Closing Date Borrowing. The obligation of each Lender to make a Loan on the Closing Date is subject to the occurrence of the Effective Date and satisfaction (or waiver in accordance with Section 13.13) of the following conditions: (a) The Administrative Agent shall have received a certificate from an Authorized Representative of the Borrower certifying as to the satisfaction of the conditions precedent set forth in Sections 7.1(b), 7.1(c), 7.1(d) and 7.1(e) hereof. (b) The Apollo Acquisition shall be consummated substantially concurrently with the borrowing of Loans hereunder in accordance with the Apollo Acquisition Agreement, and the Apollo Acquisition Agreement shall not have been amended or modified by the Borrower, and no condition shall have been waived or consent granted by the Borrower, in any respect that is materially adverse to the Lenders or the Lead Arrangers without the Initial Lead Arrangers’ prior written consent, not to be unreasonably withheld or delayed (it being understood and agreed that (i) any decrease in the cash portion of the consideration for the Apollo Acquisition that is accompanied by a dollar-for-dollar reduction in commitments in respect of the Apollo Bridge Facility (to the extent such commitments are then outstanding), (ii) any decrease in non-cash portion of the consideration for the Apollo Acquisition and (iii) any increase in cash portion of the consideration for the Apollo Acquisition that (x) is funded with the proceeds of an equity issuance or (y) that together with any other such increases (other than increases permitted by the preceding clause (x)) since September 12, 2023 which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders). (c) The Apollo Acquisition Agreement Representations and the Apollo Specified Representations shall be true and correct in all material respects on and as of the Closing Date, except to the extent the same expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein). (d) No Default or Event of Default under Section 9.1(a), 9.1(j) (with respect to the Borrower only) or 9.1(k) (with respect to the Borrower only) has occurred and is continuing or would occur as a result of the borrowing of Loans hereunder on the Closing Date. (e) Since September 10, 2023, no Apollo Company Material Adverse Effect shall have occurred. (f) The Administrative Agent shall have received for each of the Borrower and the Apollo Acquired Business (X) U.S. GAAP audited consolidated balance sheets and related statements of (in the case of the Borrower) consolidated income or (in the case of the Apollo Acquired Business) comprehensive income, stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date, (Y) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements of (in the case of the Borrower) consolidated income or (in the case of the Apollo Acquired Business) comprehensive income, and cash flows for each subsequent interim fiscal quarter ended at least 40 days before the Closing Date and (Z) regardless of when such pro forma financial statements are required to be filed with the SEC, customary pro forma consolidated balance sheets for the Borrower and the Apollo Acquired Business as of the last day of the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date and related pro forma consolidated statements of operations for the Borrower and the Apollo Acquired Business for the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date, in each case giving effect to the Apollo Transactions as if such transactions had occurred as of such dates (in the case of such balance sheets) or at the beginning of such period (in the case of the statements of operations), in each case which financial statements shall meet the requirements in all material respects of Regulation S-X under the Securities Act of 1933, as amended (the “Securities Act”), including, in the case of the foregoing clause (iii), Rule 3-05 and Article 11 thereunder, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registered public offering of debt securities of the Borrower on Form S-1 or Form S-3, as the case may be. The Administrative Agent hereby acknowledges receipt of the financial statements in the foregoing clause (i) for the Borrower’s and the Apollo Acquired Business’s fiscal years ended 2020, 2021 and 2022, and in the foregoing clause (ii) for the Borrower’s fiscal quarter ended on or about July 31, 2023 and the Apollo Acquired Business’s fiscal quarter ended on or about March 31, 2023 and June 30, 2023. The Borrower’s or the Apollo Acquired Business’s filing of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (X) or (Y), as applicable, of this paragraph. (g) The Administrative Agent shall have received the notice required by Section 1.6(a) hereof. (h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached as Exhibit J hereto, certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Apollo Transactions, are solvent. (i) The Lead Arrangers, the Administrative Agent and the Lenders shall have received all fees and expenses required to be paid on or prior to the Closing Date pursuant to the Apollo Term Fee Letter or hereunder and, with respect to expenses, invoiced to the Borrower at least three business days prior to the Closing Date.
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Closing Date Borrowing. The obligation of each Lender to make a Loan on the Closing Date is subject to the occurrence of the Effective Date and satisfaction (or waiver in accordance with Section 13.13) of the following conditions:
(a) The Administrative Agent shall have received a certificate from an Authorized Representative of the Borrower certifying as to the satisfaction of the conditions precedent set forth in Sections 7.1(b), 7.1(c), 7.1(d) and 7.1(e) hereof.
