Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2): (a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the Administrative Agent shall have received: (i) a certificate of Bidco signed by a director certifying: (1) the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement); (2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone; (3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme; (4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and (5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; (ii) a copy of each of the Scheme Documents; (iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court; (iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and (v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained. (b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received: (i) a certificate of Bidco signed by a director certifying: (1) the date on which the Announcement Date occurred; (2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone; (3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and (4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and (ii) a copy of each of the Offer Documents. (c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing. (d) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower hereunder. (e) The Administrative Agent shall have received a certificate of a Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances: (i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and (ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to: (iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; (iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; (v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively; (vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or (vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.
Appears in 1 contract
Initial Funding Date. The obligations obligation of the Initial Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit Term Loan on the Initial Funding Date hereunder and of is subject to the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which receipt by each Initial Lender of the following documents and satisfaction of the other conditions is satisfied (or waived provided in accordance with this Section 10.2):4.01, each of which shall be reasonably satisfactory to each Lender in form and substance:
(a) If Certificates of the Offer Conversion has not occurred, on Secretary or prior to Assistant Secretary of the Initial Funding Date, the Administrative Agent shall have received:
Borrower setting forth (i) a certificate resolutions of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior its board of directors with respect to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order authorization of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 Notes and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs provided herein, (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date officers of the relevant Borrowing;
Borrower (iiA) a copy who are authorized to sign this Agreement and the Notes and (B) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of each of signing documents and giving notices and other communications in connection with this Agreement and the Scheme Documents;
transactions contemplated hereby, (iii) a copy specimen signatures of the officers so authorized, and (iv) the certificate of incorporation and the Register of Companies confirming registration bylaws of the order of the Court sanctioning the Scheme Borrower, each certified as being true and a copy of that order of the Court;
(iv) a copy of the complete. Each Lender may conclusively rely on such certificate of registration until it receives notice in writing from the Registrar of Companies under section 138(4) of Borrower to the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedcontrary.
(b) If Certificates of the Offer Conversion has occurred, prior to Secretary or on the Initial Funding Date, the Administrative Agent shall have received:
Assistant Secretary of each Guarantor setting forth (i) a certificate resolutions of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted its board of directors with respect to the shareholders authorization of ClinPhone;
(3) that the conditions applicable Guaranty Agreement to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph which it is a party, (ii) below is correctthe officers of such Guarantor (A) who are authorized to sign such Guaranty Agreement and (B) who will, complete until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in full force connection with this Agreement and effect and has not been amended or superseded as at a date no earlier than the proposed date transactions contemplated hereby, (iii) specimen signatures of the relevant Borrowing; and
officers so authorized, and (iiiv) a copy the certificate of incorporation and the bylaws or limited liability company agreement (whichever is applicable) of such Guarantor, each of certified as being true and complete. Each Lender may conclusively rely on such certificate until it receives notice in writing from such Guarantor to the Offer Documentscontrary.
(c) In Certificates of the case Secretary or Assistant Secretary of a Borrowing Holdings setting forth (i) resolutions of its board of directors with respect to be made the authorization of the Warrants and this Agreement provided herein, (ii) the officers of the Borrower (A) who are authorized to sign this Agreement and the Warrants and (B) who will, until replaced by any another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of the officers so authorized, and (iv) the certificate of incorporation and the bylaws of Holdings, each certified as being true and complete. Each Lender may conclusively rely on such certificate until it receives notice in writing from the Borrower other than Bidco, Bidco has consented to such Borrowingthe contrary.
(d) The Administrative Agent Each Lender shall have received all fees a duly executed and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior delivered Note in an aggregate amount equal to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid Term Loan made by the Administrative Borrower hereunderit as set forth on Schedule 2.01.
(e) The Administrative Agent Guaranty Agreement, duly completed and executed.
(f) Each Lender shall have received a certificate duly executed and delivered Warrant exercisable for the number of shares of common stock of Holdings as set forth on Schedule 2.01.
(g) The parties hereto and the trustee under the Senior Subordinated Note Indenture shall have received a fairness opinion from a nationally recognized investment banking firm (i) in form and substance reasonably satisfactory to the Lenders, and (ii) in accordance with the requirements of the Senior Subordinated Note Indenture.
(h) An opinion of counsel to the Borrower and the Guarantors in form and substance reasonably satisfactory to the Lenders, including, without limitation, opinions as to compliance with the Senior Subordinated Note Indenture and no conflicts with any material documents (including the Investors' Agreement), that the Term Loans contemplated hereby constitute "Senior Indebtedness" under the Senior Subordinated Note Indenture, and such other opinions as the Lenders may reasonably request.
(i) The Borrower and Holdings shall have received an amendment to the Secured Credit Agreement in substantially the form of Exhibit E hereto.
(j) A Certificate of the Chief Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) the incurrence of the Borrowings Term Loan Obligations contemplated by this Agreement is permitted under the Senior Subordinated Note Indenture and the Term Loan Obligations constitute "Senior Indebtedness" under the Senior Subordinated Note Indenture.
(k) Each Lender that is not an existing party to the Investors' Agreement will, as a condition to receiving its Note, execute a management shareholder agreement providing for certain transfer restrictions and drag-along terms, which agreement shall be made in form reasonably satisfactory to the Borrower. The Investors' Agreement will be amended and restated to incorporate the terms described on Exhibit C. Each Lender will execute the amended and restated Investors' Agreement so long as the changes thereto are consistent in all material respects with the terms described on such date will constitute a Certain Funds Utilisation summary.
(other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(bl) or (2)(b) The Lenders shall have received evidence satisfactory to them that the holders of the definition warrants issued by Holdings prior to the making of Certain Funds Purpose)the Term Loan contemplated hereby have waived application of the anti-dilution provisions contained in such warrants to the extent, and only to the extent, such anti-dilution provisions would have been triggered by the issuance of the Warrants.
(2m) All governmental and third party approvals necessary or in the case discretion of a Borrowing to the Lenders advisable in connection with the transactions contemplated hereby and the continuing operations of the Borrower and its Subsidiaries shall have been obtained and be made on the Initial Funding Date, the remainder in full force and effect.
(n) The representations and warranties of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made each Loan Party set forth in the last paragraph of Section 4.2 Loan Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects (3such determination of materiality and material respects being made in the reasonable judgment of the Majority Lenders) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
date of such Loan Documents (vi) exercise any right of set-off or counterclaim in respect if made as of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancelspecific date, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding true and correct as of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000such specific date).
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on or following the Effective Date on which each of the following conditions is shall be satisfied (or waived in accordance with Section 10.29.08 (Waivers; Amendment)):
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(d) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower hereunder.
(e) The Administrative Agent shall have received a certificate of a Financial Officer of written opinion (addressed to the Arrangers, the Administrative Borrower certifying that (1) a portion (or allAgent, the Issuers and the Lenders) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) each of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for Holdings, the proposed Borrowings Borrower and Letter of credit issuances; and
the Restricted Subsidiaries, (ii) all subject to the Certain Funds Representations are true. The Administrative Agent shall notify penultimate paragraph of this Section 4.02, local counsel in each jurisdiction where a Loan Party is organized, where Mortgaged Property is located or which provides the Administrative Borrower governing law for any Foreign Pledge Agreement or Foreign Security Agreement, and the Lenders laws of which are not covered by the Initial Funding Dateopinion letter referred to in clause (i) of this paragraph, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any a senior legal counsel of its Commitments to the extent to do so would prevent Alcoa or limit the making of a Certain Funds Utilisation;
Holdings, in each case, (ivA) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied dated as of the Initial Funding Date and as (B) in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Acquisition Consideration Payment Date, respectively;Borrower hereby requests such counsel to deliver such opinions.
