable Governmental Authority, and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the aggregateperiod between the Effective Date and the Funding Date), hasa certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or would other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably be expected practicable to have a Material Adverse Effectreceive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent (or its counsel) shall have received from a written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (i) Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel to the Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the Lenders and (iii) Walkers (Jersey) LLP, Jersey counsel to the Administrative Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of hereby requests such partycounsel to deliver such opinions.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the The Administrative Agent shall have received a completed Perfection Certificate Solvency Certificate, dated the Funding Date and signed by a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that there have been no material changes (or, in the case of the Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(h) (i) The Specified Representations shall be true and correct in all material respects (provided that, any such representations and warranties that are qualified by Material Adverse Effect or other materiality qualifier shall be true and correct in all respects) as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, in the case of any such representations or warranties qualified by Material Adverse Effect or other materiality qualifier, in all respects) as of such earlier date and (ii) the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all respects as of such earlier date.
(i) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, certifying as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicableconditions set forth in clauses 4.02(b), be in proper form for filing (including UCC h), (k) and other lien searches, intellectual property searches and insurance certificates(l).
(fj) The Administrative Agent shall have received satisfactory results schedules to this Agreement, updated as of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties Date and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Lenders, provided that, (i) the Administrative Agent and the Lenders agree that such schedules shall be deemed to be satisfactory if such updated schedules do not differ from the corresponding schedules attached hereto as of the Effective Date in a manner that is material and adverse to the Lenders and (ii) the Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have objected in writing within three (3) Business Days after receipt of any such updated schedules. Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(k) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(hl) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received, at least three (3) Business Days prior to the Funding Date, all documentation and other information regarding the Guarantors requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(n) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the followingFunding Date, including, to the extent invoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower in favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) certificate duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the good standing inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement, Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent such concept that any security interest in any Collateral is not, or a similar concept exists under cannot be, provided and/or perfected on the laws of such jurisdiction) of each such Loan Party Funding Date (including a bringdown certificate as to other than the good standing pledge and perfection of the Borrowersecurity interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time);.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been satisfied (or waived in accordance with Section 9.08):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) XxxxxxMiller, XxxxxxxJohnson, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);
(ii) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Guarantor, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Guarantor as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Guarantor;
(iii) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, or the general partner, managing member or sole member, of each Guarantor, in each case dated the Funding Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Guarantor as in effect on the Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Guarantor (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Funding Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Guarantor has not been amended since the date of the last amendment thereto disclosed pursuant to clause (ii) above, and
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Guarantor;
(iv) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, of the Borrower, dated the Funding Date, and certifying that there have been no material changes to the documents delivered pursuant to Section 4.01(e)(i) (other than any such changes made in connection with the Spin-Off as reflected in any amendments or modifications to such documents that are attached to such certificate) and Section 4.01(e)(ii) with respect to the Borrower, in each case, since the Effective Date; and
(v) a Borrowing Request as required by Section 2.03.
(i) The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit D and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions.
(j) The Agents and the Lead Arrangers shall have received all fees and other amounts previously agreed in writing by the Administrative Agent, the Lead Arrangers, the other Agents and the Borrower to be due and payable on or prior to the Funding Date, including, to the extent invoiced to the Borrower at least three (3) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(k) On the Funding Date, after giving pro forma effect to the Transactions, the Borrower shall have unused Revolving Commitments under the Revolving Facility of not less than $400,000,000.
(l) All Governmental Authority and third party approvals and all equity holder and board of directors (or comparable entity management body) authorizations in connection with the Transactions contemplated to occur on the Funding Date shall have been obtained and be in full force and effect, or will be obtained substantially concurrently with the occurrence of the Funding Date.
(m) The Borrower shall be in compliance with the Financial Performance Covenants on the Funding Date after giving pro forma effect to the Transactions.
(n) The Specified Representations shall be true and correct in all material respects on the Funding Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date); provided, that, any such Specified Representations which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects.
(o) After giving effect to the Transactions on the Funding Date, no Default or Event of Default shall have occurred and be continuing.
(p) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of the Borrower or any Restricted Subsidiary shall have outstanding any Indebtedness, other than (i) Indebtedness under this Agreement, (ii) the Senior Notes and (iii) other Indebtedness permitted by Section 6.01.
