Conditions Precedent to Closing Date. The obligation of each Lender to make an Advance on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 3 contracts

Sources: Term Loan Credit Agreement (AbbVie Inc.), 364 Day Bridge Credit Agreement (AbbVie Inc.), 364 Day Bridge Credit Agreement (AbbVie Inc.)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) reserved; (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ it that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, of counsel to the ~~Loan Documents shall be paid,~~ Custodian and of counsel to the ~~extent invoiced at least one Business Day prior~~ Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall have been paid by the Borrower; (j) evidence reasonably satisfactory to it that an amount equal to the Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (l) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gm) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (n) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 3 contracts

Sources: Amendment No. 2 to Facility Documents (Blue Owl Technology Income Corp.), Credit and Security Agreement (Blue Owl Technology Income Corp.), Credit and Security Agreement (Owl Rock Technology Income Corp.)

Conditions Precedent to Closing Date. The obligation of each Lender to make an Advance on the Closing Date is subject to the satisfaction (or waiver in accordance with Section ~~9.01~~8.01) of solely the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to On the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no ~~Certain Funds~~ Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the ~~Shire Acquisition~~ representations and warranties set forth in Section 4.01 (other than the ~~Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated~~ representations and warranties set forth in ~~the case of the Shire Acquisition~~ Section 4.01(f)) are true and correct in all material respects ~~in accordance with the terms and conditions of the Scheme Documents~~ (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, except to the extent such ~~modifications~~representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, ~~amendments~~in which case such representations and warranties shall be true and correct in all respects) as of the Closing Date, ~~consents~~except to the extent any such representation or warranty is stated to relate solely to an earlier date, ~~requests~~ in which case such representation or ~~waivers~~ warranty shall have been ~~required pursuant~~ true and correct in all material respects (except to the ~~City Code~~ extent such representations and warranties are qualified with “materiality” or ~~the Panel~~ “Material Adverse Effect” or ~~are not prohibited by the Loan Documents~~similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date. (fc) All fees and other amounts due and payable by the ~~Borrower, AbbVie~~ Borrower and ~~their~~ its Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. . (d) The Administrative Agent shall have received a the Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: 364 Day Term Loan Credit Agreement (AbbVie Inc.), 364 Day Term Loan Credit Agreement (AbbVie Inc.)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of ~~each Lender to make an Advance on~~ the Closing Date is subject to ~~the~~ satisfaction (or waiver ~~in accordance with Section 9.01)~~ of the following ~~conditions~~conditions precedent: (a) ~~The Effective Date~~ issuance of the Bonds and submission to the Agent of duplicate originals or certified copies of all of the documents submitted in connection with the issuance of the Bonds on the Closing Date, which shall ~~have occurred.~~be in form and substance satisfactory to the Agent; (b) If receipt by the ~~Shire Acquisition is effected~~ Issuing Bank of the following, in each case in the form approved by ~~way of a Scheme,~~ the ~~Administrative~~ Agent ~~shall have received~~on the Closing Date: (i) ~~a certificate of~~ this Agreement and the ~~Borrower signed~~ DSR LOC Loan Note duly executed by ~~a director certifying: (1)~~ the ~~date on which the Scheme Circular was posted to the shareholders of Shire~~Company; (2ii) ~~the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3)~~ an original of each of the ~~Jersey Companies Law~~Security Documents, duly executed by the parties thereto; (3iii) a copy of each other Financing Document, duly executed by the parties thereto and certified by the Company as to ~~the satisfaction~~ completeness and authenticity; (iv) written opinions of ~~each condition set forth in clauses (d), (e) (~~counsel acceptable to the ~~extent~~ Agent, addressed to the Agent and the Banks, and in form and substance satisfactory to the Agent and covering such matters as the Agent may reasonably request; (v) evidence satisfactory to the Agent that each of the parties to the Project Contracts, Financing Documents and Security Documents shall have duly and irrevocably appointed a process agent to act for and on behalf of such person, to receive summonses and other legal process in connection with any suit, action or proceeding relating to such documents in the ~~Scheme), (f)~~ jurisdictions in which it is required to submit to such jurisdiction and ~~(i) (~~such appointment shall have been accepted and all fees scheduled to accrue to each such agent for the ~~extent relating to the Scheme) below~~service of process shall have been paid in full; and (4vi) ~~each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior~~ evidence satisfactory to the ~~Closing Date~~Agent that all actions necessary or appropriate in order to effectively establish, ~~except to~~ create or perfect the ~~extent such changes thereto~~ Security Interest have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentsduly taken. (c) If payment by the ~~Shire Acquisition is effected by way~~ Company of ~~a Takeover Offer, the Administrative Agent shall have received:~~ all accrued fees and expenses (ias provided in Sections 2.5 and 9.4) ~~a certificate~~ of the ~~Borrower signed by a director certifying:~~ Agent and the Banks (1) including the ~~date on which the Takeover Offer Document was posted~~ reasonable accrued fees and disbursements of counsel to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition Agent and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each caseBanks), to the extent that one or more statements for such ~~modifications, amendments, consents, requests or waivers~~ fees and expenses have been ~~required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents~~presented for payment. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Debt Service Reserve Letter of Credit and Reimbursement Agreement (Aes Red Oak LLC), Debt Service Reserve Letter of Credit and Reimbursement Agreement (Aes Ironwood LLC)

Conditions Precedent to Closing Date. The ~~obligation~~ obligations of ~~each Lender~~ the Lenders to make ~~an Advance~~ Initial Term Loans on the Closing Date is are subject to the satisfaction (or waiver in accordance with Section ~~9.01~~9.08) of the following ~~conditions~~conditions on the Closing Date: (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each of the Parent Borrower, the Co-Borrower and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement. (b) If The Administrative Agent and the ~~Shire Acquisition is effected by way~~ Lenders shall have received, (i) a written opinions of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel for the Loan Parties and from such other U.S. local counsel for the Loan parties as the Required Lenders may request (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Required Lenders covering such matters relating to the Loan Documents as the Required Lenders shall reasonably request and (ii) a ~~Scheme~~written opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as Canadian counsel for the Loan Parties and from such other Canadian local counsel for the Loan Parties as the Required Lenders deem necessary, (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Required Lenders covering such matters as the Required Lenders shall reasonably request. (c) The Administrative Agent shall have ~~received~~received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying: (i) that attached thereto is a true and complete copy of the certificate or articles of incorporation, certificate of ~~the Borrower signed by a director certifying:~~ limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) in the case of a corporation, certified as of a recent date ~~on which~~ by the ~~Scheme Circular was posted to~~ Secretary of State (or other similar official) of the ~~shareholders~~ jurisdiction of ~~Shire;~~ its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party, (ii) in the case of the U.S. Loan Parties, that attached thereto is a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official), (iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date on of the resolutions described in clause (iv) below, (iv) that attached thereto is a true and complete copy of the minutes of, or resolutions duly adopted by, the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the ~~Court has sanctioned~~ case of the ~~Scheme~~ Parent Borrower and the Co-Borrower, the borrowings hereunder, and that such minutes or resolutions have not been modified, rescinded or amended and are in full force and effect on the ~~Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~Closing Date, (3v) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth~~ officer executing any Loan Document or any other document delivered in ~~clauses~~ connection herewith on behalf of such Loan Party, and (vi) the name and title of any Responsible Person with respect each such applicable Loan Party. (d) The Administrative Agent and Lenders shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of the Parent Borrower, together with all attachments contemplated thereby, and the Lenders shall have received the results of a search of the Uniform Commercial Code or PPSA (or equivalent), tax and judgment, United States Patent and Trademark Office, United States Copyright Office and Canadian Intellectual Property Office 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 Required Lenders that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been released (or arrangements reasonably satisfactory to the Required Lenders for such release shall have been made); (e) (The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit H and signed by a Financial Officer of the Parent Borrower confirming the solvency of the Parent Borrower and its Subsidiaries on a consolidated basis after giving effect to the ~~extent relating to~~ Transactions on the ~~Scheme),~~ Closing Date; (f) ~~and (i) (~~The Agents shall have received all fees payable thereto or to ~~the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ any Lender on or prior to the Closing ~~Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents;~~ Date and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business ~~Day~~ Days prior to the Closing ~~Date~~ Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Goodmans LLP and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the ~~relevant person and to the extent such amounts are payable~~ Loan Parties hereunder or under any Loan Document on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans); (g) Except as set forth in Schedule 5.13 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement”), the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date. ; (h) The Administrative Agent and the Lenders shall have received ~~a Notice of Borrowing in accordance with~~ all documentation and other information required by Section ~~2.02.~~3.25(a)(ii) and (iii) on or prior to the dates set forth therein, as applicable, to the extent such information has been requested not less than three (3) Business Days prior to the Closing Date; (gi) The Administrative Agent shall have received a ~~pro forma consolidated balance sheet~~ Borrowing Request as required by Section 2.03; (j) The representations and ~~related pro forma consolidated statement of income of AbbVie NewCo~~ warranties set forth in the Loan Documents shall be true and ~~its Subsidiaries~~ correct in all material respects as of such date, in each case, with the same effect as though made on and as of such date, except to the extent such representations and warranties 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) and except to the extent such representations and warranties are qualified by materiality, Material Adverse Effect or similar language (in which case such representations and warranties shall be true and correct in all respects); (k) At the time of and immediately after such Borrowing, no Default or Event of Default shall have occurred and be continuing; (l) The Administrative Agent and the Lenders shall have received a closing date certificate substantially in the form of Exhibit I and signed by a Financial Officer of the Parent Borrower which shall include certifications to the effect that the conditions precedent set forth in Sections 4.01(j) and (k) hereof have been satisfied on the Closing Date; (m) Farm Credit Canada shall have provided its consent to the incurrence of the Initial Term Loan Facility; and (n) The Administrative Agent and the Lenders shall have received the Historical Financial Statements. For purposes of determining compliance with the conditions specified in this Section 4.01, 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 Agent responsible for the ~~twelve-month period ending on~~ transactions contemplated by the ~~last day of the most recently completed four-fiscal quarter period ended at least 45 days~~ Loan Documents shall have received notice from such Lender prior to the Closing ~~Date~~Date specifying its objection thereto and, ~~prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (~~in the case of a Borrowing, such ~~balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither~~ Lender shall not have made available to the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its such ▇▇▇▇▇▇’s ratable portion of the ~~Advances or restricting the application of the proceeds thereof~~initial Borrowing. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Credit Agreement (Canopy Growth Corp), Credit Agreement (Canopy Growth Corp)