(vib) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all The Administrative Agent shall have received such rights, remedies documents and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs certificates as the Administrative Agent or its counsel may reasonably request relating to apply proceeds the organization, existence and good standing (or equivalent concepts in any applicable jurisdiction) of each Loan Party, the authorization of the Borrowings on the Initial Funding Date Transactions and any other legal matters relating to the payment of Loan Parties, the foregoing amounts until they are paid Loan Documents or the Transactions, all in full. form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Borrower represents and covenants that, after the borrowings on Agent shall have received certificates dated the Initial Funding Date and signed by a Financial Officer confirming the application of funds provided for in the immediately preceding paragraph, none satisfaction of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than conditions precedent set forth in (i) Indebtedness incurred under the Loan Documentsparagraph (g) of this Section 4.02, and (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, in paragraphs (iii) intercompany Indebtedness permitted under Section 6.1(cb) and (ivc) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.of Section 4.03 (
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on or following the Effective Date on which each of the following conditions is shall be satisfied (or waived in accordance with Section 10.29.08):
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the The Administrative Agent shall have received:
received a written opinion (addressed to the Arrangers, the Administrative Agent, the Issuers and the Lenders) of each of (i) a certificate of Bidco signed by a director certifying:
(1) Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for Holdings, the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme Borrower and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs Restricted Subsidiaries, (ii) subject to the penultimate paragraph of this Section, local counsel in each jurisdiction where a Loan Party is organized, where Mortgaged Property is located or which provides the governing law for any Foreign Pledge Agreement or Foreign Security Agreement, and the laws of which are not covered by the opinion letter referred to in clause (vi) below is correctof this paragraph, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy senior legal counsel of Alcoa or Holdings, in each case, (A) dated as of the certificate Initial Funding Date and (B) in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedBorrower hereby requests such counsel to deliver such opinions.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the The Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) received such documents and certificates as the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted Administrative Agent or its counsel may reasonably request relating to the shareholders organization, existence and good standing (or equivalent concepts in any applicable jurisdiction) of ClinPhone;
(3) that each Loan Party, the conditions applicable authorization of the Transactions and any other legal matters relating to the ClinPhone Acquisition have been satisfied Loan Parties, the Loan Documents or waived the Transactions, all in accordance with their terms form and substance reasonably satisfactory to the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete Administrative Agent and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documentsits counsel.
(c) In The Administrative Agent shall have received certificates dated the case Initial Funding Date and signed by a Financial Officer of a Borrowing to be made by any the Borrower other than Bidcoconfirming the satisfaction of the conditions precedent set forth in (i) paragraph (g) of this Section, Bidco has consented to such Borrowingand (ii) in paragraphs (b) and (c) of Section 4.03.
(d) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoicedinvoiced at least three Business Days prior to the Initial Funding Date, including reimbursement or payment payments of all reasonable and documented out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder, under any other Loan Document or under any other engagement letter or fee letter relating to this Agreement and entered into by any of the Arrangers, the Administrative Borrower hereunderAgent and the Lenders, on the one hand, and any of the Loan Parties or Alcoa, on the other hand.
(e) Subject to the penultimate paragraph of this Section and the Guaranty and Security Principles, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent, on behalf of the Secured Parties, shall have a security interest in the Collateral of the type and priority described in each Security Document, including, notwithstanding anything to the contrary set forth herein or in any other Loan Document, a perfected first-priority pledge of the equity interests of each AWAC Parent. The Administrative Agent shall have received a completed Perfection Certificate relating to (i) the US Obligations Loan Parties (other than the Borrower and Aluminerie Lauralco, Sàrl) and (ii) subject to the penultimate paragraph of this Section and to the extent required by the definition of “Perfection Certificate”, the other Loan Parties, in each case of (i) and (ii), dated the Initial Funding Date and signed by each of a Financial Officer or legal officer of Holdings and signed by a Financial Officera managing director of the Borrower, together with all attachments contemplated thereby. The Administrative Agent shall also have received, the results of searches of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in any applicable Specified Collateral Jurisdictions and copies of the financing statements (or similar documents) disclosed by such search, together with Federal and State (or other relevant) tax lien searches and judgment lien searches in respect of the Loan Parties and their respective assets in those jurisdictions reasonably requested by the Administrative Agent, and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) and other lien search results are permitted by Section 6.02 or have been or will contemporaneously with the initial funding of Loans on the Initial Funding Date be released or terminated.
(f) Subject to the penultimate paragraph of this Section, the Administrative Agent shall have received evidence that the insurance and endorsements thereto required by Section 5.06 and the Security Documents is in effect.
(g) The Transactions and all conditions to the Spin-Off set forth in the Form 10 (other than the ability to borrow under the Facility) shall have been consummated or satisfied, or shall be consummated or satisfied substantially concurrently with the initial borrowing under the Facility, in accordance with applicable law and, in all material respects, consistent with the information set forth in the Effective Date Form 10.
(h) The Administrative Agent shall have received prior to the Spin-Off Date true and complete copies of the Effective Date Spin-Off Documents.
(i) There shall be no material payments or distributions by Holdings or any of its subsidiaries to Alcoa or any of Alcoa’s subsidiaries in connection with the Spin-Off, other than (i) as described in the Effective Date Form 10 or (ii) solely to the extent reflected in the projections provided to the Lenders prior to the date of the Engagement Letter, in respect of the Yadkin Facility.
(j) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any Restricted Subsidiary shall have outstanding any shares of preferred stock or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Other Permitted Initial Funding Date Indebtedness and (iii) Indebtedness set forth on Schedulepermitted under Section 6.01.
(k) The Lenders shall have received either (a) a certificate of a from the Chief Financial Officer of Holdings, substantially in the form of Exhibit H, certifying as to the solvency of Holdings, the Borrower and the Subsidiaries, on a consolidated basis, after giving effect to the Transactions or (b) a solvency opinion, in form and substance and from an independent evaluation firm satisfactory to the Administrative Agent; provided that the solvency opinion delivered to the board of directors of Alcoa, as described in the Form 10, shall be deemed to be satisfactory, if it is acceptable to the board of directors of Alcoa.
(l) Holdings shall have received minimum corporate ratings from Xxxxx’x and S&P of Ba3 and BB-, respectively.
(m) No action or event shall have occurred during the period from and including the Effective Date to and including the Initial Funding Date which would have constituted a non-compliance by Holdings or the Borrower certifying that with Section 6.02 as if the covenants therein had been effective from and including the Effective Date; provided that, if any such action or event shall have occurred, the condition precedent in this paragraph shall nonetheless be satisfied if such action or event has been cured with respect to such covenant such that, as of the Initial Funding Date, Holdings and the Borrower are in compliance with such covenant. Notwithstanding the foregoing, if (1a) a portion Holdings and the Borrower shall have used commercially reasonable efforts to deliver, but shall nevertheless be unable to deliver, any of the Perfection Certificates required by clause (or alle)(ii) of this Section, then such delivery shall not be a condition precedent to the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) obligations of the definition of Certain Funds Purpose), (2) in Lenders and the case of a Borrowing to be made Issuers hereunder on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit but shall be required to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that delivered in accordance with the representation made in the last paragraph provisions of Section 4.2 shall be true and 5.16 (3“Post-Initial Funding Date Matters”), (b)(i) on the date any security interest in any asset (other than any Excluded Asset) of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing any Loan Party or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all any guarantee by any Loan Party that is a Foreign Subsidiary is not or cannot be provided or perfected on the Certain Funds Representations are trueInitial Funding Date (in the case of (b)(i), other than the creation of and perfection (including by delivery of stock or other equity certificates, if any) of security interests (A) in the Equity Interests in, or intercompany debt owing to, any Restricted Subsidiary that is not a Foreign Subsidiary and in intercompany debt (in each case, except to the extent constituting Excluded Assets) and (B) in other assets with respect to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after Holdings’s and the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the perfection of a security interest in such assets or provision of guarantee by such Loan Party shall not constitute a condition precedent to the obligations of the Lenders and the Issuers hereunder on the Initial Funding Date, but instead shall be required to be provided or delivered in accordance with the provisions of Section 5.16 (“Post-Initial Funding Date Matters”) and (c) Holdings and the Borrower shall have used commercially reasonable efforts to procure and deliver, but shall nevertheless be unable to deliver, evidence that the insurance and endorsements thereto required by Section 5.06 (“Insurance”) and the Security Documents is in effect (other than with respect to flood insurance in respect of Mortgaged Properties located in a US Jurisdiction that is required under applicable law), then such delivery shall not be a condition precedent to the obligations of the Lenders and the Issuers hereunder on the Initial Funding Date, but shall be required to be provided and delivered in accordance with the provisions of Section 5.16 (“Post-Initial Funding Date Matters”). The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is shall have been satisfied (or waived pursuant to in accordance with Section 10.29.08) at or prior to 3:00 5:00 p.m., New York City time, on the Initial Funding DateOutside Date (and, and at in the event such conditions are not so satisfied or prior to 3:00 p.m.waived, New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all shall terminate at such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000time).