(q) The Senior Notes shall have been issued with a gross aggregate principal amount of no less than $2,100,000,000.
(r) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (c), (m), (n), (o), (p) and (s) of this Section 4.02.
(s) The Spin-Off Date shall be scheduled to occur on or before the Spin-Off Deadline, and the Spin-Off Payments shall have been made, or shall be scheduled to be made, prior to the Spin-Off Deadline (but in any event, no later than the Spin-Off Date).
(t) At least five (5) Business Days prior to the Funding Date, the Administrative Agent, the Lead Arrangers and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent (on its own behalf or on behalf of any Lead Arranger or Lender) at least ten (10) Business Days in advance of the Funding Date.
(u) To the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, each Lender that has requested in a written notice to the Borrower at least ten (10) days prior to the Funding Date, shall have received a Beneficial Ownership Certification in the relation to such Guarantor. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Credit Documentation) on or prior to 5:00 p.m., New York City time on June 24, 2021 (and, in the event such conditions are not so satisfied or waived, the Credit Documentation and the Commitments shall terminate at such time).
Appears in 1 contract
Funding Date. The obligations of the Lenders to make Loans hereunder is subject to receipt by the Administrative Agent of a Borrowing Request therefor in accordance with Section 2.03, and of to the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which each satisfaction (or waiver in accordance with Section 9.02) of the following conditions has been satisfied (on or waived in accordance with Section 9.08):after the Effective Date:
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate certificate, substantially in the form attached hereto as Exhibit E (and, if not in the form of such Exhibit, with all modifications therefrom to be reasonably acceptable to the Administrative Agent), dated the Funding Date and signed by a Responsible Financial Officer of the Borrower (or, with respect to paragraphs (e), (f) and (g) (to the extent relating to the Acquired Company and its Subsidiaries) of this Section, at the option of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence a Financial Officer of the Collateral Agent’s first priority security interest in and liens on Acquired Company), confirming satisfaction of the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed conditions set forth in the applicable government UCC filing officesfirst sentence of paragraph (b) of this Section and in paragraphs (e), all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent (f), (g) and Trademark Office, as applicable(h) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates)of this Section.
(fb) The Merger shall have been consummated, or substantially concurrently with the making of Loans hereunder shall be consummated, pursuant to and on the terms set forth in the Merger Agreement (and all conditions precedent to the obligations of the Borrower and the Merger Sub to consummate the Merger shall have been satisfied on the terms set forth in the Merger Agreement), in each case without giving effect to amendments, waivers or consents by the Borrower or the Merger Sub (other than any waiver or consent to any interim operating covenants of the Acquired Company and its Subsidiaries not involving the incurrence of Debt or Liens or the disposition of assets) that are adverse in any material respect to the Lenders and that have not been approved by the Arrangers (such approval not to be unreasonably withheld or delayed). The Administrative Agent shall have received satisfactory results a copy of the closing date officer’s certificate delivered by the Acquired Company pursuant to Section 7.2(c) of the Merger Agreement.
(c) The Arrangers shall have received (a) audited Consolidated balance sheets and related Consolidated statements of operations, stockholders’ equity and cash flows of each of the Borrower and the Acquired Company for the three most recently completed fiscal years ended at least 90 days prior to the Funding Date, in each case prepared in accordance with GAAP, and (b) unaudited Consolidated balance sheets and related Consolidated statements of operations, stockholders’ equity and cash flows of each of the Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days before the Funding Date, in each case prepared in accordance with GAAP; provided that filing of the required financial statements by the Borrower or the Acquired Company with the SEC of an Annual Report on Form 10-K and a recent search Quarterly Report on Form 10-Q will satisfy the foregoing requirements.
(d) The Arrangers shall have received the Pro Forma Financial Statements.
(e) Except as set forth in the Acquired Company Disclosure Letter or in the Acquired Company SEC Documents filed with the SEC and publicly available after January 1, 2011 and prior to the Signing Date (excluding any forward-looking statements, risk factors and other similar statements in the Acquired Company SEC Documents that are cautionary, nonspecific or predictive in nature), from January 1, 2011 through the Signing Date there has not been any event, circumstance, change, occurrence, state of all effective UCC financing statements facts or effect (or equivalent filings) made with respect to any personal property including the incurrence of any Loan Party liabilities of any nature, whether or not accrued, contingent or otherwise) that has had or would reasonably be expected to have, individually or in the appropriate jurisdictionsaggregate, an Acquired Company Merger Agreement Material Adverse Effect.