(b) The Apollo Acquisition shall be consummated substantially concurrently with the borrowing Borrowing of the Loans hereunder in accordance with the Apollo Acquisition Agreement, and the Apollo Acquisition Agreement shall not have been amended without giving effect to any amendment, modification, supplement or modified waiver by the Borrower, and no condition shall have been waived Company thereto or consent granted consents by the Borrower, Company thereunder that are in any respect that is the aggregate (when taken as a whole) materially adverse to the Lenders or the Lead Arrangers Lenders, in their respective capacities as such, without the Initial Lead Arrangers’ prior written consent, consent of the Required Lenders (such consent not to be unreasonably withheld withheld, conditioned or delayed (it being understood and agreed delayed); provided, that (i) any decrease changes to the purchase price shall not be deemed to be materially adverse to the interests of the Lenders if such purchase price changes do not exceed 10% in the cash portion aggregate and, in the case of a purchase price decrease, shall reduce the commitments in respect of the consideration for the Apollo Acquisition that is accompanied by Bridge Facility on a dollar-for-dollar reduction in commitments in respect of the Apollo Bridge Facility (to the extent such commitments are then outstanding)basis; provided further, (ii) any decrease in non-cash portion of the consideration for the Apollo Acquisition and (iii) any increase in cash portion of the consideration for the Apollo Acquisition that (x) is funded with the proceeds of an equity issuance or (y) that together with any other such increases (other than increases permitted by the preceding clause (x)) since September 12, 2023 which does not exceed 5% of a decrease in the purchase price, in each case price shall be deemed not to be materially adverse to the Lenders)interests of the Lenders if such purchase price decrease exceeds 10% in the aggregate and (y) an increase in the purchase price shall be deemed to be materially adverse to the Lenders if (I) such purchase price increase exceeds 10% in the aggregate or (II) such purchase price increase is funded with third-party debt for borrowed money.
(b) Since the date of the Acquisition Agreement, a Company Material Adverse Effect shall not have occurred.
(c) The Apollo Acquisition Agreement Representations and the Apollo Specified Representations shall be true and correct in all material respects on and as of the Closing Date, except to the extent the same expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein).
(d) No Default or Event of Default under Section 9.1(a), 9.1(j) (with respect to the Borrower only) or 9.1(k) (with respect to the Borrower only) has occurred and is continuing or would occur as a result of the borrowing of Loans hereunder on the Closing Date.
(e) Since September 10, 2023, no Apollo Company Material Adverse Effect shall have occurred.
(f) The Administrative Agent shall have received for each of the Borrower and the Apollo Acquired Business received: (Xi) U.S. GAAP audited consolidated balance sheets and related statements statement of comprehensive income (loss) (in the case of the BorrowerCompany), operations and comprehensive income (loss) consolidated income or (in the case of the Apollo Acquired Business) comprehensive incomeTarget), stockholdersshareholders’ equity and cash flows an unaudited balance sheet and related statements of income (or operations) and cash flows of each of the Company and the Target for the last three most recently completed full fiscal years ended at least 60 days prior to the Closing Date, Date and (Yii) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements statement of comprehensive income (loss) (in the case of the BorrowerCompany), operations and comprehensive income (loss) consolidated income or (in the case of the Apollo Acquired Business) comprehensive incomeTarget), shareholders’ equity and cash flows an unaudited balance sheet and related statements of income (or operations) and cash flows of each of the Company and the Target for each subsequent interim fiscal quarter ended at least 40 days before the Closing Date and (Z) regardless of when such pro forma financial statements are required to be filed with the SEC, customary pro forma consolidated balance sheets for the Borrower and the Apollo Acquired Business as of the last day of the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date and related pro forma consolidated statements of operations for (other than the Borrower and the Apollo Acquired Business for the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fourth fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date, in each case giving effect to the Apollo Transactions as if such transactions had occurred as of such dates (in the case of such balance sheets) or at the beginning of such period (in the case of the statements of operationsany fiscal year), which are prepared in accordance with GAAP; it being understood that, with respect to such financial information for each case which financial statements such fiscal year and fiscal quarter, such condition shall meet be deemed satisfied through the requirements in all material respects filing by the Company or the Target of Regulation S-X under the Securities Act of 1933, as amended (the “Securities Act”), including, in the case of the foregoing clause (iii), Rule 3-05 and Article 11 thereunder, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registered public offering of debt securities of the Borrower its annual report on Form S-1 10-K or quarterly report on Form S-3, as the case may be10-Q with respect to such fiscal year or fiscal quarter. The Administrative Agent hereby acknowledges receipt of the financial statements (x) in the foregoing clause (i) with respect to the Company for the Borrower’s and the Apollo Acquired Business’s fiscal years ended June 27, 2020, July 3, 2021 and 2022July 2, 2022 and for the Target for the fiscal years ended March 27, 2023, April 2, 2022 and April 1, 2023 and (y) in the foregoing clause (ii) with respect to the Company for the Borrower’s fiscal quarter quarters ended on or about July October 1, 2022, December 31, 2023 2022 and the Apollo Acquired Business’s fiscal quarter ended on or about March 31, 2023 and June 30April 1, 2023. The Borrower’s or the Apollo Acquired Business’s filing of any required audited financial statements on Form 10-K or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (X) or (Y), as applicable, of this paragraph.