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make Loans hereunder shall be subject to the initial Loans and satisfaction (or waiver in accordance with Section 9.02) of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2):conditions:
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the The Administrative Agent (or its counsel) shall have received:
received from each party hereto either (i) a certificate counterpart of Bidco this Agreement and of each Transaction Document signed by a director certifying:
on behalf of the party thereto or (1ii) written evidence satisfactory to the date on which the Announcement Date occurred Administrative Agent (which shall be may include telecopy transmission of a date on or prior to the tenth calendar day after the date signed signature page of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms such party has signed a counterpart of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedTransaction Document.
(b) If The Administrative Agent shall have received a favorable written opinion (addressed to the Offer Conversion has occurred, prior to or on Administrative Agent and the Lenders and dated the Initial Funding Date) of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent shall have received:
(i) a certificate Borrower, substantially in the form of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted Exhibit E. The Borrower hereby requests such counsel to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documentsdeliver such opinion.
(c) In The Administrative Agent shall have received such documents and certificates as the case Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of a Borrowing the Borrower, the authorization of the Transactions and any other legal matters relating to be made by any Borrower other than Bidcothe Borrower, Bidco has consented this Agreement or the Transactions that the Administrative Agent shall reasonably request, all in form and substance reasonably satisfactory to such Borrowingthe Administrative Agent and its counsel.
(d) The Administrative Agent shall have received all fees a certificate, dated the Initial Funding Date and other amounts due signed by the President, a Vice President or a Financial Officer of the Borrower that:
(i) The Borrower is in compliance with the conditions set forth in paragraphs (a) and payable pursuant (b) of Section 4.02;
(ii) Each Person that has executed this Agreement or any Transaction Document is an elected or appointed officer of the Borrower and is authorized to executed this Agreement and each of the Syndication Transaction Documents, as the case may be; and
(iii) The Borrower represents and Fee Letter on or warrants to the Lenders that:
(A) the underwriting and exchange agreements giving effect to the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) have been executed and delivered substantially as described in Schedule 3.12 and are in the form reviewed prior to the Initial Funding DateDate by the Joint Lead Arrangers and are in full force and effect without any defaults or breaches thereunder that would cause any of the conditions to closing of the IPO not to be satisfied, includingand none of the terms or conditions of such documentation have been amended, waived or otherwise modified in a manner that would, in the reasonable judgment of the Joint Lead Arrangers, be materially adverse to the extent invoicedLenders without the Joint Lead Arrangers' consent;
(B) the IPO has been completed on terms and conditions substantially as described in Schedule 3.12; and
(C) the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) are within the Borrower's corporate powers and have been duly authorized by all necessary corporate and, reimbursement or payment if required, stockholder action on the part of all out-of-pocket expenses required to be reimbursed or paid the Borrower, and each such agreement has been duly executed and delivered by the Administrative Borrower hereunderand constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The Administrative Agent shall have received a certificate of a Financial Officer from the chief financial officer of the Administrative Borrower certifying that (1) a portion (or all) of to the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose)effect that, (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders as of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments after giving effect to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date Loans and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of all estimated legal, investment banking, accounting and other fees related thereto, the foregoing amounts until they are paid in full. Borrower and each Significant Subsidiary is Solvent.
(f) The Administrative Borrower represents Agent or the Joint Lead Arrangers, as the case may be, shall have received all costs, fees, expenses (including reasonable out-of-pocket legal fees and covenants that, after the borrowings on the Initial Funding Date expenses and the application reasonable out-of-pocket fees and expenses of funds provided for in appraisers, consultants and other advisors) and other compensation then payable to the immediately preceding paragraphAdministrative Agent or the Joint Lead Arrangers, none including any arrangement fees, or any fees payable to the Lenders with respect to their respective Total Commitments.
(g) The Administrative Agent shall have received satisfactory confirmation of the Borrowers applicable public long-term ratings assigned to the Borrower from S&P and Xxxxx'x for the Loans, which shall be no less than "BBB+" and "Ba1", respectively, and with a stable or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000positive outlook.
Appears in 1 contract
Samples: Bridge Credit Agreement (Medco Health Solutions Inc)
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on hereunder shall be subject to the Initial Funding Date hereunder and satisfaction (or waiver in accordance with Section 9.02) of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2):conditions:
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the The Administrative Agent (or its counsel) shall have received:
received from each party hereto either (i) a certificate counterpart of Bidco this Agreement and of each Transaction Document signed by a director certifying:
on behalf of the party thereto or (1ii) written evidence satisfactory to the date on which the Announcement Date occurred Administrative Agent (which shall be may include telecopy transmission of a date on or prior to the tenth calendar day after the date signed signature page of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms such party has signed a counterpart of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedTransaction Document.
(b) If The Administrative Agent shall have received a favorable written opinion (addressed to the Offer Conversion has occurred, prior to or on Administrative Agent and the Lenders and dated the Initial Funding Date) of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent shall have received:
(i) a certificate Borrower, substantially in the form of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted Exhibit H. The Borrower hereby requests such counsel to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documentsdeliver such opinion.
(c) In The Administrative Agent shall have received such documents and certificates as the case Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of a Borrowing the Borrower, the authorization of the Transactions and any other legal matters relating to be made by any Borrower other than Bidcothe Borrower, Bidco has consented this Agreement or the Transactions that the Administrative Agent shall reasonably request, all in form and substance reasonably satisfactory to such Borrowingthe Administrative Agent and its counsel.
(d) The Administrative Agent shall have received all fees a certificate, dated the Initial Funding Date and other amounts due signed by the President, a Vice President or a Financial Officer of the Borrower that:
(i) The Borrower is in compliance with the conditions set forth in paragraphs (a) and payable pursuant (b) of Section 4.02;
(ii) Each Person that has executed this Agreement or any Transaction Document is an elected or appointed officer of the Borrower and is authorized to executed this Agreement and each of the Syndication Transaction Documents, as the case may be; and
(iii) The Borrower represents and Fee Letter on or warrants to the Lenders that:
(A) the underwriting and exchange agreements giving effect to the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) have been executed and delivered substantially as described in Schedule 3.12 and are in the form reviewed prior to the Initial Funding DateDate by the Joint Lead Arrangers and are in full force and effect without any defaults or breaches thereunder that would cause any of the conditions to closing of the IPO not to be satisfied, includingand none of the terms or conditions of such documentation shall have been amended, waived or otherwise modified in a manner that would, in the reasonable judgment of the Joint Lead Arrangers, be materially adverse to the extent invoicedLenders without the Joint Lead Arrangers' consent;
(B) the IPO has been completed on terms and conditions substantially as described in Schedule 3.12; and
(C) the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) are within the Borrower's corporate powers and have been duly authorized by all necessary corporate and, reimbursement or payment if required, stockholder action on the part of all out-of-pocket expenses required to be reimbursed or paid the Borrower, and each such agreement has been duly executed and delivered by the Administrative Borrower hereunderand constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The Administrative Agent shall have received a certificate of a Financial Officer from the chief financial officer of the Administrative Borrower certifying that (1) a portion (or all) of to the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose)effect that, (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders as of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments after giving effect to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date Loans and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of all estimated legal, investment banking, accounting and other fees related thereto, the foregoing amounts until they are paid in full. Borrower and each Significant Subsidiary is Solvent.