(f) Since January 1, 2011, there shall not have been any event, circumstance, change, occurrence, state of facts or effect (including the incurrence of any liabilities of any nature, whether or not accrued, contingent or otherwise) that has had or would reasonably be expected to have, individually or in the aggregate, an Acquired Company Merger Agreement Material Adverse Effect.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers Acquired Company Merger Agreement Representations and the Lenders on the Funding Date, a customary written opinion of Specified Representations shall be true and correct.
(ih) Xxxxxxxxx LLP, special counsel for the Loan Parties, No event referred to in Section 7.01(d)(2) or 7.01(e) (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory with respect to the Administrative Agent Borrower) or Section 7.01(i) shall have shall have occurred and dated be continuing or would result from the making of the Loans on the Funding Date.
(hi) The Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date to the extent invoiced by 8:00 a.m., New York City time, on the Funding Date, including payment or reimbursement of all fees and expenses (including reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx LLP) required to be paid or reimbursed by the Borrower on or prior to the Funding Date, including pursuant to the Arranger Fee Letter.
(j) In the event that the Borrower determines that any of the representations and warranties set forth in Article III required to be made on the Funding Date (other than the Specified Representations) cannot be made on the Funding Date, the Administrative Agent shall have received a Funding Date Schedule setting forth such matters as the following:
(i) certificate as Borrower deems necessary to qualify such representations and warranties such that, after giving effect to the good standing Funding Date Schedule, the Borrower determines that it can make such representations and warranties as of the Funding Date (it being understood and agreed nothing in this paragraph (j) shall be construed as making the accuracy of any representation or warranty set forth herein (other than the Specified Representations) a condition precedent to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing obligations of the BorrowerLenders to make Loans hereunder);.
Appears in 1 contract
Samples: Bridge Credit Agreement (United Technologies Corp /De/)
Funding Date. The Each Lender’s obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit any Loan hereunder shall not become effective until upon the date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions has been satisfied (on or waived in accordance with Section 9.08):after the Effective Date:
(a) The Effective Date shall have occurred.;
(b) The final terms Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Spin-Off Documents Loans, shall be consistent be) consummated in each case in all material respects in accordance with the description thereof terms set forth in the Registration Statement on file with the SEC as of the Effective Date, other than Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or consents thereto requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders (it being understood that (i) are not any modification, amendment, supplement, consent, waiver or request by the Borrower to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed to be materially adverse to the Lead Arrangers or interests of the Lenders in their capacities as such or and (ii) are (x) any consent or request made by the Borrower pursuant to Section 6.15 of the Acquisition Agreement and the Acquired Company’s compliance therewith and (y) any modification, amendment, supplement, consent, waiver or request with respect to definition of the “End Date” (and any corresponding changes to any terms or provisions (if any) requiring or addressing the consummation of the Acquisition prior to the “End Date”) thereunder, in each case, shall not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the Lead Arrangers and the Required Lenders.(such consent not to be unreasonably withheld, conditioned or delayed);
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results (i) audited consolidated balance sheets and related audited statements of a recent search operations, stockholders’ equity and cash flows of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers Borrower and the Lenders on Acquired Company for each of the three fiscal years most recently ended at least 90 days prior to the Funding Date and (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date; provided that the filing of financial statements complying with the foregoing requirements on Form 10-K or Form 10-Q, a customary written opinion of as the case may be, by the Borrower or the Acquired Company will satisfy the applicable conditions set forth in this clause (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionc) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);Section 4.
Appears in 1 contract
Samples: Backstop Bridge Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been satisfied (or waived in accordance with Section 9.08):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);
(ii) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Guarantor, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Guarantor as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Guarantor;
(iii) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, or the general partner, managing member or sole member, of each Guarantor, in each case dated the Funding Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Guarantor as in effect on the Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Guarantor (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Funding Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Guarantor has not been amended since the date of the last amendment thereto disclosed pursuant to clause (ii) above, and
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Guarantor;
(iv) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, of the Borrower, dated the Funding Date, and certifying that there have been no material changes to the documents delivered pursuant to Section 4.01(e)(i) (other than any such changes made in connection with the Spin-Off as reflected in any amendments or modifications to such documents that are attached to such certificate) and Section 4.01(e)(ii) with respect to the Borrower, in each case, since the Effective Date; and
(v) a Borrowing Request as required by Section 2.03.