Conditions Precedent to Closing Date. The ~~obligation~~ effectiveness of ~~each Lender to make an Advance on the Closing Date is~~ this Agreement shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ conditions precedent that the Administrative Agent shall have received each following documents and each of the following ~~conditions~~conditions shall have occurred, or shall occur concurrently therewith, each in form and substance reasonably satisfactory to the Lenders: (a) The ~~Effective Date~~ Borrower shall have ~~occurred~~received the duly executed and delivered acceptance letter to this Offer PCT N°1/2016 from the Agents and the Lenders. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the~~ The Administrative Agent shall have ~~received:~~received the duly executed and delivered acceptance letter to the Guaranty Agreement from the Guarantor. (c) The Administrative Agent shall have received a certificate from the Borrower, dated the Closing Date, signed by an Authorized Officer of the Borrower, substantially in the form of Exhibit C hereto, certifying the names and true signatures of the officers of the Borrower authorized to sign the Credit Documents and attaching true, correct and complete copies of (i) ~~a certificate~~ the Organizational Documents of the Borrower, (ii) the necessary resolutions of the board of directors (and/or other relevant governing body) of the Borrower, each certified by an Authorized Officer of the Borrower ~~signed by a director certifying:~~ (1) which certificate shall state that such resolutions are in full force and effect on the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (iiClosing Date) and (iii) ~~below is correct~~ a good standing certificate relating to the legal existence (to the extent applicable and ~~complete~~ available in the particular jurisdiction) of the Borrower. (d) The Administrative Agent shall have received satisfactory evidence that all Governmental Approvals and ~~has not~~ consents of, and notices to, any other Person, but only to the extent such Governmental Approvals, consents, and notices are required in connection with the due execution, delivery, recordation, filing or performance by the Loan Parties of the Credit Documents, have been ~~amended~~ obtained, or ~~superseded~~ made, and are in full force and effect. (e) All fees and expenses required to be paid under the Credit Documents (including the Fee Letter as applicable) on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business Day prior to the Closing ~~Date by the relevant person and to the extent such amounts are payable on or prior to the Closing~~ Date~~. The Administrative Agent~~ , shall have ~~received a Notice of Borrowing in accordance with Section 2.02~~been paid. (gf) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at At least 45 five (5) days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative each Agent ~~nor any~~ and each Lender shall have ~~any approval right~~ received such documentation and other information about the Loan Parties required under applicable client onboarding procedures or “know your customer” or anti-money laundering rules and regulations, including the USA PATRIOT Act, as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately has been reasonably requested in writing at least 10 days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~Date.

Appears in 2 contracts

Sources: Loan Agreement, Senior Secured Loan Agreement (PCT LLC)

Conditions Precedent to Closing Date. The ~~obligation~~ effectiveness of ~~each Lender to make an Advance on the Closing Date is~~ this Agreement shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ conditions precedent that the Lender shall have received each following documents and each of the following ~~conditions~~conditions shall have occurred, or shall occur concurrently therewith, each in form and substance reasonably satisfactory to the Lender: (a) The ~~Effective Date~~ Lender shall have ~~occurred~~received a certificate from the Borrower, dated the Closing Date, signed by an Authorized Officer of the Borrower, substantially in the form of Exhibit C hereto, certifying the names and true signatures of the officers of the Borrower authorized to sign the Credit Documents and attaching true, correct and complete copies of (i) the Organizational Documents of the Borrower and (ii) the necessary resolutions of the board of directors (and/or other relevant governing body) of the Borrower, each certified by an Authorized Officer of the Borrower (which certificate shall state that such resolutions are in full force and effect on the Closing Date). (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The Lender shall have ~~received: (i) a certificate~~ received copies of the audited annual financial statements of the Borrower ~~signed by a director certifying:~~for the fiscal years ended June 30, 2013 and 2014, the six-month period ended December 31, 2014 and the fiscal year ended December 31, 2015. (1c) The Lender shall have received an acceptance letter regarding the ~~date on which~~ Borrower’s appointment of the ~~Scheme Circular was posted to~~ Process Agent, duly executed and delivered by the ~~shareholders of Shire;~~Process Agent. (2d) All fees and expenses required to be paid under the ~~date on which~~ Credit Documents (including the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3~~Fee Letter as applicable) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business Day prior to the Closing ~~Date by~~ Date, shall have been paid. (e) The Lender shall have received such documentation and other information about the ~~relevant person~~ Borrower required under applicable client onboarding procedures or “know your customer” or anti-money laundering rules and to regulations, including the ~~extent such amounts are payable on or~~ USA PATRIOT Act, as has been reasonably requested in writing at least 10 days prior to the Closing Date. . (f) The ~~Administrative Agent~~ Borrower shall ~~have received a Notice~~ be in compliance with all applicable Laws, requirements and Governmental Approvals in respect of ~~Borrowing in accordance with Section 2.02~~the launching of the Tender Offer. (g) The ~~Administrative Agent~~ Lender shall have received ~~a pro forma consolidated balance sheet~~ duly executed and ~~related pro forma consolidated statement of income of AbbVie NewCo~~ delivered offer and ~~its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior~~ acceptance letters or counterparts with respect to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Argentine Guaranty Agreement. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Senior Secured Loan Agreement, Senior Secured Loan Agreement (PCT LLC)

Conditions Precedent to Closing Date. ~~The~~ Subject to Section 3.04, the obligation of each Lender to make an Advance ~~on the Closing Date~~ is subject to the receipt or satisfaction (or waiver in accordance with Section 9.01) ), as applicable, of the following conditions: (a) The Effective Date shall have occurred. (b) If the ~~Shire~~ Target Acquisition is effected by way of a Scheme, the ~~Administrative~~ Designated Agent shall have received: (i) a certificate of the Borrower signed by a ~~director~~ Responsible Officer certifying: (1A) the date on which the Scheme Circular was posted to the shareholders of ~~Shire~~the Target; (2B) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the ~~Registrar in accordance with Article 125(3) of the Jersey Companies Law~~Registrar; (3C) as to the satisfaction of each condition set forth in clauses (d~~), (e) (to the extent relating to the Scheme), (f~~) and (ie) (to the extent relating to the Scheme) below; and (4D) ~~each~~ the copy of the ~~documents~~ document specified in ~~paragraphs~~ paragraph (ii) below and delivered to the Designated Agent pursuant to paragraph (~~iii~~ii) below is correct and complete and has not been amended or superseded following the date of delivery and on or prior to the Closing Date~~, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto ~~have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or~~ are not prohibited by the Loan Documents. (c) If the ~~Shire~~ Target Acquisition is effected by way of a Takeover Offer, the ~~Administrative~~ Designated Agent shall have received: (i) a certificate of the Borrower signed by a ~~director~~ Responsible Officer certifying: (1A) the date on which the Takeover Offer Document was posted to the shareholders of ~~Shire~~the Target; (2B) as to the satisfaction of each condition set forth in clauses (d~~), (e) (to the extent relating to the Takeover Offer), (f~~) and (ie) (to the extent relating to the Takeover Offer) below; (3C) ~~each~~ the copy of the ~~documents~~ document specified in paragraph (ii) below and delivered to the Designated Agent pursuant to paragraph (ii) below is correct and complete and has not been amended or superseded following the date of delivery and on or prior to the Closing Date~~, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents~~; and (4D) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are ~~permitted~~ not prohibited under the Loan Documents. (d) On the date of the applicable ~~borrowing~~ Borrowing request and on the proposed date of such ~~borrowing~~ Borrowing (xi) no Certain Funds Default is shall be continuing or would result from the proposed Borrowing and (yii) all the Certain Funds Representations ~~are~~ shall be true or, if a Certain Funds Representation does not already include a materiality concept, true in all material respects. (e) Where the ~~Shire~~ Target Acquisition is to be implemented by way of a Scheme, ~~each of~~ the ~~Shire~~ Target Acquisition ~~and the Company Merger~~ shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated ~~in the case of the Shire Acquisition~~ in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being ~~made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder~~made) or, where the ~~Shire~~ Target Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become wholly unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummatedDocument, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Parent Guarantor, the Borrower or any Acquisition Co (~~or its applicable affiliate~~if any) ~~thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case,~~ except to the extent ~~such modifications, amendments, consents, requests or waivers have been required~~ permitted pursuant to ~~the City Code or the Panel or are not prohibited by the Loan Documents~~Section 5.01(k). (f) The Designated Agent shall have received the Closing Date Officer’s Certificate. (g) The Designated Agent shall have received a Borrowing Request in accordance with Section 2.02. (h) All fees ~~and other amounts~~ then due and payable by the ~~Borrower, AbbVie and their Subsidiaries~~ Reporting Group to the ~~Arranger~~Designated Agent, the ~~Administrative Agent~~ Arrangers and the Lenders under the Loan Documents or pursuant to ~~any fee or similar letters relating to~~ the ~~Loan Documents~~ Fee and Syndication Letter shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (hi) It is shall not be illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof~~. (i) After giving effect~~ ; provided, that such Lender has used commercially reasonable efforts to make the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness Advance through an Affiliate of such ~~Scheme or purchase pursuant~~ Lender not subject to such ~~Takeover Offer~~ legal restriction; provided further, that the occurrence of such event in relation to one Lender shall ~~own equity interests in AbbVie NewCo representing more than 20.0%~~ not relieve any other Lender of ~~both the voting interests of and value of AbbVie NewCo~~its obligations hereunder. The ~~Administrative~~ Designated Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Bridge Credit Agreement (Twenty-First Century Fox, Inc.), Bridge Credit Agreement