(f) The Administrative Borrower represents Agent or the Joint Lead Arrangers, as the case may be, shall have received all costs, fees, expenses (including reasonable out-of-pocket legal fees and covenants that, after the borrowings on the Initial Funding Date expenses and the application reasonable out-of-pocket fees and expenses of funds provided for in appraisers, consultants and other advisors) and other compensation then payable to the immediately preceding paragraphAdministrative Agent or the Joint Lead Arrangers, none including any arrangement fees, or any fees payable to the Lenders with respect to their respective Total Commitments.
(g) The Administrative Agent shall have received satisfactory confirmation of the Borrowers applicable public long-term ratings assigned to the Borrower from S&P and Xxxxx'x for the Loans, which shall be no less than "BBB+" and "Ba1", respectively, and with a stable or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000positive outlook.
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date Term Loan hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the time and date (such time and date, the “Initial Funding Date”) on which each of the following conditions is satisfied (or waived in accordance with Section 10.29.02); provided that the Initial Funding shall occur no earlier than April 10, 2008 (it being understood and agreed that if on the Initial Funding Date the Transaction Closing Date has not occurred, then the proceeds of the Term Loans shall be deposited directly into the Collateral Account on such date):
(a) If The Administrative Agent shall have received a copy of the Offer Conversion articles or certificate of incorporation (or equivalent organizational document) of the Borrower, certified as of a recent date by the Secretary of State of the state of organization of the Borrower, together with certificates of such official attesting to the good standing of the Borrower;
(b) The Administrative Agent shall have received a certificate, dated the Initial Funding Date, of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of each officer of the Borrower that has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of the Borrower, (B) the by-laws (or equivalent organizational document) of the Borrower as in effect on the date of such certification, (C) the resolutions of the Borrower’s board of directors approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, and (D) that there have been no changes in the certificate of incorporation (or equivalent organizational document) of the Borrower from the certificate of incorporation (or equivalent organizational document) delivered pursuant to paragraph (a) above;
(c) The Administrative Agent shall have received, for the account of each Lender requesting the same at least two (2) Business Days prior to the Initial Funding Date, a Promissory Note (which may for purposes of this Section 4.01(c) be a copy delivered by facsimile or electronic “.pdf” transmission to be followed promptly with an original of such Promissory Note by overnight courier or messenger) of the Borrower conforming to the requirements of Section 2.09(e) herein;
(d) The Borrower, Cadbury and their respective Affiliates shall have complied in all material respects (and shall be deemed to have so complied if they have not occurredreceived written notice of any material non-compliance) with the Fee and Syndication Letter; provided, however, that if, on or prior to the Transaction Funding Date, (i) the Borrower, Cadbury or any such Affiliate failed to comply with Section 3 thereof (other than the requirements set forth in clauses (c) and (d) of the second paragraph and in the last paragraph thereunder) and (ii) the Borrower, Cadbury and/or their respective Affiliates cured such non-compliance within two (2) Business Days of receipt of such notice, then the Borrower shall be deemed to have complied with the Fee and Syndication Letter for purposes of this clause (d);
(e) At least five (5) Business Days prior to the Initial Funding Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested by the Lenders at least ten (10) Business Days prior to the Initial Funding Date;
(f) The Administrative Agent shall have received:
received a favorable written opinion dated the Initial Funding Date (i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior addressed to the tenth calendar day after Administrative Agent and the date Lenders and dated the Initial Funding Date) of this Agreement)Shearman & Sterling LLP, counsel for the Loan Parties, substantially in the form of Exhibit B. The Administrative Agent also shall have received a copy of a written opinion dated the Initial Funding Date (addressed to Cadbury) of Shearman & Sterling LLP, counsel to Cadbury, covering such matters as have been previously agreed between Shearman & Sterling LLP and each of the Bookrunners, in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions;
(2g) The Administrative Agent shall have received a certificate from a Financial Officer of the date Borrower dated the Initial Funding Date certifying that on which such date, the Scheme Circular was posted to Borrower and its subsidiaries (on a consolidated basis) are Solvent, both before, and on a pro forma basis after giving effect to, the shareholders of ClinPhoneTransactions;
(3A) The representations and warranties set forth in Sections 3.01(a), 3.02, 3.03, 3.04(a), 3.05, 3.06(a)(i), 3.07, 3.08, 3.09, 3.10, 3.11 and 3.12 shall be true and correct in all material respects on and as of the date that Initial Funding Date; (B) at the Court has sanctioned the Scheme time of and the Capital Reduction relating immediately after giving effect to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or Borrowing on the Initial Funding Date, (x) no Default as a result of the Borrower’s failure to observe or perform any covenant, condition or agreement contained in Sections 5.02, 5.03(a) (with respect to the Borrower’s existence only), 5.03(b), 5.04, 5.05, 5.08 or in Article VI (other than for avoidance of doubt, Section 6.04) shall have occurred and be continuing, (y) no Event of Default under clause (c) of Article VII with respect to any representation and warranty under Article III made by the Borrower on the Effective Date shall have occurred, and (z) no Event of Default under clauses (h), (i) or (j) of Article VII shall have occurred and be continuing and (C) the Administrative Agent shall have received:received a certificate, dated the Initial Funding Date and signed by the president, a vice president or Financial Officer of the Borrower, confirming compliance with the conditions contained in clauses (A) and (B) above.
(i) The Index Debt and the corporate ratings of the Borrower shall be rated at least “BBB-”, which rating may be subject to a certificate of Bidco signed by a director certifying:
(1) the date on “negative outlook” from S&P but not subject to “negative watch” or “development” and “Baa3” from Mxxxx’x, which the Announcement Date occurredrating shall be stable and not subject to “negative watch”, “negative outlook” or “development”;
(2j) The Borrower has received (i) proceeds from the date on which issuance of the Takeover Offer Document was posted Senior Notes or from borrowings under the Bridge Loan Agreement of at least $2,000,000,000 (less transaction costs and original issue discount incurred in connection therewith) or (ii) commitments to fund the Bridge Loan from the Bookrunners subject only to the shareholders satisfaction of ClinPhoneconditions substantially similar to those set forth in Section 4.03 of this Agreement;
(3k) Each of the Bookrunners shall have received and be satisfied with (i) the audited combined financial statements of the Borrower for the fiscal year ending December 31, 2007, which such audited financial statements may exclude (A) guarantor/non-guarantor financial information and (B) quarterly financial information for completed fiscal periods (it being understood that the conditions applicable financial information for the fiscal years ending December 31, 2006 and January 1, 2006 presented with the financial information for the fiscal year ending December 31, 2007 will be the same in all material respects as that contained in the Registration Statement) (the “Audited Financial Statements”) and (ii) unaudited pro forma combined balance sheets of the Borrower and its Subsidiaries as of December 31, 2007 and unaudited pro forma statement of operations for the fiscal year ended December 31, 2007, adjusted to give effect to the ClinPhone Acquisition have been satisfied or waived consummation of the Transactions as if such Transactions, with respect to the pro forma combined balance sheets had occurred on December 31, 2007 and with respect to the pro forma statement of operations had occurred on January 1, 2007, to the extent permitted under Regulation S-X and related SEC and other applicable guidance (together, the “Pro Forma Financial Statements”). The Audited Financial Statements shall be prepared, in all material respects in accordance with their terms GAAP and with Regulation S-X and the terms Pro-Forma Financial Statements shall be prepared, in all material respects in accordance with Regulation S-X and related SEC and other applicable guidance and based on assumptions which are reasonably set forth therein. The Bookrunners shall be deemed to be satisfied with the Audited Financial Statements if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the Audited Financial Statements within three (3) Business Days following delivery of this Agreement the Audited Financial Statements. Following the delivery of the Audited Financial Statements, the Borrower shall provide the Bookrunners with an opportunity, by telephone or otherwise agreed otherwise, to conduct customary auditor due diligence with representatives of the Borrower during which representatives of Deloitte & Touche LLP will be present (in person or by telephone) and participate in a customary manner, the Initial Lendersresult of which the Bookrunners shall be satisfied with. Each of the Bookrunners agrees to have its representatives available for the auditor due diligence promptly following the delivery of the Audited Financial Statements and each of the Bookrunners agrees to not unreasonably delay the completion of the auditor due diligence. The Bookrunners shall be deemed to be satisfied with the auditor due diligence if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the results of the auditor due diligence within two (2) Business Days following completion of the auditor due diligence; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(dl) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees and expenses of counsel) required to be reimbursed or paid by the Administrative Borrower hereunder.