(i) The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit D and signed by the chief financial officer or another Responsible Officer of the Borrower confirming the solvency of the Borrower and its Restricted Subsidiaries on a consolidated basis after giving effect to the Transactions.
(j) The Agents and the Lead Arrangers shall have received all fees and other amounts previously agreed in writing by the Administrative Agent, the Lead Arrangers, the other Agents and the Borrower to be due and payable on or prior to the Funding Date, including, to the extent invoiced to the Borrower at least three (3) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(k) On the Funding Date, after giving pro forma effect to the Transactions, the Borrower shall have unused Revolving Commitments under the Revolving Facility of not less than $400,000,000.
(l) All Governmental Authority and third party approvals and all equity holder and board of directors (or comparable entity management body) authorizations in connection with the Transactions contemplated to occur on the Funding Date shall have been obtained and be in full force and effect, or will be obtained substantially concurrently with the occurrence of the Funding Date.
(m) The Borrower shall be in compliance with the Financial Performance Covenants on the Funding Date after giving pro forma effect to the Transactions.
(n) The Specified Representations shall be true and correct in all material respects on the Funding Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date); provided, that, any such Specified Representations which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects.
(o) After giving effect to the Transactions on the Funding Date, no Default or Event of Default shall have occurred and be continuing.
(p) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of the Borrower or any Restricted Subsidiary shall have outstanding any Indebtedness, other than (i) Indebtedness under this Agreement, (ii) the Senior Notes and (iii) other Indebtedness permitted by Section 6.01.
(q) The Senior Notes shall have been issued with a gross aggregate principal amount of no less than $2,100,000,000.
(r) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (c), (m), (n), (o), (p) and (s) of this Section 4.02.
(s) The Spin-Off Date shall be scheduled to occur on or before the Spin-Off Deadline, and the Spin-Off Payments shall have been made, or shall be scheduled to be made, prior to the Spin-Off Deadline (but in any event, no later than the Spin-Off Date).
(t) At least five (5) Business Days prior to the Funding Date, the Administrative Agent, the Lead Arrangers and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent (on its own behalf or on behalf of any Lead Arranger or Lender) at least ten (10) Business Days in advance of the Funding Date.
(u) To the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, each Lender that has requested in a written notice to the Borrower at least ten (10) days prior to the Funding Date, shall have received a Beneficial Ownership Certification in the relation to such Guarantor. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Credit Documentation) on or prior to 5:00 p.m., New York City time on June 24, 2021 (and, in the event such conditions are not so satisfied or waived, the Credit Documentation and the Commitments shall terminate at such time).