(gd) The Administrative Agent shall have received (i) a duly executed Borrowing Request complying with the notice required by terms of Section 1.6(a2.03 and (ii) hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower Company in the form attached as Exhibit J hereto, I hereto certifying that the Borrower Company and its Subsidiaries, on a consolidated basis after giving effect to the Apollo Transactions, are solventSolvent.
(e) The Acquisition Agreement Representations and the Specified Representations shall be accurate in all material respects on and as of the Closing Date; provided that to the extent that the Acquisition Agreement Representations and the Specified Representations specifically refer to an earlier date, they shall be accurate in all material respects as of such earlier date and (b) no Event of Default under (1) paragraphs (a) and (b) of Article VII and (2) paragraphs (h) and (i) of Article VII (with respect to the Company only).
(f) The Lead Arrangers, the Administrative Agent and the Lenders Company shall have received paid all fees and expenses due under that certain Permanent Loan Financing Fee Letter, dated as of August 10, 2023, among the Company, Bank of America, N.A., BofA Securities, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. (the “Facilities Fee Letter”), and in the case of expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days prior to the Closing Date, and required to be paid on or prior to the Closing Date pursuant to the Apollo Term Fee Letter or hereunder and, with respect to expenses, invoiced to the Borrower at least three business days prior to the Closing Date.
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Closing Date Borrowing. The obligation obligations of each Lender the Lenders to make a Loan the Tranche A Loans, Tranche B Loans and Tranche C Loans on the Closing Date is are subject to the occurrence of the Effective Date and satisfaction (or waiver in accordance with Section 13.13) each of the following conditionsconditions being satisfied on or prior to the Closing Date:
(a) The Administrative Agent the Effective Date shall have received a certificate from an Authorized Representative of the Borrower certifying as to the satisfaction of the conditions precedent set forth in Sections 7.1(b), 7.1(c), 7.1(d) and 7.1(e) hereof.occurred;
(b) The Apollo Acquisition shall be consummated substantially concurrently with the borrowing of Loans hereunder in accordance with the Apollo Acquisition Agreement, and the Apollo Acquisition Agreement shall not have been amended or modified by the Borrower, and no condition shall have been waived or consent granted by the Borrower, in any respect that is materially adverse to the Lenders or the Lead Arrangers without the Initial Lead Arrangers’ prior written consent, not to be unreasonably withheld or delayed (it being understood and agreed that (i) any decrease in the cash portion of the consideration for the Apollo Acquisition that is accompanied by a dollar-for-dollar reduction in commitments in respect of the Apollo Bridge Facility (to the extent such commitments are then outstanding), (ii) any decrease in non-cash portion of the consideration for the Apollo Acquisition and (iii) any increase in cash portion of the consideration for the Apollo Acquisition that (x) is funded with the proceeds of an equity issuance or (y) that together with any other such increases (other than increases permitted by the preceding clause (x)) since September 12, 2023 which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the Lenders).[reserved];
(c) The Apollo (i) where the Acquisition Agreement Representations proceeds by way of an Offer, the Offer Effective Date has occurred and the Apollo Specified Borrower owns (or immediately after application of the proceeds of the initial Loan on the Closing Date, will own) no less than 80% of the Shares or (ii) where the Acquisition proceeds by way of an Arrangement, the Arrangement Effective Date has occurred and the Borrower owns (or immediately after application of the proceeds of the initial Loan on the Closing Date, will own) 100% of the Shares);
(d) the conditions applicable to the Acquisition contained in the relevant Arrangement Documents or, as the case may be, Offer Related Documents, have been satisfied or amended or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Joint Lead Arrangers, acting reasonably;
(e) the Certain Funds Representations shall be true and correct in all material respects on and as of the Closing Date, (except to the extent the same expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language by materiality shall be true and correct (in all respects) on the Closing Date, both before and after giving effect to any qualification therein).