Conditions Precedent to Closing Date. ~~The~~ Subject to Section 3.04, the obligation of each Lender to make an Advance on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the ~~Shire~~ Target Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of ~~Shire~~the Target; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) confirmation as to the satisfaction of each condition set forth in clauses (d), ) and (e) below; (4) the Target Acquisition shall have been, or, within the time period permitted by the City Code, shall be, consummated in all material respects in accordance with the terms and conditions of the Scheme Documents except to the extent ~~relating to~~ not prohibited by the ~~Scheme), (f) and (i) (to the extent relating to the Scheme) below~~Loan Documents; and (45) each copy of the documents specified in ~~paragraphs~~ paragraph (ii~~) and (iii~~) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Scheme Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the ~~Shire~~ Target Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of ~~Shire~~the Target; (2) confirmation as to the satisfaction of each condition set forth in clauses (d~~), (e) (to the extent relating to the Takeover Offer), (f~~) and (~~i) (to the extent relating to the Takeover Offer~~e) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents.; and (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or a court of competent jurisdiction or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees ~~and other amounts~~ due and payable by the ~~Borrower, AbbVie and their Subsidiaries~~ Borrower to the ~~Arranger~~Arrangers, the Administrative Agent and the Lenders ~~under the Loan Documents or~~ pursuant to ~~any fee~~ paragraphs 1(i), (ii), (iii) or ~~similar letters relating to~~ (iv) of the ~~Loan Documents~~ Fee and Syndication Letter shall be ~~paid~~paid or satisfied from the proceeds of the proposed Advance, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. . (f) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of ~~AbbVie NewCo~~ the Borrower and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof~~. (i) After giving effect~~ ; provided that such Lender has used commercially reasonable efforts to make the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness Loans through an Affiliate of such ~~Scheme or purchase pursuant~~ Lender not subject to such ~~Takeover Offer~~ legal restriction; provided further, that the occurrence of such event in relation to one Lender shall ~~own equity interests in AbbVie NewCo representing more than 20.0%~~ not relieve any other Lender of ~~both the voting interests of and value of AbbVie NewCo~~its obligations to make Advances hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: 364 Day Bridge Credit Agreement (Takeda Pharmaceutical Co LTD), 364 Day Bridge Credit Agreement (Takeda Pharmaceutical Co LTD)

Conditions Precedent to Closing Date. The ~~obligation~~ obligations of ~~each Lender~~ the Lenders to make ~~an Advance~~ the Spin Transaction Term Loans and, if elected by the Company, the Acquisition Term Loans and the availability of the Revolving Facility on the Closing Date shall become effective on the first date on which each of the following conditions is ~~subject to the satisfaction~~ satisfied (or ~~waiver~~ waived in accordance with Section 9.01~~) of the following conditions~~: (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred. (b) If~~ received the ~~Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received~~following: (i) from each party hereto and thereto either (a) a counterpart of this Agreement and each other Loan Document signed on behalf of such party or (b) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party; (ii) copies of (a) the resolutions of the Board of Directors or similar governing body of each of the Company and each Guarantor, approving this Agreement, and (b) all documents evidencing other necessary corporate or limited liability company action, as the case may be, and governmental approvals, if any, with respect to this Agreement, in each case certified as of the Closing Date by the Secretary or an Assistant Secretary or other authorized officer of the Company or such Guarantor, as applicable; (iii) a certificate of the ~~Borrower signed~~ Secretary or an Assistant Secretary or other authorized officer of each of the Company and each Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of the Company and such Guarantor, as the case may be, authorized to sign this Agreement and the other documents to be delivered by ~~a director certifying: (1)~~ the ~~date on which the Scheme Circular was posted to the shareholders of Shire~~Company or such Guarantor hereunder; (2iv) a certificate of the Secretary or an Assistant Secretary or other authorized officer of each of the Company and each Guarantor, dated the Closing Date, attaching and certifying the correctness and completeness of the copies of the Company’s and such Guarantor’s Certificate of Incorporation and Bylaws or Certificate of Formation and Limited Liability Company Agreement, together, in each case, with a good standing certificate from the state of its organization, each to be dated a recent date ~~on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ prior to the ~~Registrar in accordance with Article 125(3) of the Jersey Companies Law~~Closing Date; (3v) ~~as to the satisfaction~~ legal opinions of ~~each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and~~ (i) (▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York and Delaware counsel to the ~~extent relating to~~ Loan Parties, dated the ~~Scheme) below; and (4) each copy~~ Closing Date, substantially in the form of ~~the documents specified in paragraphs~~ Exhibit C-1 hereto and (ii) ▇▇▇▇▇▇▇▇ and Wedge, special Nevada counsel to the Loan Parties, dated the Closing Date, substantially in the form of Exhibit C-2 hereto; (~~iii~~a) ~~below is correct~~ audited consolidated balance sheets and ~~complete~~ related consolidated statements of income, shareholders’ equity and ~~has not been amended or superseded on or~~ cash flows of the Company for the three most recently completed fiscal years of the Company ended at least 90 days prior to the Closing Date, ~~except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and~~ (iib) ~~a copy~~ unaudited consolidated balance sheets and related consolidated statements of income, shareholders’ equity and cash flows of the ~~Scheme Circular which is consistent in all material respects with~~ Company for each subsequent fiscal quarter (other than the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate fourth fiscal quarter of the ~~Borrower signed by a director certifying: (1~~Company’s fiscal year) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date; provided that the requirements of clauses (a) and (b) shall be deemed satisfied by the filing by the Company of its applicable Form 10-K and Form 10-Q or Form 10 or S-1, as the case may be, containing such financial statements within the time periods specified in such clauses and (c) (x) such pro forma consolidated balance sheets and related pro forma consolidated statements of income of the Company required to be delivered pursuant to SEC Form 10 requirements, in each case prepared after giving effect to the Transactions as if the Transactions had occurred as of ~~such~~ the relevant date pursuant to SEC Form 10 requirements (in the case of such balance sheet) or at the beginning of ~~such~~ the relevant period pursuant to SEC Form 10 requirements (in the case of such ~~statement~~ income statements) and (y) a detailed business plan or projections of ~~income~~the Company and its Subsidiaries for the period from the Closing Date through the fiscal year of the Company ended on or about March 31, 2023, in form and substance reasonably satisfactory to the Arrangers; (vii) a certificate of an authorized officer of the Company, dated the Closing Date, stating that (a) the ~~“Pro Forma Financials”~~Specified Representations are true and correct in all material respects (except those Specified Representations that are qualified by materiality, which shall be true and correct in all respects), ~~it being acknowledged that neither~~ (b) the ~~Administrative Agent nor any Lender~~ Company is in compliance with its obligations under Section 2.15(c), (c) the Spin Transaction shall ~~have any approval right as regards~~ be consummated in accordance with the ~~form or contents~~ terms and conditions of the ~~Pro Forma Financials).~~ Separation Agreement (hwithout waiver or amendment thereto agreed to by the Company that in any such case is materially adverse to the Lenders or the Arrangers (in their capacity as such) ~~It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion~~ without the consent of the ~~Advances~~ Arrangers (such consent not to be unreasonably withheld, conditioned or ~~restricting~~ delayed)) substantially concurrently with the ~~application~~ closing of the ~~proceeds thereof.~~ Spin Transaction Term Loans and, if elected by the Company, the Acquisition Term Loans and (id) ~~After giving effect to~~ the ~~consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer~~ Revolving Facility shall not be drawn on such date in an amount exceeding $100,000,000 after giving effect to the ~~initial purchase~~ Spin Transaction; (viii) a Notice of ~~Shire Shares pursuant~~ Borrowing in accordance with Section 2.02; (ix) (1) no later than five Business Days in advance of the Closing Date, all documentation and other information reasonably requested with respect to the ~~Takeover Offer~~Company and any Guarantor in writing by any Lender at least ten Business Days in advance of the Closing Date, ~~immediately after~~ which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the ~~Company Merger, the holders of Shire Shares immediately~~ PATRIOT Act and (2) at least five Business Days prior to the ~~effectiveness~~ Closing Date, the Company shall deliver a Beneficial Ownership Certification; and (x) as of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects. (b) The Collateral and Guarantee Requirement shall have been satisfied with respect to each Loan Party and the Administrative Agent and the Collateral Agent shall have received a completed Perfection Certificate dated the Closing Date and executed by an authorized officer of the Company, together with all attachments contemplated thereby; provided, however, that the delivery of any document(s) or instrument(s) necessary to satisfy the Collateral and Guarantee Requirement (except (A) for the execution and delivery of the Collateral Documents (other than any Mortgage) and (B) to the extent that a Lien on Collateral may be perfected by (x) the filing of a financing statement under the UCC or (y) the delivery of certificates evidencing Equity Interests in any Subsidiary of the Company owned by any Loan Party that constitutes Collateral and constitutes a “certificated security” within the meaning of Section 8-102(a)(4) of the UCC) will not constitute conditions precedent to the Advances on the Closing Date after the Company’s use of commercially reasonable efforts to provide such ~~Scheme~~ items on or ~~purchase~~ prior to the Closing Date; provided that (1) certificates required to be delivered pursuant to clause (y) above may, with the consent of the Administrative Agent, be delivered in such ~~Takeover Offer~~ period after the Closing Date as the Administrative Agent may agree and (2) the Company shall ~~own equity~~ deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions, as may be required to perfect such security interests within thirty (30) days or, with respect to any Mortgaged Property and the items required by clause (e) of the definition of Collateral and Guarantee Requirement relating thereto, ninety (90) days after the Closing Date (subject, in ~~AbbVie NewCo representing more than 20.0%~~ each case, to extensions approved by the Administrative Agent in its reasonable discretion). (c) The Administrative Agent and the Collateral Agent shall have received all fees and other amounts previously agreed in writing by the Arrangers and the Company to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of ~~both~~ all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the ~~voting interests of and value of AbbVie NewCo~~Company under any Loan Document. The Administrative Agent shall notify the ~~Borrower~~ Company and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Credit Agreement (Perspecta Inc.), Credit Agreement (Perspecta Inc.)