Appears in 1 contract
Funding Date. The Each Lender’s obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit any Loan hereunder shall not become effective until upon the date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions has been satisfied (on or waived in accordance with Section 9.08):after the Effective Date:
(a) The Effective Date shall have occurred.;
(b) The final terms Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Spin-Off Documents Loans, shall be consistent be) consummated in each case in all material respects in accordance with the description thereof terms set forth in the Registration Statement on file with the SEC as of the Effective Date, other than Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or consents thereto requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders (it being understood that (i) are not any modification, amendment, supplement, consent, waiver or request by the Borrower to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed to be materially adverse to the Lead Arrangers or interests of the Lenders and (ii)(x) any consent or request made by the Borrower pursuant to Section 6.15 of the Acquisition Agreement and the Acquired Company’s compliance therewith and (y) any modification, amendment, supplement, consent, waiver or request with respect to definition of the “End Date” (and any corresponding changes to any terms or provisions (if any) requiring or addressing the consummation of the Acquisition prior to the “End Date”) thereunder, in their capacities as such or (ii) are each case, shall not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the Lead Arrangers and the Required Lenders.(such consent not to be unreasonably withheld, conditioned or delayed);
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLPaudited consolidated balance sheets and related audited statements of operations, special counsel stockholders’ equity and cash flows of the Borrower and the Acquired Company for each of the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for three fiscal years most recently ended at least 90 days prior to the Loan Parties Funding Date and (iiib) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form unaudited consolidated balance sheets and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);related unaudited statements of
Appears in 1 contract
Samples: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The obligations of the Lenders to make the Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective until the date on which the Agreement has become effective pursuant to Section 4.01 and each of the following conditions has been is satisfied (or waived in accordance with Section 9.089.02):
(a) The Effective Date Administrative Agent, the Lenders and the Lead Arranger shall have occurredreceived all fees and other amounts due and payable by the Borrower on or prior to the Effective Date, including, to the extent invoiced at least one day prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(b) The final terms Lenders shall have received (i) audited consolidated financial statements of each of the SpinBorrower and the Business for the two most recent fiscal years ended prior to the Effective Date as to which such financial statements are available (it being understood that financial statements for the Business are carve-Off Documents shall be consistent in all material respects with out financials that have been prepared according to International Reporting Financial Standards) and (ii) unaudited interim consolidated financial statements of the description thereof in Borrower for the Registration Statement on file with the SEC quarterly period ending March 31, 2010 and for each quarterly period ended subsequent thereto as to which such financial statements are available as of the Effective Date, other than modifications, amendments, waivers or consents thereto that Date (i) are not materially adverse to the Lead Arrangers or most recent such quarterly period being the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders“Reference Quarter”).
(c) Since December 31, 2020, there The Lenders shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or received with respect to the Borrower and its Subsidiaries (including subsidiaries acquired in the aggregateAcquisition) (i) pro forma financial statements as of the end of the Reference Quarter (predicated upon the financial statements of the Borrower as of the end of the Reference Quarter and the financial information of the Business for the most recent quarter for which such financial information (such as internal monthly reports) is available) giving effect to the Acquisition and the financing contemplated hereunder and (ii) projections through 2014.
(d) The Acquisition Agreement shall be in full force and effect. All conditions precedent under the Acquisition Agreement, hasincluding, without limitation, the conditions precedent set forth in Section 4.1 of the Acquisition Agreement, shall have been satisfied (and not waived) and any amendment to the Acquisition Agreement materially adverse to the interests of the Lead Arranger, the Administrative Agent or would the Lenders shall be satisfactory in form and substance to the Administrative Agent; it being understood and agreed that any material change to the transaction structure, any amendment of the definition of “Xxxxx Xxxxxxxx Adverse Effect” contained in the Acquisition Agreement, any amendment of the definition of “Deferred Jurisdiction” contained in the Acquisition Agreement and any increase or decrease in the “Offer Value” referred to in the Acquisition Agreement, shall in each case be deemed to be materially adverse to the interests of the Lead Arranger, the Administrative Agent and the Lenders. The Administrative Agent shall have received evidence reasonably satisfactory to it that the Acquisition shall be consummated substantially contemporaneously with the making of the Loans.
(e) All regulatory, legal and other third party approvals necessary in connection with the Acquisition and the financing thereof shall have been obtained (except for those with respect to which (i) the failure to have obtained could not reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the Borrower, the Business, the Acquisition, the financing thereof or any of the other Transactions, or (ii) the sole consequence of the failure to obtain any such approval is to defer the consummation of the acquisition of certain assets of the Business in “Deferred Jurisdictions” (as defined in the Acquisition Agreement) pursuant to the terms of the Acquisition Agreement).
(df) The Administrative Agent (There shall not exist any injunction or its counsel) shall have received from temporary restraining order and no litigation has commenced or is otherwise pending which would prohibit the Borrower execution of this Agreement and each the other Loan Party a duly executed counterpart Credit Documents, the Loans or any of the Collateral Agreement signed on behalf of such partyother Transactions.
(eg) Subject Prior to Section 5.18or substantially contemporaneously with the making of the Loans, the Collateral Borrower shall enter into the Revolving Credit Agreement, repay in full all obligations under the Existing Credit Agreement and Guarantee Requirement shall have been satisfied cause the Existing Credit Agreement and all related liens to be terminated or released.