(e) The Administrative Agent shall have received a certificate of a Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make the Term Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.29.02) at or prior to 3:00 p.m., New York City time, on the Initial Funding DateEarly Commitment Termination Date (and, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at or prior such time). Notwithstanding any other provision of this Agreement, the only condition precedent to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation Loans on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions are those set forth in this Section 4.2 have been satisfied as 4.02. Notwithstanding any other provision of this Agreement, the only conditions precedent to the depositing of the Term Loans into the Collateral Account on the Initial Funding Date and as are those set forth in this Section 4.02 and, if such conditions are satisfied, no additional conditions, including without limitation the absence of any other breaches or defaults under the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off Loan Documents or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other representations under the Loan Document Documents or the Separation Documents, shall be a condition precedent to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry depositing of the Certain Funds Period all such rights, remedies and entitlements shall be available to Term Loans into the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans Collateral Account on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.
Appears in 1 contract
Initial Funding Date. The This Agreement and the obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date Term Loan hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the time and date (such time and date, the “Initial Funding Date”) on which each of the following conditions is satisfied (or waived in accordance with Section 10.29.02); provided that the Initial Funding shall occur no earlier than April 10, 2008 (it being understood and agreed that if on the Initial Funding Date the Transaction Closing Date has not occurred, then the proceeds of the Term Loans shall be deposited directly into the Collateral Account on such date):
(a) If The Administrative Agent shall have received a copy of the Offer Conversion articles or certificate of incorporation (or equivalent organizational document) of the Borrower, certified as of a recent date by the Secretary of State of the state of organization of the Borrower, together with certificates of such official attesting to the good standing of the Borrower;
(b) The Administrative Agent shall have received a certificate, dated the Initial Funding Date, of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of each officer of the Borrower that has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of the Borrower, (B) the by-laws (or equivalent organizational document) of the Borrower as in effect on the date of such certification, (C) the resolutions of the Borrower’s board of directors approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, and (D) that there have been no changes in the certificate of incorporation (or equivalent organizational document) of the Borrower from the certificate of incorporation (or equivalent organizational document) delivered pursuant to paragraph (a) above;
(c) The Administrative Agent shall have received, for the account of each Lender requesting the same at least two (2) Business Days prior to the Initial Funding Date, a Promissory Note (which may for purposes of this Section 4.02(c) be a copy delivered by facsimile or electronic “.pdf” transmission to be followed promptly with an original of such Promissory Note by overnight courier or messenger) of the Borrower conforming to the requirements of Section 2.09(e) herein;
(d) The Borrower, Cadbury and their respective Affiliates shall have complied in all material respects (and shall be deemed to have so complied if they have not occurredreceived written notice of any material non-compliance) with the Fee and Syndication Letter; provided, however, that if, on or prior to the Transaction Closing Date, (i) the Borrower, Cadbury or any such Affiliate failed to comply with Section 3 thereof (other than the requirements set forth in clauses (c) and (d) of the second paragraph and in the last paragraph thereunder) and (ii) the Borrower, Cadbury and/or their respective Affiliates cured such non-compliance within two (2) Business Days of receipt of such notice, then the Borrower shall be deemed to have complied with the Fee and Syndication Letter for purposes of this clause (d);
(e) At least five (5) Business Days prior to the Initial Funding Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested by the Lenders at least ten (10) Business Days prior to the Initial Funding Date;
(f) The Administrative Agent shall have received:
received a favorable written opinion dated the Initial Funding Date (i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior addressed to the tenth calendar day after Administrative Agent and the date Lenders and dated the Initial Funding Date) of this Agreement)Shearman & Sterling LLP, counsel for the Loan Parties, substantially in the form of Exhibit B. The Administrative Agent also shall have received a copy of a written opinion dated the Initial Funding Date (addressed to Cadbury) of Shearman & Sterling LLP, counsel to Cadbury, covering such matters as have been previously agreed between Shearman & Sterling LLP and each of the Bookrunners, in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions;
(2g) The Administrative Agent shall have received a certificate from a Financial Officer of the date Borrower dated the Initial Funding Date certifying that on which such date, the Scheme Circular was posted to Borrower and its subsidiaries (on a consolidated basis) are Solvent, both before, and on a pro forma basis after giving effect to, the shareholders of ClinPhoneTransactions;
(3A) The representations and warranties set forth in Sections 3.01(a), 3.02, 3.03, 3.04(a), 3.05, 3.06(a)(i), 3.07, 3.08, 3.09, 3.10, 3.11 and 3.12 shall be true and correct in all material respects on and as of the date that Initial Funding Date; (B) at the Court has sanctioned the Scheme time of and the Capital Reduction relating immediately after giving effect to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or Borrowing on the Initial Funding Date, (x) no Default as a result of the Borrower’s failure to observe or perform any covenant, condition or agreement contained in Sections 5.02, 5.03(a) (with respect to the Borrower’s existence only), 5.03(b), 5.04, 5.05, 5.08 or in Article VI (other than for avoidance of doubt, Section 6.04) shall have occurred and be continuing, (y) no Event of Default under clause (c) of Article VII with respect to any representation and warranty under Article III made by the Borrower on the Effective Date shall have occurred, and (z) no Event of Default under clauses (h), (i) or (j) of Article VII shall have occurred and be continuing and (C) the Administrative Agent shall have received:received a certificate, dated the Initial Funding Date and signed by the president, a vice president or Financial Officer of the Borrower, confirming compliance with the conditions contained in clauses (A) and (B) above.
(i) The Index Debt and the corporate ratings of the Borrower shall be rated at least “BBB-”, which rating may be subject to a certificate of Bidco signed by a director certifying:
(1) the date on “negative outlook” from S&P but not subject to “negative watch” or “development” and “Baa3” from Mxxxx’x, which the Announcement Date occurredrating shall be stable and not subject to “negative watch”, “negative outlook” or “development”;
(2j) The Borrower has received (i) proceeds from the date on which issuance of the Takeover Offer Document was posted Senior Notes or from borrowings under the Bridge Loan Agreement of at least $1,700,000,000 (less transaction costs and original issue discount incurred in connection therewith) or (ii) commitments to fund the Bridge Loan from the Bookrunners subject only to the shareholders satisfaction of ClinPhoneconditions substantially similar to those set forth in Section 4.03 of this Agreement;
(3k) Each of the Bookrunners shall have received and be satisfied with (i) the audited combined financial statements of the Borrower for the fiscal year ending December 31, 2007, which such audited financial statements may exclude (A) guarantor/non-guarantor financial information and (B) quarterly financial information for completed fiscal periods (it being understood that the conditions applicable financial information for the fiscal years ending December 31, 2006 and January 1, 2006 presented with the financial information for the fiscal year ending December 31, 2007 will be the same in all material respects as that contained in the Registration Statement) (the “Audited Financial Statements”) and (ii) unaudited pro forma combined balance sheets of the Borrower and its Subsidiaries as of December 31, 2007 and unaudited pro forma statement of operations for the fiscal year ended December 31, 2007, adjusted to give effect to the ClinPhone Acquisition have been satisfied or waived consummation of the Transactions as if such Transactions, with respect to the pro forma combined balance sheets had occurred on December 31, 2007 and with respect to the pro forma statement of operations had occurred on January 1, 2007, to the extent permitted under Regulation S-X and related SEC and other applicable guidance (together, the “Pro Forma Financial Statements”). The Audited Financial Statements shall be prepared, in all material respects in accordance with their terms GAAP and with Regulation S-X and the terms Pro-Forma Financial Statements shall be prepared, in all material respects in accordance with Regulation S-X and related SEC and other applicable guidance and based on assumptions which are reasonably set forth therein. The Bookrunners shall be deemed to be satisfied with the Audited Financial Statements if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the Audited Financial Statements within three (3) Business Days following delivery of this Agreement the Audited Financial Statements. Following the delivery of the Audited Financial Statements, the Borrower shall provide the Bookrunners with an opportunity, by telephone or otherwise agreed otherwise, to conduct customary auditor due diligence with representatives of the Borrower during which representatives of Deloitte & Touche LLP will be present (in person or by telephone) and participate in a customary manner, the Initial Lendersresult of which the Bookrunners shall be satisfied with. Each of the Bookrunners agrees to have its representatives available for the auditor due diligence promptly following the delivery of the Audited Financial Statements and each of the Bookrunners agrees to not unreasonably delay the completion of the auditor due diligence. The Bookrunners shall be deemed to be satisfied with the auditor due diligence if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the results of the auditor due diligence within two (2) Business Days following completion of the auditor due diligence; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(dl) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees and expenses of counsel) required to be reimbursed or paid by the Administrative Borrower hereunder.