Conditions Precedent to Closing Date. ~~The obligation~~ In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the time that each ~~Lender~~ of the following conditions has been satisfied (the date, if any, upon which such conditions are first satisfied is referred to ~~make an Advance~~ herein as the “Closing Date”): (a) Each Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof; provided, however, that Borrowers shall not be required to deliver a Lien Waiver on the Closing Date ~~is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred~~for a location for which Agent has established a Rent and Charges Reserve. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents[Reserved.] (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ Each Collateral and Guarantee Requirement shall have been satisfied and Agent shall have ~~received: (i)~~ received a ~~certificate~~ completed Perfection Certificate dated as of the ~~Borrower~~ Closing Date and signed by an executive officer or Financial Officer of each Obligor, together with all attachments contemplated thereby, including the results of a ~~director certifying: (1)~~ search of the ~~date on which the Takeover Offer Document was posted~~ Uniform Commercial Code, PPSA and equivalent filings made with respect to the ~~shareholders of Shire; (2) as to~~ Obligors in the ~~satisfaction of each condition set forth in clauses (d), (e) (to~~ jurisdictions contemplated by the ~~extent relating to the Takeover Offer), (f)~~ Perfection Certificate and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy~~ copies of the ~~documents specified in paragraph~~ financing statements (iior similar documents) ~~below is correct~~ disclosed by such search and ~~complete and has not been amended or superseded on or prior~~ evidence reasonably satisfactory to ~~the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and~~ Agent (4including PPSA estoppel letters) that the ~~Takeover Offer has been declared unconditional in all respects without any material amendment, modification~~ Liens indicated by such financing statements (or ~~waiver of the conditions to the Takeover Offer~~ similar documents) are permitted by Section 10.2.2 or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been ~~required~~ released or will be released pursuant to ~~the City Code~~ UCC-3 financing statements, PPSA termination statements or ~~required by the Panel or are permitted under the Loan Documents~~other release documentation delivered to Agent. (d) ~~On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Agent shall have received duly executed agreements establishing and/or evidencing each Dominion Account and (ywhere applicable) ~~all the Certain Funds Representations are true or~~related lockbox and each Controlled Account, ~~if a Certain Funds Representation does not include a materiality concept~~each in form and substance, ~~true in all material respects~~and with financial institutions, satisfactory to Agent. (e) ~~Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger~~ Agent shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummatedreceived certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each ~~case~~Borrower and each Mexican Domiciled Obligor certifying that, ~~without~~ after giving effect to the initial Loans and transactions hereunder, (i) no Default exists; (ii) the representations and ~~there shall not have been~~warranties set forth in Section 9 are true and correct; and (iii) ~~any modifications, amendments, consents, requests or waivers~~ such Borrower has complied with all agreements and conditions to be satisfied by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by it under the Loan Documents. (f) ~~All~~ Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents (including, without limitation, charter documents of such Obligor that are, except with respect to a UK Domiciled Obligor or a Dutch Domiciled Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization) are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and (with respect to the U.S. Obligors, together with the resolutions delivered pursuant to Section 6 of the Original Loan Agreement) constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as well as any local counsel to Obligors or Agent (including, without limitation, Canadian, English, Mexican and Dutch counsel), in form and substance satisfactory to Agent. (h) Agent shall have received good standing certificates for each Obligor (other than the Dutch Domiciled Obligors) issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction in the United States, Canada, the United Kingdom, Mexico or the Netherlands where such Obligor’s conduct of business or ownership of Property necessitates qualification (in each case, to the extent that such certificates or certificates of similar subject matter are issued, in general, by such officials in such jurisdictions). (i) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Obligors, together with a loss payable endorsement naming Agent as loss payee and reasonably acceptable to Agent, all in compliance with the Loan Documents. (j) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the financial condition of Obligors and their Subsidiaries, taken as a whole, or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2014. The capital structure of the Obligors shall be satisfactory to Agent. (k) Borrowers shall have paid all fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses (provided that legal fees required to be paid as a condition precedent to the ~~Arranger,~~ occurrence of the ~~Administrative~~ Closing Date shall be limited to such legal fees as to which Borrowers have received a summary invoice) required to be paid to Agent ~~and~~ and/or the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date~~. The Administrative~~ . (l) Agent shall have received a ~~Notice of~~ Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries Base Report as ~~of and for the twelve-month period ending on the last day~~ of the most ~~recently completed four-fiscal quarter period ended~~ recent month ending at least 45 15 days prior to the Closing Date. (m) Agent and 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, ~~prepared after giving effect~~ including the Patriot Act and other AML Legislation. (n) Agent shall have received executed copies of the any Term Loan Document or modifications to the ~~Transactions as if~~ Term Loan Documents executed in connection with the ~~Transactions had occurred as of such date~~ Transactions, which shall be in form and substance satisfactory to Agent and shall be in full force and effect. (~~in the case of such balance sheet~~o) ~~or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative~~ Agent ~~nor any Lender~~ shall have received the originals of any ~~approval right as regards the form or contents~~ pledged Collateral representing all of the ~~Pro Forma Financials~~issued and outstanding shares of the Equity Interests constituting Collateral and required to be delivered to Agent under the Loan Documents, in each case together with stock powers (or the equivalent, including, without limitation, endorsements (endosos)) duly executed in blank with respect thereto (except with respect to uncertificated pledged Collateral and such Collateral that constitutes Term Priority Collateral). (hp) ~~It is~~ Agent shall have received payoff or release letters, in form and substance satisfactory to Agent, confirming that the Obligors and their Subsidiaries are released from all obligations under any Debt not ~~illegal for any Lender to lend~~ expressly permitted by this Agreement and ~~there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion~~ providing a release of all of the ~~Advances or restricting~~ Liens existing with respect to any such Debt in and to the ~~application~~ assets of the ~~proceeds thereof~~applicable Obligors and their Subsidiaries, together with termination statements and other documentation evidencing the termination of any such Liens in and to the properties and assets of the applicable Obligors and their Subsidiaries. (iq) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall ~~notify~~ have received evidence, in form and substance satisfactory to Agent, that the Mexican Domiciled Obligors have irrevocably appointed the Borrower ~~and~~ Agent, before a Mexican notary public, a special irrevocable power of attorney, in the ~~Lenders~~ form of ~~the Closing Date~~ Exhibit E, to act as ~~soon as practicable upon~~ its ~~occurrence, and such notice shall be conclusive and binding~~agent for service of process.

Appears in 2 contracts

Sources: Loan Agreement (Horizon Global Corp), Loan Agreement (Horizon Global Corp)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) reserved; (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ it that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, of counsel to the ~~Loan Documents~~ Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (j) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (l) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gm) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (n) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 2 contracts

Sources: Credit and Security Agreement (Blue Owl Credit Income Corp.), Credit and Security Agreement (Blue Owl Credit Income Corp.)