(i) On the Effective Date, both immediately before and immediately after giving effect to the consummation of the Acquisition and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer incurrence of the Borrowerany Indebtedness in connection therewith, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, the making of the Loans, (A) there shall exist no Default or Event of Default (other than an Event of Default under clause (c) of Article VII resulting from a breach of any representation that is not a Specified Representation), (B) each of the Specified Representations shall be true and correct in all certificates evidencing pledged capital stock or membership or partnership interestsmaterial respects and (C) the Borrower shall be in pro forma compliance with the financial covenants set forth in Sections 6.07 and 6.08 and (ii) there shall have been delivered to the Administrative Agent a certificate dated the Effective Date to such effect in form and substance reasonably satisfactory to the Administrative Agent and signed by the chief financial officer of the Borrower, which certificate shall, as applicableto clause (C) above, with accompanying executed stock powers, all UCC financing include calculations reflecting such compliance and be predicated upon the financial statements to be filed in of the applicable government UCC filing offices, all intellectual property security agreements to be filed with Borrower as of the United States Copyright Office or end of the United States Patent Reference Quarter and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form financial statements of the Business for filing (including UCC and other lien searches, intellectual property searches and insurance certificates)the most recent quarter for which such financial statements are available.
(fi) The Administrative Agent shall have received satisfactory results of a recent search of all effective UCC financing statements (or equivalent filingsx) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written an opinion of (i) Xxxxxxxxx letter from Sidley Austin LLP, special counsel for the Loan PartiesBorrower, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for dated as of the Loan Parties Effective Date and (iiiy) Xxxxxxx & Xxxan opinion letter from Xxxx Xxx Xxxxx, Pennsylvania counsel for Vice President, General Counsel, Corporate Secretary and Chief Compliance Officer of the Loan PartiesBorrower, dated as of the Effective Date, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Dateits counsel. The Borrower hereby requests such counsel to deliver such opinion.
(hj) The Administrative Agent shall have received such documents and certificates as the following:
(i) certificate as Administrative Agent or its counsel may reasonably request relating to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel. The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on December 18, 2010 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time);.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Corn Products International Inc)
Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been is satisfied (or waived in accordance with Section 9.089.02):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective DateSince November 15, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 20202021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any factLoan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, eventtogether with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, changeendorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, conditionduly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, occurrence or circumstance thatin proper form for filing with the applicable Governmental Authority, individually or and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the aggregateperiod between the Effective Date and the Funding Date), hasa certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or would other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably be expected practicable to have a Material Adverse Effectreceive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent (or its counsel) shall have received from a written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (i) Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel to the Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the Lenders and (iii) Walkers (Jersey) LLP, Jersey counsel to the Administrative Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of hereby requests such partycounsel to deliver such opinions.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the The Administrative Agent shall have received a completed Perfection Certificate Solvency Certificate, dated the Funding Date and signed by a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that there have been no material changes (or, in the case of the Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(h) (i) The Specified Representations shall be true and correct in all material respects (provided that, any such representations and warranties that are qualified by Material Adverse Effect or other materiality qualifier shall be true and correct in all respects) as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, in the case of any such representations or warranties qualified by Material Adverse Effect or other materiality qualifier, in all respects) as of such earlier date and (ii) the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all respects as of such earlier date.
(i) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, certifying as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicableconditions set forth in clauses 4.02(b), be in proper form for filing (including UCC h), (k) and other lien searches, intellectual property searches and insurance certificates(l).
(fj) The Administrative Agent shall have received satisfactory results schedules to this Agreement, updated as of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties Date and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Lenders, provided that, (i) the Administrative Agent and the Lenders agree that such schedules shall be deemed to be satisfactory if such updated schedules do not differ from the corresponding schedules attached hereto as of the Effective Date in a manner that is material and adverse to the Lenders and (ii) the Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have objected in writing within three (3) Business Days after receipt of any such updated schedules.