(e) The Administrative Agent shall have received a certificate of a Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make the Term Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.29.02) at or prior to 3:00 p.m., New York City time, on the Initial Funding DateEarly Commitment Termination Date (and, and in the event such conditions are not so satisfied or waived, the Commitments shall terminate at or prior such time). Notwithstanding any other provision of this Agreement, the only condition precedent to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation Loans on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions are those set forth in this Section 4.2 have been satisfied as 4.02. Notwithstanding any other provision of this Agreement, the only conditions precedent to the depositing of the Term Loans into the Collateral Account on the Initial Funding Date and as are those set forth in this Section 4.02 and, if such conditions are satisfied, no additional conditions, including without limitation the absence of any other breaches or defaults under the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off Loan Documents or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other representations under the Loan Document Documents or the Separation Documents, shall be a condition precedent to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry depositing of the Certain Funds Period all such rights, remedies and entitlements shall be available to Term Loans into the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans Collateral Account on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.
Appears in 1 contract
Initial Funding Date. The obligations obligation of the Lenders each UST Tranche B Term Lender to make the initial UST Tranche B Term Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and shall be subject to the occurrence of the Lenders Effective Date and satisfaction (or waiver pursuant to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each Article 9) of the following conditions is satisfied (or waived in accordance with Section 10.2):precedent:
(a) If Each Lender that has requested a Term Note at least two Business Days in advance of the Offer Conversion has not occurredEffective Date shall have received such Term Note executed by the Borrower in favor of such Lender, properly executed by each Responsible Officer of the Borrower, dated as of the Effective Date.
(b) The Administrative Agent and the Required Lenders shall have received, on or prior to behalf of themselves, the Collateral Agent and the Lenders, an opinion of (i) Xxxxxxxx & Xxxxx LLP, counsel for the Loan Parties, and (ii) from each local counsel for the Loan Parties listed on Schedule 4.02(b), in each case, dated the Initial Funding DateDate and addressed to the Administrative Agent, the Collateral Agent and the Lenders and in customary form and substance, and the Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent and the Required Lenders shall have received:
received (i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate or articles of incorporation or organization or certificate of formation, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the Register state of Companies confirming registration of the order of the Court sanctioning the Scheme its organization, and a copy of that order of certificate as to the Court;
good standing (iv) a copy of to the certificate of registration from the Registrar of Companies under section 138(4extent applicable) of the Companies Xxx 0000 and each Loan Party as of a copy recent date, from such Secretary of the order of the Court and minute which is the subject of that certificateState or similar Governmental Authority; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received:
(iii) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied Secretary or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy Assistant Secretary of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(d) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to Loan Party dated the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower hereunder.
Date and certifying (eA) The Administrative Agent shall have received that attached thereto is a certificate of a Financial Officer true and complete copy of the Administrative Borrower certifying that (1) a portion by-laws or operating (or alllimited liability company) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder agreement of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made Loan Party as in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans effect on the Initial Funding Date and at all times since a date prior to the date of the Issuing Bank to issue Letters resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of Credit hereunder resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Lenders Loan Documents to make Loans which such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or organization or certificate of formation of such Loan Party have not been amended since the date of the last amendment thereto shown on the Acquisition Consideration Payment Date shall not become effective unless each certificate of the foregoing conditions is satisfied (or waived good standing furnished pursuant to Section 10.2clause (i) at above, (D) as to the incumbency and specimen signature of each officer executing any Loan Document or prior to 3:00 p.m., New York City time, any other document delivered in connection herewith on behalf of such Loan Party on the Initial Funding Date, and at (E) as to the absence of any proceeding for the dissolution or prior to 3:00 p.m., New York City time, on the last day liquidation of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
such Loan Party; and (iii) cancel any a certificate of its Commitments another officer as to the extent incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to do so would prevent or limit the making of a Certain Funds Utilisation;clause (ii) above.
(ivi) rescindThe Administrative Agent and the Required Lenders shall have received the results of (x) searches of the Uniform Commercial Code filings (or equivalent filings) and (y) judgment and tax lien searches, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the made with respect to each Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate Party in the making states or other jurisdictions of a Certain Funds Utilisation formation of such Loan Party and with respect to such other locations and names listed on the Initial Funding Date Perfection Certificate, together with copies of the financing statements (or on similar documents) disclosed by such search and (ii) each of the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 Intellectual Property Security Agreement shall have been satisfied as of the Initial Funding Date duly executed and as of the Acquisition Consideration Payment Datedelivered by each Loan Party that is to be a party thereto, respectively;
together with (vix) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premiumcertificates, if any, interest, fees representing the Equity Interests pledged by the Borrower and other amounts due or outstanding under the Existing Credit Agreement Guarantors accompanied by undated stock powers executed in blank and (y) copies of documents and instruments to be paid in fullrecorded or filed that the Required Lenders may deem, subject to Section 6.13, reasonably necessary to satisfy the commitments thereunder to be terminated Collateral and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000Guarantee Requirement.
Appears in 1 contract
Initial Funding Date. The obligations of (i) the Lenders (including the Swingline Lender) to make the initial Loans and of the (ii) any Issuing Bank to issue the initial Letters of Credit on or increase the Initial Funding Date stated amounts of Letters of Credit hereunder and of are subject to the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each satisfaction (or waiver in accordance with Section 10.08) of the following conditions is satisfied (or waived in accordance with Section 10.2):on the date of the initial Credit Event hereunder:
(a) If the Offer Conversion has not occurredThe Administrative Agent shall have received, on or prior behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a written opinion of Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Initial Funding Administrative Agent, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent shall have received:
and the Lenders, and (iC) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior in form and substance reasonably satisfactory to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme Administrative Agent and the Capital Reduction covering such other matters relating to the Scheme and that Loan Documents as the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedAdministrative Agent shall reasonably request.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or memorandum and articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (or similar concept, to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party 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 similar officer of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing 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 Loan Party (or its managing general partner or managing member or equivalent body) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or memorandum and articles of incorporation, certificate of limited partnership or certificate of formation or other equivalent governing document of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(c) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received the results of a search of the Uniform Commercial Code (and federal tax Liens) filings made with respect to the Loan Parties in the relevant jurisdictions of organization and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been released, or shall be released upon the funding of the Loans or the issuance of the initial Letters of Credit hereunder.
(d) The Borrower, Holdings, the Subsidiary Loan Parties, the Administrative Agent and Wilmington Trust Company, as Trustee, shall have executed the Joinder, and the Administrative Agent shall have received fully executed copies (which may be electronic copies) thereof.