Conditions Precedent to Closing Date. The ~~obligation~~ agreement of each Lender to make ~~an Advance~~ Term Loans on the Closing Date is subject solely to the satisfaction (or waiver ~~in accordance~~ by the Administrative Agent and the Required Lenders, prior to or substantially concurrently with ~~Section 9.01)~~ the making of the Term Loans on the Closing Date, of the following ~~conditions~~conditions precedent: (1) The Administrative Agent shall have received the following: (a) ~~The Effective Date shall have occurred~~this Agreement, dated as of the Closing Date, duly executed and delivered by Holdings and each Borrower and the other parties party thereto. (b) If the ~~Shire Acquisition is effected~~ US Collateral Agreement, the Guaranty, the Intellectual Property Security Agreements and the Fee Letter, in each case, dated as of the Closing Date, duly executed and delivered by ~~way~~ each of ~~a Scheme,~~ the Loan Parties party thereto. (2) The Chapter 11 Cases shall have been commenced in the Bankruptcy Court and all of the First Day Orders shall have been entered by the Bankruptcy Court and such orders and all related pleadings shall be in form and substance reasonably satisfactory to the Required Lenders and consistent with the Approved Budget. (3) The Interim DIP Financing Order shall have been entered by the Bankruptcy Court within three (3) Business Days of the Petition Date and the Administrative Agent shall have ~~received: (i)~~ received a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme true and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each complete copy of ~~the documents specified in paragraphs (ii)~~ such order, and ~~(iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent~~ such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions order shall be in the ~~Press Release~~ form of Exhibit B, hereto, be in full force and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) effect and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have ~~been) any modifications~~been reversed, ~~amendments~~modified, ~~consents~~amended, ~~requests~~ stayed or ~~waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the~~ vacated absent prior written consent of the Administrative Agent and the Required Lenders. (4) No order shall have been entered appointing a trustee, examiner or receiver (or local law equivalent) with respect to any of the Loan Parties’ or their respective Subsidiaries’ business, properties or assets. (5) The Borrower shall have paid (a) to the Administrative Agent, ~~except, in each case,~~ all fees required to be paid on the ~~extent such modifications, amendments, consents, requests or waivers have been required~~ Closing Date pursuant to the ~~City Code or the Panel or are not prohibited by the Loan Documents.~~ Fee Letter, and (fb) ~~All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders~~ Lenders, the fees, costs and expenses then earned, due and payable under the Loan Documents ~~or pursuant to any fee or similar letters relating to~~ (including, without limitation, the fees, costs and expenses of the Lender Advisors in connection with the Chapter 11 Cases and the negotiation, preparation, execution and delivery of the Loan Documents ~~shall be paid, to~~ and the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02RSA). (g6) The Administrative Agent shall have received a ~~pro forma consolidated balance sheet~~ certificate of a Responsible Officer of Holdings, dated the Closing Date, and ~~related pro forma consolidated statement~~ attaching (or referencing resolutions made available to the Agent and Lender Advisors) and certifying true and complete copies of ~~income~~ resolutions of ~~AbbVie NewCo~~ each of the Debtors, duly adopted by the Board of Directors (or equivalent body in the Relevant Jurisdiction of such Debtor, including if required by law in any applicable jurisdiction, a copy of the resolutions or its shareholders meeting) of such Debtor authorizing the execution, delivery and performance of the Loan Documents to which it is a party or any other document delivered in connection herewith on the Closing Date and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect; (7) [reserved] (8) [reserved] (9) [reserved] (10) [reserved] (11) The Administrative Agent, for its ~~Subsidiaries as~~ benefit and the benefit of each other Secured Party, shall have been granted a perfected lien on the Collateral by the Interim DIP Financing Order on the terms and conditions and, with the requisite priority, set forth herein and in the other Loan Documents. The Security Documents and the Interim DIP Financing Order, upon entry thereof and subject to the terms thereof, shall be effective to create in favor of the Collateral Agents, for the ~~twelve-month period ending~~ benefit of the Secured Parties, legal, valid, enforceable, perfected and (if applicable) unavoidable Liens on and security interests in the Collateral as set forth in Section 3.14 and Section 20 to the Interim DIP Financing Order. The Loan Parties shall have delivered UCC financing statements (or, where available, local equivalent), in suitable form for filing, and shall have made arrangements for the filing thereof that are reasonably acceptable to the Administrative Agent and the Required Lenders. (12) The Borrowers and the Administrative Agent shall have established the DIP Account. (13) To the extent included in the Collateral and required to be pledged pursuant to the Security Documents on the ~~last day~~ Closing Date, the Loan Parties shall have used their commercially reasonable efforts to deliver to the Administrative Agent the certificates representing the Equity Interests (if such Equity Interests are certificated) owned by each Loan Party, in each case together with an undated stock power or stock transfer form for each such certificate executed in blank by a duly authorized officer of the ~~most recently completed four-fiscal quarter period ended~~ pledgor thereof, to the extent applicable. (14) The Administrative Agent shall have received the Approved Budget in form and substance acceptable to the Required Lenders, it being understood that the budget attached to the form of Interim DIP Financing Order attached hereto as Exhibit B is an Approved Budget. (15) The Borrowers shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees, costs and expenses then earned, due and payable under the Loan Documents (including, without limitation, the fees, costs and expenses of the Lender Advisors in connection with the Chapter 11 Cases and the negotiation, preparation, execution and delivery of the Loan Documents and the RSA). (16) The RSA shall not have been terminated by all of the applicable parties thereto and shall be in full force and effect and the RSA shall not have been modified, amended, or otherwise changed absent prior written consent of each of the parties thereto required for such modification, amendment or change. (17) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower on behalf of the Loan Parties certifying that (x) the conditions in this Section 4.01 have been satisfied and (y) either (i) all authorizations or approvals of any Governmental Authority and approvals or consents of any other Person, required in connection with the Loan Documents shall have been obtained, or (ii) that no such authorizations, approvals, and consents are so required. (18) The Administrative Agent shall have received a customary legal opinion of K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special New York counsel to the Loan Parties and covering such matters customarily covered in opinions of this type as the Required Lenders shall reasonably request. (19) Other than as a result of the Chapter 11 Cases or as otherwise disclosed in the first day declaration in the Chapter 11 Cases, since December 31, 2022, there has not occurred any event, occurrence, effect, fact, condition, change or development that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (20) There shall exist no action, suit, investigation, litigation or proceeding pending or (to the knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality (other than the Chapter 11 Cases and any action, suit, investigation or proceeding arising from the commencement and continuation of the Chapter 11 Cases or the consequences that would normally result from the commencement and continuation of the Chapter 11 Cases) that is not stayed and could reasonably be expected to result in a Material Adverse Effect. (21) All necessary governmental and third party consents and approvals necessary in connection with this Agreement and the transactions contemplated hereby shall have been obtained (without the imposition of any materially adverse conditions that are not acceptable to the Required Consenting First Lien Lenders (as defined in the RSA)) and shall remain in effect; and the making of the loans under this Agreement shall not violate any material applicable requirement of law and shall not be enjoined temporarily, preliminarily or permanently. (22) The Administrative Agent shall have received at least 45 two (2) Business Days prior to the Closing Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least three (3) days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither Date by the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that it reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower PATRIOT Act and the ~~Lenders~~ Proceeds of ~~the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~Crime Act.

Appears in 1 contract

Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of the Closing Date and the obligations of each Lender to make ~~an Advance~~ Loans on the Closing Date is are subject to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ receipt by the Facility Agent of each of the ~~following conditions:~~agreements and other documents, and the conditions precedent set forth below, each of which shall be (x) in form and substance reasonably satisfactory to the Facility Agent and the Lenders and (y) if applicable, in full force and effect (unless, in each case, waived by each Lender): (a) ~~The Effective Date shall have occurred.~~the Existing Loan Agreement duly executed and delivered by the parties hereto; (b) If the ~~Shire Acquisition is effected~~ following documents, each certified as indicated below: (A) a copy of the articles of incorporation of the Borrower, together with any amendments thereto, certified by ~~way~~ the Secretary of State of the Borrower’s state of organization dated as of a ~~Scheme~~recent date; (B) a copy of a certificate as to the good standing of, and payment of franchise taxes by, the ~~Administrative Agent shall have received~~Borrower from the Secretary of State of the Borrower’s state of organization dated as of a recent date; and (C) a certificate of the Borrower, executed by an Authorized Officer certifying: (i) that attached to such certificate is a ~~certificate~~ true and complete copy of the ~~Borrower signed by a director certifying:~~articles of incorporation and by-laws of the Borrower, in each case as amended and in effect on the date of such certificate, (1ii) that attached to such certificate is a true and complete copy of resolutions duly adopted by the ~~date on which~~ authorized governing body of the ~~Scheme Circular was posted to~~ Borrower, authorizing the ~~shareholders~~ execution, delivery and performance of ~~Shire;~~the Financing Documents and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (~~2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3~~iii) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth~~ officer, member or partner (as applicable) of the Borrower executing the Financing Documents (and the Facility Agent and each Lender may conclusively rely on such incumbency certification until it receives notice in ~~clauses~~ writing from the Borrower); (c) delivery of executed opinions from (x) D▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower, and M▇▇▇▇▇ ▇. ▇▇▇▇, Pennsylvania counsel to the Borrower, substantially in the form of Exhibit D-1, and (y) Milbank, Tweed, H▇▇▇▇▇ & M▇▇▇▇▇ LLP, special New York counsel to the Facility Agent, substantially in the form of Exhibit D-2; (d) a certificate of an Authorized Officer of the Borrower, certifying that the Borrower is not and will not be, after giving effect to the Borrowing Request made on or as of the Closing Date, in breach of the covenants described in Section 6.01(j), ; (e) (copies of the regulatory approvals, authorizations and consents listed in Schedule 4(e) required in respect of the Keystone/Conemaugh Acquisition, certified to be true and correct copies by an officer of the ~~extent relating to the Scheme),~~ Borrower; (f) ~~and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ a written instruction executed by an Authorized Officer of the ~~documents specified~~ Borrower directing the Facility Agent to pay from the utilization of the Facility all fees, costs and expenses due and payable by the Borrower under the Financing Documents and any other fees and expenses as the Borrower shall have agreed or shall otherwise be required to pay to any Lender or the Facility Agent in ~~paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ connection herewith on or prior to the ~~Closing Date~~utilization of the Facility, ~~except~~ including, without limitation, the fees and expenses of special New York counsel to the ~~extent such changes thereto~~ Facility Agent and the Joint Mandated Lead Arrangers, in connection with the negotiation, preparation, execution and delivery of this Agreement and the other Financing Documents; (g) evidence that the Equity Contribution in a minimum amount of not less than $141,000,000 shall have been ~~required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and~~funded in full in cash; (iih) ~~a copy~~ certification from an Authorized Officer of the ~~Scheme Circular which is consistent in all material respects with~~ Borrower that the ~~terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have~~ Keystone/ Conemaugh Acquisition has been ~~required pursuant to the City Code~~ or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received:will be simultaneously completed; (i) documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act, shall have been received by the Facility Agent and shall include, without limitation, evidence consisting of the following information (i) the Borrower’s full legal name, (ii) the Borrower’s address and mailing address, (iii) the Borrower’s W-9 forms including its tax identification number, (iv) the Borrower’s articles of incorporation, (v) a ~~certificate~~ list of directors of the Borrower ~~signed by a director certifying:~~ or list of such persons controlling the Borrower and (1vi) an executed resolution or other such documentation stating who is authorized to open an account for the ~~date on which the Takeover Offer Document was posted~~ Borrower, in each case in form and substance reasonably satisfactory to the ~~shareholders of Shire~~Facility Agent, and such other similar information relating to the Borrower and its Subsidiaries as may reasonably be requested by the Facility Agent; (2j) ~~as to the satisfaction~~ delivery of ~~each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and~~ (i) the consolidated audited statements of income, stockholder’s equity and cash flows of the Borrower and its Subsidiaries for the most recent fiscal year of the Borrower; and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for the for each fiscal quarter and portion of the fiscal year ended after the delivery of the financial statements delivered pursuant to ~~the extent relating to the Takeover Offer~~clause (i) ~~below~~above, which financial statements shall be prepared in accordance with GAAP; (3k) ~~each copy~~ payment of all fees due as of the ~~documents specified~~ Closing Date as the Borrower shall have agreed to pay to any Lender or the Facility Agent in ~~paragraph (ii) below is correct~~ connection herewith, including the fees and ~~complete and has not been amended or superseded on or prior~~ expenses of New York counsel to the ~~Closing Date~~Facility Agent, ~~except to~~ in connection with the ~~extent such changes thereto have been required pursuant to~~ negotiation, preparation, execution and delivery of this Agreement, the ~~City Code or required by~~ other Financing Documents and the ~~Panel or are not prohibited by the Loan Documents; and~~transactions contemplated hereby and thereby; (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (xl) no ~~Certain Funds~~ Default or Event of Default has occurred and is ~~continuing~~ continuing, or would result from the proposed Borrowing or from the application of the proceeds therefrom; (m) the representations and ~~(y) all~~ warranties of the ~~Certain Funds Representations are~~ Borrower contained in Article V shall be true ~~or, if a Certain Funds Representation does not include a materiality concept, true~~ and correct in all material ~~respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each~~ respects on and as of the ~~Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence~~ date of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or ~~its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case,~~ to the extent that such ~~modifications~~representations and warranties specifically refer to an earlier date, ~~amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents.~~as of such earlier date); and (fn) ~~All fees and other amounts due and payable by~~ the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Facility Agent shall have received a ~~Notice of~~ Borrowing Request in accordance with the requirements of Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Loan Agreement (Duquesne Light Holdings Inc)