(k) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(hl) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received, at least three (3) Business Days prior to the Funding Date, all documentation and other information regarding the Guarantors requested in connection with applicable “know your customer” and anti‑money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(n) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the followingFunding Date, including, to the extent invoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out‑of‑pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower in favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) certificate duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the good standing inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent such concept that any security interest in any Collateral is not, or a similar concept exists under cannot be, provided and/or perfected on the laws of such jurisdiction) of each such Loan Party Funding Date (including a bringdown certificate as to other than the good standing pledge and perfection of the Borrowersecurity interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time);.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Funding Date. The obligations of the Lenders to make Loans and of the L/C Issuers Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions has been is satisfied (or waived in accordance with Section 9.089.02):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective DateSince November 15, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 20202021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any factLoan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, eventtogether with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, changeendorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, conditionduly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, occurrence or circumstance thatin proper form for filing with the applicable Governmental Authority, individually or and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the aggregateperiod between the Effective Date and the Funding Date), hasa certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or would other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably be expected practicable to have a Material Adverse Effectreceive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent (or its counsel) shall have received from a written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (i) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, United States counsel to the Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the Lenders and (iii) Walkers (Jersey) LLP, Jersey counsel to the Administrative Agent and the Lenders, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of hereby requests such partycounsel to deliver such opinions.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the The Administrative Agent shall have received a completed Perfection Certificate Solvency Certificate, dated the Funding Date and signed by a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that there have been no material changes (or, in the case of the Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(i) The Specified Representations shall be true and correct in all material respects (provided that, any such representations and warranties that are qualified by Material Adverse Effect or other materiality qualifier shall be true and correct in all respects) as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, in the case of any such representations or warranties qualified by Material Adverse Effect or other materiality qualifier, in all respects) as of such earlier date and (ii) the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all respects as of such earlier date.
(i) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, certifying as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicableconditions set forth in clauses 4.02(b), be in proper form for filing (including UCC h), (k) and other lien searches, intellectual property searches and insurance certificates(l).
(fj) The Administrative Agent shall have received satisfactory results schedules to this Agreement, updated as of a recent search of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders on the Funding Date, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties Date and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Lenders, provided that, (i) the Administrative Agent and the Lenders agree that such schedules shall be deemed to be satisfactory if such updated schedules do not differ from the corresponding schedules attached hereto as of the Effective Date in a manner that is material and adverse to the Lenders and (ii) the Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have objected in writing within three (3) Business Days after receipt of any such updated schedules.
(k) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(hl) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received, at least three (3) Business Days prior to the Funding Date, all documentation and other information regarding the Guarantors requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(n) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the followingFunding Date, including, to the extent invoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower in favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) certificate duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the good standing inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent such concept that any security interest in any Collateral is not, or a similar concept exists under cannot be, provided and/or perfected on the laws of such jurisdiction) of each such Loan Party Funding Date (including a bringdown certificate as to other than the good standing pledge and perfection of the Borrowersecurity interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time);.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Funding Date. The Each Lender’s obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit any Loan hereunder shall not become effective until upon the date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions has been satisfied (on or waived in accordance with Section 9.08):after the Effective Date:
(a) The Effective Date shall have occurred.;
(b) The final terms Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Spin-Off Documents Loans, shall be consistent be) consummated in each case in all material respects in accordance with the description thereof terms set forth in the Registration Statement on file with the SEC as of the Effective Date, other than Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or consents thereto requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders (it being understood that (i) are not any modification, amendment, supplement, consent, waiver or request by the Borrower to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed to be materially adverse to the Lead Arrangers or interests of the Lenders and (ii)(x) any consent or request made by the Borrower pursuant to Section 6.15 of the Acquisition Agreement and the Acquired Company’s compliance therewith and (y) any modification, amendment, supplement, consent, waiver or request with respect to definition of the “End Date” (and any corresponding changes to any terms or provisions (if any) requiring or addressing the consummation of the Acquisition prior to the “End Date”) thereunder, in their capacities as such or (ii) are each case, shall not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the Lead Arrangers and the Required Lenders.Arranger (such consent not to be unreasonably withheld, conditioned or delayed);
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received satisfactory results (i) audited consolidated balance sheets and related audited statements of a recent search operations, stockholders’ equity and cash flows of all effective UCC financing statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers Borrower and the Lenders on Acquired Company for each of the three fiscal years most recently ended at least 90 days prior to the Funding Date and (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date; provided that the filing of financial statements complying with the foregoing requirements on Form 10-K or Form 10-Q, a customary written opinion of as the case may be, by the Borrower or the Acquired Company will satisfy the applicable conditions set forth in this clause (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent and dated the Funding Date.