(e) On or prior to the Initial Borrowing Date and substantially concurrently with the incurrence of Loans and the use of such Loans to refinance the extensions of credit under the Existing Credit Facility Agreement on such date, all Indebtedness of Holdings and its subsidiaries under the Existing Credit Facility Agreement shall have been repaid in full, together with all fees and other amounts owing thereon, all commitments under the Existing Credit Facility Agreement shall have been terminated, and all letters of credit issued pursuant to the Existing Credit Facility Agreement (other than the Existing Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement or the Cash Flow Credit Agreement) shall have been terminated and the Administrative Agent shall have received reasonably satisfactory evidence of the same.
(f) On the Closing Date and substantially concurrently with the incurrence of Loans on such date, all security interests granted under the “Security Documents” (as defined in the Existing Credit Facility Agreement) shall have been terminated and released pursuant to release documentation reasonably satisfactory to the Administrative Agent.
(g) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter Loan Documents on or prior to the Initial Funding Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (including reasonable and documented fees, out-of-pocket expenses charges and disbursements of Dxxxx Xxxx & Wxxxxxxx LLP) required to be reimbursed or paid by the Administrative Borrower hereunderLoan Parties hereunder or under any Loan Document.
(eh) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Agreement.
(i) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(j) The Administrative Agent shall have received an executed Perfection Certificate dated as of the Closing Date.
(k) The Administrative Agent shall have received a Borrowing Base Certificate.
(l) The Senior Lien Intercreditor Agreement shall have been executed and delivered by the respective parties thereto.
(m) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings certifying that the Loan Parties, on a Financial Officer consolidated basis, after giving effect to the Transactions to occur on the Closing Date, are solvent. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Borrower certifying that (1) a portion (or all) of Agent responsible for the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under transactions contemplated by the Loan Documents it may shall have received notice from such Lender prior to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Closing Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 specifying its objection thereto and such Lender shall not have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be made available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following Administrative Agent such Lender’s ratable portion of the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, Borrowing (if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000).
Appears in 1 contract
Samples: Credit Agreement (Verso Paper Corp.)
Initial Funding Date. The obligations of the Lenders to make Loans hereunder shall be subject to the initial Loans and satisfaction (or waiver in accordance with Section 9.02) of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2):conditions:
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the The Administrative Agent (or its counsel) shall have received:
received from each party hereto either (i) a certificate counterpart of Bidco this Agreement and of each Transaction Document signed by a director certifying:
on behalf of the party thereto or (1ii) written evidence satisfactory to the date on which the Announcement Date occurred Administrative Agent (which shall be may include telecopy transmission of a date on or prior to the tenth calendar day after the date signed signature page of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms such party has signed a counterpart of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedTransaction Document.
(b) If The Administrative Agent shall have received a favorable written opinion (addressed to the Offer Conversion has occurred, prior to or on Administrative Agent and the Lenders and dated the Initial Funding Date) of Fried Xxxxx Xxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent shall have received:
(i) a certificate Borrower, substantially in the form of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted Exhibit F. The Borrower hereby requests such counsel to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documentsdeliver such opinion.
(c) In The Administrative Agent shall have received such documents and certificates as the case Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of a Borrowing the Borrower, the authorization of the Transactions and any other legal matters relating to be made by any Borrower other than Bidcothe Borrower, Bidco has consented this Agreement or the Transactions that the Administrative Agent shall reasonably request, all in form and substance reasonably satisfactory to such Borrowingthe Administrative Agent and its counsel.
(d) The Administrative Agent shall have received all fees a certificate, dated the Initial Funding Date and other amounts due signed by the President, a Vice President or a Financial Officer of the Borrower that:
(i) The Borrower is in compliance with the conditions set forth in paragraphs (a) and payable pursuant (b) of Section 4.02;
(ii) Each Person that has executed this Agreement or any Transaction Document is an elected or appointed officer of the Borrower and is authorized to executed this Agreement and each of the Syndication Transaction Documents, as the case may be; and
(iii) The Borrower represents and Fee Letter on or warrants to the Lenders that:
(A) the underwriting and exchange agreements giving effect to the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) have been executed and delivered substantially as described in Schedule 3.12 and are in the form reviewed prior to the Initial Funding DateDate by the Joint Lead Arrangers and are in full force and effect without any defaults or breaches thereunder that would cause any of the conditions to closing of the IPO not to be satisfied, includingand none of the terms or conditions of such documentation have been amended, waived or otherwise modified in a manner that would, in the reasonable judgment of the Joint Lead Arrangers, be materially adverse to the extent invoicedLenders without the Joint Lead Arrangers' consent;
(B) the IPO has been completed on terms and conditions substantially as described in Schedule 3.12; and
(C) the IPO and the separation and transition agreements with Merck (described in the IPO Prospectus) are within the Borrower's corporate powers and have been duly authorized by all necessary corporate and, reimbursement or payment if required, stockholder action on the part of all out-of-pocket expenses required to be reimbursed or paid the Borrower, and each such agreement has been duly executed and delivered by the Administrative Borrower hereunderand constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The Administrative Agent shall have received a certificate of a Financial Officer from the chief financial officer of the Administrative Borrower certifying that (1) a portion (or all) of to the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose)effect that, (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders as of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments after giving effect to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date Loans and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of all estimated legal, investment banking, accounting and other fees related thereto, the foregoing amounts until they are paid in full. Borrower and each Significant Subsidiary is Solvent.
(f) The Administrative Borrower represents Agent or the Joint Lead Arrangers, as the case may be, shall have received all costs, fees, expenses (including reasonable out-of-pocket legal fees and covenants that, after the borrowings on the Initial Funding Date expenses and the application reasonable out-of-pocket fees and expenses of funds provided for in appraisers, consultants and other advisors) and other compensation then payable to the immediately preceding paragraphAdministrative Agent or the Joint Lead Arrangers, none including any arrangement fees, or any fees payable to the Lenders with respect to their respective Total Commitments.
(g) The Administrative Agent shall have received satisfactory confirmation of the Borrowers applicable public long-term ratings assigned to the Borrower from S&P and Xxxxx'x for the Loans, which shall be no less than "BBB+" and "Ba1", respectively, and with a stable or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000positive outlook.
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date under this Agreement shall not become effective until the date on or after May 2, 2008, on which each of the following conditions is has been satisfied (or waived in accordance with Section 10.29.02):
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the The Administrative Agent (or its counsel) shall have received:
received from each party hereto either (i) a certificate counterpart of Bidco this Agreement signed by a director certifying:
on behalf of such party or (1ii) written evidence satisfactory to the date on which the Announcement Date occurred Administrative Agent (which shall be may include facsimile transmission of a date on or prior to the tenth calendar day after the date signed signature page of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms such party has signed a counterpart of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedAgreement.
(b) If The Administrative Agent shall have received a favorable written opinion (addressed to the Offer Conversion has occurred, prior to or on Administrative Agent and the Lenders and dated the Initial Funding Date) of each of (i) Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, counsel to the Borrower, substantially in the form of Exhibit E-1, (ii) DLA Piper, counsel to the Borrower, substantially in the form of Exhibit E-2 and (iii) local counsel in each jurisdiction where a Subsidiary Loan Party is organized or a Mortgaged Property is located, in form and substance reasonably satisfactory to the Administrative Agent, and in the case of each such opinion covering such other matters relating to the Loan Parties, the Loan Documents, or the Transactions as the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted reasonably request. The Borrower hereby requests such counsel to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documentsdeliver such opinions.
(c) In The Administrative Agent shall have received such documents and certificates as the case Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of a Borrowing each Loan Party, the authorization of the Transactions and any other legal matters relating to be made by any Borrower other than Bidcothe Loan Parties, Bidco has consented the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to such Borrowingthe Administrative Agent.
(d) The Administrative Agent shall have received a certificate, dated the Initial Funding Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraph (i) of this Section and paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel, but excluding any commitment fees that have accrued since the Signing Date, which shall be payable in the manner set forth in Section 2.09) required to be reimbursed or paid by the Administrative Borrower hereunderany Loan Party hereunder or under any other Loan Document.
(ef) The Collateral and Guarantee Requirement shall have been satisfied, and the Administrative Agent shall have received a completed and updated Perfection Certificate, dated the Initial Funding Date, and signed by the chief financial officer of the Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been, or substantially simultaneously with the initial funding of Loans on the Initial Funding Date will be, released.