Conditions Precedent to Closing Date. The ~~obligation of each Lender to make an Advance~~ Closing Date shall occur on the ~~Closing Date is subject to~~ date that each of the ~~satisfaction~~ following conditions shall have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~9.05): (a) ~~The Effective Date~~ receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have ~~occurred.~~been received, receipt by the Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party); (b) If receipt by the ~~Shire Acquisition is effected by way~~ Agent of a ~~Scheme~~certificate, dated the ~~Administrative Agent shall have received:~~ Closing Date and signed by a duly authorized officer of the Company, certifying that (i) ~~a certificate~~ immediately before and after the Closing Date, no Default shall have occurred and be continuing and (ii) the representations and warranties of the ~~Borrower signed by a director certifying: (1)~~ Company contained in this Agreement shall be true on and as of the ~~date on which the Scheme Circular was posted to the shareholders of Shire~~Closing Date; (2c) receipt by the ~~date on which~~ Agent of all documents the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ Agent may reasonably request relating to the ~~Registrar in accordance with Article 125(3)~~ existence and good standing of the ~~Jersey Companies Law~~Company, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Agent; (3d) ~~as to~~ receipt by the ~~satisfaction~~ Agent of ~~each condition set forth in clauses (d)~~all documentation and other information required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; (e) (receipt by the Agent and the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Commitment Letter or the Fee Letters, including to the extent ~~relating~~ invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the ~~Scheme), (f) and (i) (to the extent relating to the Scheme) below~~Company hereunder or thereunder; and (4f) ~~each copy~~ receipt by the Agent of (i) an opinion of the ~~documents specified in paragraphs~~ General Counsel of the Company, covering such matters as the Agent may reasonably request and (ii) ~~and (iii) below is correct and complete and has not been amended or superseded on or prior~~ an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the ~~Closing Date~~Company, ~~except to~~ covering such matters as the ~~extent such changes thereto have been required pursuant to~~ Agent may reasonably request. The Agent shall promptly notify the ~~City Code or required by~~ Company, the ~~Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release~~ Lenders and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Issuing Lenders of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and such notice shall be conclusive and ~~binding~~binding on all parties hereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwell Collins Inc)

Conditions Precedent to Closing Date. The ~~obligation of each Lender~~ conditions precedent to ~~make an Advance~~ closing on the Closing Date ~~is subject~~ shall be the execution, where applicable, and delivery to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ Agent of the ~~following conditions~~items described in this Section 8.1, each dated (unless otherwise indicated) the Closing Date and, with sufficient copies for each Lender: (a) ~~The Effective Date shall~~ From each Borrower: (i) a counterpart of this Agreement (to which all of the Exhibits and Schedules have ~~occurred~~been attached) executed by the Borrowers, the Agent, the Floor Plan Agent, the Swing Line Bank, the Issuing Bank and the Lenders; (ii) Notes properly executed by the Borrowers to the Lenders, respectively; and (iii) the Swing Line Note properly executed by the Borrowers to the Swing Line Bank. (b) If from each Borrower a ratification of all prior liens and security interests granted in the ~~Shire Acquisition is effected by way~~ below named documents in a form satisfactory to Agent (the “Ratification Agreements”) or, if any Borrower has not previously executed same, executed originals of ~~a Scheme,~~ the ~~Administrative Agent shall have received~~following: (i) the Security Agreement; (ii) the Escrow and Security Agreement; (iii) the GM Borrower Guaranty; and (iv) any other necessary Security Documents in the form satisfactory to the Agent and its counsel; each of which, if required by this Agreement, shall be duly executed by the parties thereto. (c) from each Borrower (i) a certificate of the ~~Borrower signed~~ Secretary or an Assistant Secretary of said Borrower, certifying that (A) attached are true and complete copies of its constituent documents, (B) attached thereto is a true and complete copy of resolutions or unanimous consent duly adopted by its Board of Directors, members or partners authorizing the execution, delivery and performance of this Agreement, the Notes and/or Loan Documents to which it is a ~~director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ party, and that ~~the Court Order has~~ such resolutions have not been ~~duly delivered to the Registrar~~ modified, rescinded or amended and are in ~~accordance with Article 125(3) of the Jersey Companies Law;~~ full force and effect, and (3C) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d)~~officer of each Borrower executing this Agreement, ~~(e) (to~~ the ~~extent relating to the Scheme)~~Notes, ~~(f) and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ any of the Loan Documents or other documents ~~specified~~ delivered in ~~paragraphs~~ connection herewith or therewith; and (ii) ~~and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ such other documents as the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documentsmay reasonably request. (d) On from each Borrower a certificate of a President, Senior Vice President, an Executive Vice President or a Vice President of each Borrower certifying (i) the ~~date~~ truth of the ~~applicable borrowing request~~ representations and ~~on the proposed date of~~ warranties made by such ~~borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Borrower in this Agreement, and (yii) ~~all~~ the ~~Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects~~absence of the occurrence and continuance of any Default or Event of Default. (e) ~~Where~~ the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers Agent’s Letter duly executed by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan DocumentsCompany. (f) ~~All fees and other amounts due and payable~~ the Floor Plan Agent’s Letter duly executed by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02Company. (g) ~~The Administrative Agent shall have received a pro forma consolidated balance sheet~~ an opinion of counsel to the Borrowers and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ any Subsidiary which signs any of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Loan Documents, addressed to the ~~Closing Date, prepared after giving effect~~ Agent and the Lenders and in form and substance reasonably satisfactory to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Agent. (h) ~~It is not illegal for any~~ an Administrative Questionnaire completed by each Lender ~~to lend and there is no injunction~~and, ~~restraining order or equivalent prohibiting any Lender from lending its portion of~~ if required, the ~~Advances or restricting the application of the proceeds thereof~~tax forms set forth in Section 5.14. (i) ~~After giving effect~~ an intercreditor agreement, reasonably satisfactory to the ~~consummation~~ Agent, Floor Plan Agent and Required Lenders (which shall evidence their satisfaction by execution of this Agreement), setting forth the respective rights of each party in the assets of the ~~Scheme~~Company and the Borrowers executed with, ~~or if~~ and received from, each provider of Permitted New Vehicle Floor Plan Indebtedness. (j) evidence that the ~~Shire Acquisition is implemented~~ fees and disbursements required to be paid by ~~way of a Takeover Offer after giving effect to~~ the ~~initial purchase of Shire Shares~~ Company pursuant to Section 5.4 and Section 13.4 on the ~~Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase~~ Closing Date have been paid. (k) evidence that all UCC-1 filings and other Liens that are not permitted pursuant to ~~such Takeover Offer shall own equity interests~~ this Agreement and which are existing or reflected in ~~AbbVie NewCo representing more than 20.0% of both~~ searches performed by the ~~voting interests of and value of AbbVie NewCo. The Administrative~~ Agent ~~shall notify the Borrower and the Lenders~~ or its counsel as of the Closing Date have been released and/or terminated to the reasonable satisfaction of the Agent and its counsel. (l) evidence of insurance required by Section 9.3. (m) all documentation and other information requested by the Agent to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Act (as ~~soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~defined in Section 13.15).