(h) The Administrative Agent shall have received the following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionc) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);Section 4.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The obligations obligation of the Lenders each Lender to make Loans and of a Loan on the L/C Issuers Funding Date in accordance with Section 2.01 is subject to issue Letters of Credit hereunder shall not become effective until the date on which each satisfaction of the following conditions has been satisfied (or unless waived in accordance with Section 9.0810.02):
(a) The Effective Date representations and warranties of the Obligors set forth in Article III of this Agreement or any other Loan Document shall have occurredbe true and correct in all material respects (other than any such representation and warranty that is already qualified by materiality in which case such representation and warranty shall be true and correct) on and as of the Funding Date, before and after giving effect to the Borrowing, or, if any such representation or warranty was made as of an earlier date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) The final terms of Prior to and immediately after giving effect to the Spin-Off Documents shall be consistent in all material respects with Borrowing on the description thereof in the Registration Statement on file with the SEC as of the Effective Funding Date, other than modifications, amendments, waivers no Default has occurred and is continuing or consents thereto that (i) are not materially adverse to would result from the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lendersuse of proceeds therefrom.
(c) Since December 31, 2020, there The Borrower shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or delivered a Borrowing Request in the aggregate, has, or would reasonably be expected to have a Material Adverse Effectaccordance with Section 2.03.
(d) The Administrative Agent (or its counsel) shall have received from a Note executed by the Borrower and in favor of each other Loan Party Lender that requested a duly executed counterpart of Note prior to the Collateral Agreement signed on behalf of such partyFunding Date in accordance with Section 2.08(e).
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent The Guarantor shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the BorrowerLetter Ruling, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have which has not been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates)withdrawn.
(f) The Administrative Agent shall have received satisfactory results Compliance on a pro forma basis, after giving effect to the making of a recent search the Loans, with the applicable financial covenants set forth in Section 5.09, as of all effective UCC financing the last day of the most recently ended fiscal period of the Borrower for which financial statements (or equivalent filings) made with respect to any personal property of any Loan Party in the appropriate jurisdictionsare available.
(g) The Administrative Agent Borrower shall have received, on behalf of itself, the Collateral Agent, the L/C Issuers and the Lenders paid all fees required to be paid on the Funding DateDate in accordance with the terms of the Fee Letters and, a customary written opinion of (i) Xxxxxxxxx LLP, special counsel for the Loan Parties, (ii) Xxxxxx, Xxxxxxx, Xxxxx & Xxxxxxxxx, P.L.C., Michigan counsel for the Loan Parties and (iii) Xxxxxxx & Xxx, Pennsylvania counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to unless waived by the Administrative Agent and dated the Lead Arrangers, the Borrower shall have paid all legal fees and expenses of the Administrative Agent and the Lead Arrangers required to be paid pursuant to the terms of this Agreement and to the extent invoiced and received by the Borrower within a reasonable period prior to the Funding Date.
(h) The Administrative Agent Each of the Lead Arrangers shall have received be reasonably satisfied that the following:
Borrower (and as applicable, the Guarantor) used all commercially reasonable efforts to cause the Senior Notes to be issued or placed on or prior to the Funding Date, which efforts will include, without limitation, (i) certificate the preparation of a preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum suitable for use in a customary “road show” and, which will be in a form that will enable the independent registered public accountants of the Borrower (and as applicable, the Guarantor) to render a customary “comfort letter” (including customary “negative assurances”) (ii) as and if deemed appropriate by the financial advisor to the Guarantor in connection with the Separation Transaction, the participation of senior management and representatives of the Borrower in the road show during the 30-day period ending on the Funding Date and (iii) in connection with the foregoing, provide to the Lead Arrangers all financial statements and other information relating to the Borrower that would be required in a registration statement of the Borrower on Form S-1 for an offering registered under the Securities Act relating to senior unsecured notes. Delivery of the Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the Funding Date as to the good standing matters specified in clauses (to the extent such concept or a similar concept exists under the laws of such jurisdictiona) and (b) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);this Section 4.02.
Appears in 1 contract
Samples: 364 Day Senior Unsecured Bridge Loan Agreement (Tyco International LTD)