(d) No Default or the funding of the Tranche A Loan, Tranche B Loan and Tranche C Loan on the Closing Date and no Certain Funds Event of Default under Section 9.1(a)shall have occurred and be continuing, 9.1(j) (with respect both before and after giving effect to the Borrower only) or 9.1(k) (with respect to the Borrower only) has occurred and is continuing or would occur as a result funding of the borrowing of Loans hereunder Tranche A Loan, Tranche B Loan and Tranche C Loan on the Closing Date.
(e) Since September 10, 2023, no Apollo Company Material Adverse Effect shall have occurred.;
(f) The [reserved];
(g) the Administrative Agent and the Arrangers shall have received for each of the Borrower all fees and the Apollo Acquired Business (X) U.S. GAAP audited consolidated balance sheets other amounts due and related statements of (in the case of the Borrower) consolidated income payable on or (in the case of the Apollo Acquired Business) comprehensive income, stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date, (Y) U.S. GAAP unaudited consolidated balance sheets and related unaudited statements including, to the extent invoiced, reimbursement or payment of (in the case of the Borrower) consolidated income or (in the case of the Apollo Acquired Business) comprehensive income, and cash flows for each subsequent interim fiscal quarter ended at least 40 days before the Closing Date and (Z) regardless of when such pro forma financial statements are all reasonable out-of-pocket expenses required to be filed with the SEC, customary pro forma consolidated balance sheets for reimbursed or paid by the Borrower and the Apollo Acquired Business hereunder;
(h) as of the last day of the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date and related pro forma consolidated statements of operations for the Borrower and the Apollo Acquired Business for the most recent fiscal year of the Borrower ended at least 60 days prior to the Closing Date or, if later, the most recent fiscal quarter of the Borrower ended period ended at least 40 days prior to the Closing Date, in each case giving effect to the Apollo Transactions as if such transactions had occurred as of such dates (in the case of such balance sheets) or at the beginning of such period (in the case of the statements of operations), in each case which financial statements shall meet the requirements in all material respects of Regulation S-X under the Securities Act of 1933, as amended (the “Securities Act”), including, in the case of the foregoing clause (iii), Rule 3-05 and Article 11 thereunder, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registered public offering of debt securities of the Borrower on Form S-1 or Form S-3, as the case may be. The Administrative Agent hereby acknowledges receipt of the financial statements in the foregoing clause (i) for no order, judgment or decree of any Governmental Authority shall purport to restrain any Lender from making the Borrower’s and Loans to be made by it on the Apollo Acquired Business’s fiscal years ended 2020Closing Date, 2021 and 2022, and in the foregoing clause (ii) for no injunction or other restraining order shall have been issued by a court of competent jurisdiction which purports to enjoin or otherwise prevent the Borrower’s fiscal quarter ended on making of Tranche A Loans, Tranche B Loans or about July 31, 2023 and the Apollo Acquired Business’s fiscal quarter ended on or about March 31, 2023 and June 30, 2023. The Borrower’s Tranche C Loans or the Apollo Acquired Business’s filing consummation of any required audited financial statements on Form 10-K the Acquisition and (iii) the making of the Tranche A Loan, the Tranche B Loan or required unaudited financial statements on Form 10-Q, in each case, will satisfy the requirements under clauses (X) Tranche C Loan or (Y), as applicable, the consummation of this paragraph.the Acquisition shall not otherwise be unlawful;
(gi) The Administrative Agent shall have received the notice required by Section 1.6(a) hereof.
(h) The Administrative Agent shall have received a solvency certificate from signed by a Responsible Officer of the chief financial Borrower certifying that the conditions set forth in paragraphs (c), (d) and (e) above have been satisfied;
(j) where the Acquisition proceeds by way of an Offer, a copy, certified by an officer of the Borrower, of a letter from the Receiving Agent to the Borrower confirming receipt of valid acceptances (in accordance with the acceptance conditions contained in the form attached as Exhibit J hereto, certifying that Offer Document and the Borrower and its Subsidiaries, on a consolidated basis after giving effect to Irish Takeover Rules) of at least 80% of the Apollo Transactions, are solvent.Shares; and
(ik) The Lead Arrangerswhere the Acquisition proceeds by way of an Arrangement, the Administrative Agent and the Lenders shall have received all fees (i) evidence that the Court Order in respect of the Arrangement has been entered and expenses required to be paid on or prior to (ii) certified copies of the Closing Date pursuant to certificates of the Apollo Term Fee Letter or hereunder and, with respect to expenses, invoiced to Registrar of Companies in Ireland confirming Registration of the Borrower at least three business days prior to the Closing DateCourt Order.
Appears in 1 contract
Sources: Bridge Credit Agreement (Mylan N.V.)