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to the satisfaction~~ following conditions precedent have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~8.01): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) If Since December 31, 2019, there shall not have occurred any event or condition that has had or would be reasonably expected to have, either individually or in the ~~Shire Acquisition is effected~~ aggregate, a Material Adverse Effect. (c) All fees due to the Administrative Agent, the Arrangers and the Lenders shall have been paid, and all expenses of the Administrative Agent and the Arrangers that are required to be paid or reimbursed by ~~way of a Scheme~~the Borrower and that have been invoiced at least three Business Days prior to the Closing Date shall have been so paid or reimbursed. (d) On the Closing Date, the following statements shall be true and the Administrative Agent shall have ~~received~~received a certificate of the Borrower, dated the Closing Date, stating that: (i) ~~a certificate~~ Each of the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ representations and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition~~ warranties set forth in ~~clauses~~ Section 4.01 are true and correct in all material respects (~~d), (e) (~~except to the extent ~~relating to the Scheme~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects), ~~(f)~~ on and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy~~ as of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent any such ~~changes thereto~~ representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been ~~required pursuant to the City Code or required by the Panel or~~ true and correct in all material respects (except to the extent ~~not prohibited by the Loan Documents~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date; and (ii) No event has occurred and is continuing, or shall occur as a ~~copy~~ result of the ~~Scheme Circular which is consistent in all material respects with~~ occurrence of the ~~terms and conditions in the Press Release and the Scheme Resolutions~~Closing Date, ~~in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by~~ that constitutes a ~~court of competent jurisdiction or are not prohibited by the Loan Documents~~Default. (ce) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the~~ The Administrative Agent shall have ~~received~~received on or before the Closing Date, each dated on or about such date: (i) a Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (ii) A certificate of the Secretary or an Assistant Secretary of the Borrower ~~signed~~ certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by ~~a director certifying:~~it hereunder; and (1iii) ~~the date on which the Takeover Offer Document was posted~~ A favorable opinion letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the ~~shareholders of Shire; (2) as to~~ Borrower, in the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded form agreed on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The ~~Administrative Agent~~ 2018 Credit Agreement shall have ~~received a Notice of Borrowing~~ been terminated in accordance with Section ~~2.02~~8.15. (g) ~~The~~ To the extent requested by a ▇▇▇▇▇▇, delivery of executed promissory notes. (h) To the extent requested by any Lender through the Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended in writing at least ~~45 days~~ 10 Business Days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided the documentation and other information to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~form or contents of~~ Patriot Act and the ~~Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction~~Beneficial Ownership Regulation, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately at least three Business Days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoClosing Date. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~such conditions precedent being satisfied (or waived in accordance with Section 8.01), and such notice shall be conclusive and ~~binding~~binding evidence of the occurrence thereof.

Appears in 1 contract

Sources: Credit Agreement (Abbott Laboratories)

Conditions Precedent to Closing Date. The occurrence of the Closing Date, and the obligation of ~~each Lender~~ the Issuing Bank to ~~make an Advance on the Closing Date~~ issue any LOC, is subject to the satisfaction ~~(or waiver in accordance with Section 9.01)~~ of the following ~~conditions~~conditions precedent: (a) The ~~Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the~~ Administrative Agent shall have ~~received~~received the following, each dated the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and in sufficient copies for each Bank: (i) ~~a certificate~~ Certified copies of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) resolutions of the ~~Jersey Companies Law; (3) as to~~ Board of Directors of Pulte approving the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited transactions contemplated by the Loan Documents. (ii) A certificate of Pulte, signed by a ~~copy~~ Responsible Officer and by the Secretary or any Assistant Secretary of Pulte, certifying as to (1) the ~~Takeover Offer Document which is consistent~~ truth in all material respects ~~with~~ of the ~~terms~~ representations and ~~conditions~~ warranties contained in the ~~Offer Press Announcement, except~~ Loan Documents as though made on and as of the Closing Date and (2) the absence of any Default. (iii) A certificate of the Secretary or an Assistant Secretary of Pulte certifying the names and true signatures of the officers of Pulte that are authorized to ~~the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under~~ sign the Loan ~~Documents~~Documents and the other documents to be delivered hereunder. (iv) Favorable opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for Pulte, in substantially the form of Exhibit D. (b) There shall exist no action, suit, investigation, litigation or proceeding affecting Pulte or any of its Subsidiaries pending or threatened in writing before any court, governmental agency or arbitrator that (x) would be reasonably expected to have a Material Adverse Effect or (y) would reasonably be expected to materially adversely affect the legality, validity or enforceability of any Loan Document or the transactions contemplated thereby. (c) No development or change shall have occurred after March 31, 2009, and no information shall have become known after such date, that has had or would reasonably be expected to have a Material Adverse Effect. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger Pulte shall have ~~been, or substantially concurrently with the occurrence~~ paid all fees of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the ~~Lenders under~~ Banks and all expenses of the ~~Loan Documents or pursuant to any fee or similar letters relating~~ Administrative Agent (including the fees and expenses of counsel to the ~~Loan Documents shall be paid~~Administrative Agent), in each case to the extent ~~invoiced at least one Business Day prior to the Closing Date by the relevant person~~ then due and ~~to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02~~payable. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Facility Agreement (Pulte Homes Inc/Mi/)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective and the Closing Date shall occur when Administrative Agent has received all of ~~each Lender to make an Advance~~ the agreements, documents, instruments and other items described in this Section 4.01 and the other conditions precedent set forth in this Section 4.01 have been satisfied (and on the Closing Date, Administrative Agent shall deliver written notice to Borrower and Lenders that such conditions precedent have been satisfied and that the Closing Date ~~is subject to the satisfaction (or waiver in accordance with Section 9.01)~~ has occurred, which written notice shall be conclusive of ~~the following conditions:~~such occurrence): (a) ~~The Effective~~ Unless waived by all Lenders, each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates recently before, the Closing Date ~~shall~~ and each in form and substance satisfactory to Administrative Agent and its legal counsel: (i) Executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower; (ii) Notes executed by Borrower in favor of each Lender requesting same, substantially in the form attached as Exhibit C; (iii) Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent may request to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof; (iv) Such evidence as Administrative Agent may request to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's certificate of incorporation and bylaws and certificates of good standing and/or qualification to engage in business; (v) A certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and (d) have ~~occurred~~been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect, and (C) the current Debt Ratings, together with a Compliance Certificate as of March 31, 2001 that gives effect to results of operations for the period ended on such date; (vi) Opinions of counsel to Borrower substantially in the form of Exhibit E; and (vii) Such other assurances, certificates, documents, consents or opinions as Administrative Agent or Required Lenders reasonably may require. (b) If Any fees required to be paid on or before the ~~Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ Closing Date shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentspaid. (c) ~~If the Shire Acquisition is effected~~ The representations and warranties made by ~~way of a Takeover Offer~~Borrower herein, ~~the Administrative Agent~~ or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith, shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is be correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects ~~with~~ on and as of the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan DocumentsClosing Date. (d) ~~On the date~~ No Default or Event of ~~the applicable borrowing request~~ Default shall have occurred and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respectsbe continuing. (e) ~~Where~~ All consents or approvals of, filings with, and other actions by, any Governmental Authority that are necessary or appropriate for the ~~Shire Acquisition is to be implemented~~ execution, delivery and performance by ~~way of a Scheme, each~~ Borrower of the ~~Shire Acquisition and the Company Merger~~ Loan Documents shall have ~~been~~been obtained, made or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documentstaken. (f) ~~All fees and other amounts due and payable~~ Unless waived by ~~the Borrower~~Administrative Agent, ~~AbbVie and their Subsidiaries to the Arranger, the~~ Borrower shall have paid all Attorney Costs of Administrative Agent ~~and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid,~~ to the extent invoiced ~~at least one Business Day~~ prior to ~~the Closing Date by the relevant person and to the extent such amounts are payable~~ or on ~~or prior to~~ the Closing Date~~. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02~~. (g) ~~The Administrative Agent~~ All commitments under the Prior 364-Day Agreement shall have ~~received a pro forma consolidated balance sheet~~ been terminated and ~~related pro forma consolidated statement~~ all amounts owing thereunder through the date of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender termination shall have ~~any approval right as regards the form or contents of the Pro Forma Financials)~~been paid in full. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (Comcast Corp)