(g) The Administrative Agent shall have received a certificate from a Financial Officer of the Borrower, dated the Initial Funding Date, in form and substance reasonably satisfactory to the Administrative Agent, certifying as to the solvency of the Loan Parties on a consolidated basis after giving effect to the Transactions.
(h) The Administrative Agent shall have received evidence that the insurance required by Section 5.07 is in effect, together with endorsements naming the Collateral Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.07.
(i) The Borrower (A) shall have repaid (or substantially concurrently with the funding of the Term Loans (and, to the extent the proceeds of the Term Loans are not sufficient, the funding of not more than $3,000,000 of the Revolving Loans) on the Initial Funding Date shall repay) all the Existing Notes, or, (B) if the Initial Funding Date occurs on May 2, 2008, but the repayment of the Existing Notes is not to occur until May 5, 2008, the Borrower shall have implemented arrangements satisfactory to the Administrative Agent to apply the proceeds of the Term Loans (and, to the extent the proceeds of the Term Loans are not sufficient, the proceeds of not more than $3,000,000 of the Revolving Loans) to repay all the Existing Notes on May 5, 2008. After giving effect to the Transactions to be consummated on the Initial Funding Date (or the next succeeding Business Day), the Borrower and the Subsidiaries shall have outstanding (i) no Indebtedness other than the Loans and the Indebtedness (other than the Existing Notes) set forth in Schedule 6.01, (ii) no Revolving Loans in excess of $3,000,000 in principal amount of Revolving Loans and (iii) no preferred Equity Interests other than the Existing Preferred Stock.
(j) All consents and approvals required to be obtained from any Governmental Authority and all consents required to be obtained from third parties in connection with the Transactions shall have been obtained to the extent such consents or approvals are required under applicable laws or agreements or otherwise.
(k) The Lenders shall have received the annual financial projections of the Borrower for the years 2008 and 2009 (which, in the case of such projections for 2008, shall be presented on a quarterly basis).
(l) The Borrower shall have delivered (i) its audited consolidated balance sheets and related statements of income, changes in stockholders' equity and cash flows as of and for the fiscal year ended 2007, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent registered public accounting firm of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) its consolidated balance sheet and related statements of income, changes in stockholders' equity and cash flows as of the end of and for the fiscal quarter ended March 31, 2008, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial position and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of certain footnotes.
(m) The Administrative Agent shall have received a certificate of a Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose)Borrower, (2) in the case of a Borrowing to be made on dated the Initial Funding Date, the remainder of such Borrowings setting forth reasonably detailed calculations demonstrating compliance with Sections 6.14 and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:6.15.
(in) no Certain Funds Default is continuing or would result from The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including the proposed Borrowings and Letter of credit issuances; and
(ii) all Patriot Act not less than five Business Days prior to the Certain Funds Representations are trueSigning Date. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be irrevocable, conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.29.02) at or prior to 3:00 5:00 p.m., New York City time, on May 5, 2008 (and, in the Initial Funding Dateevent such conditions are not so satisfied or waived, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all shall terminate at such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000time).
Appears in 1 contract
Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of (i) the Lenders to make Loans on and (ii) any Issuing Bank to issue Letters of Credit or increase the Acquisition Consideration Payment Date shall not become effective until stated amounts of Letters of Credit hereunder are subject to the date on which each satisfaction (or waiver in accordance with Section 10.08) of the following conditions is satisfied (or waived in accordance with Section 10.2):on the date of the initial Credit Event hereunder:
(a) If the Offer Conversion has not occurredThe Administrative Agent shall have received, on or prior behalf of itself, the Lenders and each Issuing Bank on the Closing Date, a written opinion of Pxxx, Weiss, Rifkind, Wxxxxxx & Gxxxxxxx LLP, special counsel for the Loan Parties, in form and substance reasonably satisfactory to the Initial Funding Administrative Agent, (A) dated the Closing Date, (B) addressed to each Issuing Bank on the Closing Date, the Administrative Agent shall have received:
and the Lenders, and (iC) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior in form and substance reasonably satisfactory to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme Administrative Agent and the Capital Reduction covering such other matters relating to the Scheme and that Loan Documents as the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies Xxx 0000 and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies Xxx 0000 has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies Xxx 0000 and a copy of the order of the Court and minute which is the subject of that certificate; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtainedAdministrative Agent shall reasonably request.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(d) The Administrative Agent shall have received in the case of each Loan Party each of the items referred to in clauses (i), (ii), (iii) and (iv) below:
(i) a copy of the certificate or memorandum and articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) (where such certification is available in the relevant person’s jurisdiction of incorporation) of the jurisdiction of its organization, and a certificate as to the good standing (or similar concept, to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party 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 similar officer of each such Loan Party;
(ii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(A) that attached thereto is a true and complete copy of the bylaws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect on the Closing 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 Loan Party (or its managing general partner or managing member or equivalent body) authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(C) that the certificate or memorandum and articles of incorporation, certificate of limited partnership or certificate of formation or other equivalent governing document of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party and
(E) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) such other documents as the Administrative Agent, the Lenders and any Issuing Bank on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(c) The elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date shall have been satisfied and the Administrative Agent shall have received the results of a search of the Uniform Commercial Code (and federal tax Liens) filings made with respect to the Loan Parties in the relevant jurisdictions of organization and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been released, or shall be released upon the funding of the Loans or the issuance of the initial Letters of Credit hereunder.
(d) The Borrower, Holdings, the Subsidiary Loan Parties, the Administrative Agent and Wilmington Trust Company, as Trustee, shall have executed the Joinder, and the Administrative Agent shall have received fully executed copies (which may be electronic copies) thereof.
(e) On or prior to the Initial Borrowing Date and substantially concurrently with the incurrence of Loans and the use of such Loans to refinance the extensions of credit under the Existing Credit Facility Agreement on such date, all Indebtedness of Holdings and its subsidiaries under the Existing Credit Facility Agreement shall have been repaid in full, together with all fees and other amounts owing thereon, all commitments under the Existing Credit Facility Agreement shall have been terminated, and all letters of credit issued pursuant to the Existing Credit Facility Agreement (other than the Existing Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Cash Flow Credit Agreement or the ABL Credit Agreement) shall have been terminated and the Administrative Agent shall have received reasonably satisfactory evidence of the same.
(f) On the Closing Date and substantially concurrently with the incurrence of Loans on such date, all security interests granted under the “Security Documents” (as defined in the Existing Credit Facility Agreement) shall have been terminated and released pursuant to release documentation reasonably satisfactory to the Administrative Agent.
(g) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter Loan Documents on or prior to the Initial Funding Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out of pocket expenses (including reasonable and documented fees, out-of-pocket expenses charges and disbursements of Dxxxx Xxxx & Wxxxxxxx LLP) required to be reimbursed or paid by the Administrative Borrower hereunderLoan Parties hereunder or under any Loan Document.
(eh) The Administrative Agent shall have received insurance certificates satisfying the requirements of Section 5.02 of this Cash Flow Credit Agreement.
(i) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the USA PATRIOT Act.
(j) The Administrative Agent shall have received an executed Perfection Certificate dated as of the Closing Date.
(k) The Senior Lien Intercreditor Agreement and the Notes Collateral Intercreditor Agreement shall have been executed and delivered by the respective parties thereto.
(l) The Administrative Agent shall have received a certificate from the chief financial officer of Holdings certifying that the Loan Parties, on a Financial Officer consolidated basis, after giving effect to the Transactions to occur on the Closing Date, are solvent. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Borrower certifying that (1) a portion (or all) of Agent responsible for the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under transactions contemplated by the Loan Documents it may shall have received notice from such Lender prior to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Closing Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 specifying its objection thereto and such Lender shall not have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be made available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following Administrative Agent such Lender’s ratable portion of the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, Borrowing (if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000).
Appears in 1 contract
Samples: Credit Agreement (Verso Paper Corp.)