Conditions Precedent to Closing Date. The ~~obligation~~ obligations of ~~each Lender~~ the Lenders to make an the First Advance ~~on the Closing Date is~~ hereunder are subject to satisfaction by the ~~satisfaction (or waiver in accordance~~ Borrower with ~~Section 9.01)~~ each of the following ~~conditions~~conditions precedent, which conditions precedent are for the sole and exclusive benefit of the Lenders and may be waived in writing by the Lenders: ~~(a) The Effective Date~~ 7.1.1 no Default or Event of Default shall have ~~occurred. (b) If the Shire Acquisition is effected by way~~ occurred and be continuing nor shall there be any such Default or Event of ~~a Scheme~~Default after giving effect to this Agreement, the ~~Administrative Agent~~ Subscription Agreement, the Stream Agreement and the Offtake Agreement; 7.1.2 the Obligors shall have ~~received: (i) a certificate of the Borrower signed~~ performed and complied with all covenants and agreements required by ~~a director certifying: (1) the date on which the Scheme Circular was posted~~ this Agreement to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance~~ be performed or complied with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded by them on or prior to the Closing Date; 7.1.3 all representations and warranties of the Obligors made in or pursuant to this Agreement shall be true and correct on the Closing Date in all material respects except where a representation and warranty is qualified by materiality in which case such representation and warranty shall be true and correct in all respects; 7.1.4 since December 31, ~~except~~ 2014, there shall have been no event, change or effect which, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect; 7.1.5 the Borrower shall have delivered, or caused to be delivered to the ~~extent such changes thereto have been required pursuant~~ Administrative Agent, all of the following (in each case in form and substance satisfactory to the ~~City Code~~ Lenders): (i) certificates from duly authorized officers of the Borrower and the other Obligors certifying (i) the articles and bylaws (or ~~required by~~ equivalent) of such Person, as applicable, (ii) the ~~Panel~~ incumbency of signing officers of such Person, and (iii) the corporate resolutions (or to equivalent) of such Person, as applicable, approving the ~~extent not prohibited by~~ execution, delivery and performance of such Person’s obligations under each of the Loan ~~Documents; and~~Documents to which it is a party and the consummation of the transactions contemplated thereunder; (ii) a certificate, dated the Closing Date, signed by any one of the Chief Executive Officer, the Chief Financial Officer or the President of the Borrower, certifying the matters set out in Sections 7.1.1 through 7.1.4; (iii) a copy of all Project Agreements, Project Authorizations and Material Contracts that have been entered into by the Closing Date, as applicable; (iv) a copy of the ~~Scheme Circular which is consistent~~ Mine Plan; (v) a copy of the Anti-Corruption Policy; (vi) evidence satisfactory to the Administrative Agent that all Taxes due in ~~all material respects~~ respect of the Project Real Property have been paid; (vii) the Stream Agreement, the Offtake Agreement and any other documents required thereby to be executed or delivered on or before the Closing Date, duly executed and delivered by each Obligor party thereto; (viii) certificates of insurance evidencing compliance with Section 6.1.6; (ix) a customary legal opinion dated the ~~terms and conditions in~~ Closing Date addressed to the ~~Press Release~~ Administrative Agent and the ~~Scheme Resolutions~~Lenders, in ~~each case, except~~ form and substance satisfactory to the ~~extent changes thereto have been required pursuant~~ Administrative Agent and Lenders’ counsel, acting reasonably, from Canadian counsel to the ~~City Code or required by~~ Borrower and the ~~Panel or by~~ other Obligors with respect to this Agreement and the transactions contemplated hereby; (x) a ~~court~~ title opinion in form and substance satisfactory to the Administrative Agent and the Lenders, acting reasonably addressed to the Administrative Agent and the Lenders in respect of ~~competent jurisdiction or are not prohibited by~~ the ~~Loan Documents~~Project Real Property, and including a reliance letter addressed to the Administrative Agent and the Lenders from the provider of any title opinion on which such title opinion relies; and (xi) such other documentation as the Administrative Agent may reasonably request in form and substance satisfactory to the Lenders, acting reasonably. ~~(c) If~~ 7.1.6 each of the ~~Shire Acquisition is effected by way of a Takeover Offer~~Lenders shall have concluded its technical, legal, and financial due diligence, and the Administrative Agent shall have ~~received:~~conducted a site visit with results in form and substance satisfactory to it; ~~(i)~~ 7.1.7 no preliminary or permanent injunction or other order issued by a ~~certificate~~ Governmental Body, and no statute, rule, regulation or executive order promulgated or enacted by a Governmental Body, which restrains, enjoins, prohibits or otherwise makes illegal the consummation of the ~~Borrower signed~~ transactions contemplated by ~~a director certifying:~~the Key Transaction Agreements shall be in effect; ~~(1)~~ 7.1.8 the ~~date on which the Takeover Offer Document was posted~~ conditions precedent to the ~~shareholders of Shire; (2) as~~ Stream Agreement which are to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required be satisfied by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence Borrower as of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have ~~become unconditional~~ been satisfied in accordance with the terms of the ~~Offer Document and~~ Stream Agreement or waived by the ~~shares~~ applicable parties thereto; 7.1.9 no action or proceeding, at law or in ~~AbbVie NewCo~~ equity, shall be pending or threatened by any Person or Governmental Body to ~~be issued to~~ restrain, enjoin or prohibit the ~~Shire shareholders pursuant to the terms~~ consummation of the ~~Takeover Offer~~ transactions contemplated by the Key Transaction Agreements; 7.1.10 the Construction Contracts shall have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger executed, shall be ~~consummated,~~ in ~~each case, without giving effect~~ form and substance satisfactory to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, ~~except~~acting reasonably, shall not have been terminated and shall not have been amended or any compliance therewith by any counterparty thereto waived, except for amendments or waivers which are either not material in ~~each case,~~ nature or not adverse to the ~~extent~~ relevant Obligor in any material respect and provided that a copy of any such ~~modifications, amendments, consents, requests or waivers have~~ amendment has been ~~required pursuant~~ provided to the ~~City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the~~ Administrative ~~Agent~~ Agent; and the ~~Lenders under the Loan Documents~~ Borrower shall not have agreed to, authorized or ~~pursuant to~~ received notice of any ~~fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to~~ such action; 7.1.11 the Closing Date ~~by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent~~ shall have ~~received a Notice of Borrowing in accordance with Section 2.02~~occurred by September 18, 2015; 7. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit Agreement (Pretium Resources Inc.)

Conditions Precedent to Closing Date. The ~~obligation of each Lender~~ conditions precedent to ~~make an Advance~~ closing on the Closing Date ~~is subject~~ shall be the execution, where applicable, and delivery to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ Agent of the ~~following conditions~~items described in this Section 8.1, each dated (unless otherwise indicated) the Closing Date and, with sufficient copies for each Lender: (a) ~~The Effective Date shall~~ From each Borrower: (i) a counterpart of this Agreement (to which all of the Exhibits and Schedules have ~~occurred~~been attached) executed by the Borrowers, the Agent, the Floor Plan Agent, the Swing Line Bank, the Issuing Bank and the Lenders; (ii) Notes properly executed by the Borrowers to the Lenders, respectively; and (iii) the Swing Line Note properly executed by the Borrowers to the Swing Line Bank. (b) If from each Borrower a ratification of all prior liens and security interests granted in the ~~Shire Acquisition is effected by way~~ below named documents in a form satisfactory to Agent (the “Ratification Agreements”) or, if any Borrower has not previously executed same, executed originals of ~~a Scheme,~~ the ~~Administrative Agent shall have received~~following: (i) the Security Agreement; (ii) the Escrow and Security Agreement; (iii) the GM Borrower Guaranty; and (iv) any other necessary Security Documents in the form satisfactory to the Agent and its counsel; each of which, if required by this Agreement, shall be duly executed by the parties thereto. (c) from each Borrower (i) a certificate of the ~~Borrower signed~~ Secretary or an Assistant Secretary of said Borrower, certifying that (A) attached are true and complete copies of its constituent documents, (B) attached thereto is a true and complete copy of resolutions or unanimous consent duly adopted by its Board of Directors, members or partners authorizing the execution, delivery and performance of this Agreement, the Notes and/or Loan Documents to which it is a ~~director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ party, and that ~~the Court Order has~~ such resolutions have not been ~~duly delivered to the Registrar~~ modified, rescinded or amended and are in ~~accordance with Article 125(3) of the Jersey Companies Law;~~ full force and effect, and (3C) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d)~~officer of each Borrower executing this Agreement, ~~(e) (to~~ the ~~extent relating to the Scheme)~~Notes, ~~(f) and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ any of the Loan Documents or other documents ~~specified~~ delivered in ~~paragraphs~~ connection herewith or therewith; and (ii) ~~and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ such other documents as the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documentsmay reasonably request. (d) On from each Borrower a certificate of a President, Senior Vice President, an Executive Vice President or a Vice President of each Borrower certifying (i) the ~~date~~ truth of the ~~applicable borrowing request~~ representations and ~~on the proposed date of~~ warranties made by such ~~borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Borrower in this Agreement, and (yii) ~~all~~ the ~~Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects~~absence of the occurrence and continuance of any Default or Event of Default. (e) ~~Where~~ the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers Agent’s Letter duly executed by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan DocumentsCompany. (f) ~~All fees and other amounts due and payable~~ the Floor Plan Agent’s Letter duly executed by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02Company. (g) ~~The Administrative Agent shall have received a pro forma consolidated balance sheet~~ an opinion of counsel to the Borrowers and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ any Subsidiary which signs any of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Loan Documents, addressed to the ~~Closing Date, prepared after giving effect~~ Agent and the Lenders and in form and substance reasonably satisfactory to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Agent. (h) ~~It is not illegal for any~~ an Administrative Questionnaire completed by each Lender ~~to lend and there is no injunction~~and, ~~restraining order or equivalent prohibiting any Lender from lending its portion of~~ if required, the ~~Advances or restricting the application of the proceeds thereof~~tax forms set forth in Section 5.14. (i) ~~After giving effect~~ an intercreditor agreement, reasonably satisfactory to the ~~consummation~~ Agent, Floor Plan Agent and Required Lenders (which shall evidence their satisfaction by execution of this Agreement), setting forth the respective rights of each party in the assets of the ~~Scheme~~Company and the Borrowers executed with, ~~or if~~ and received from, each provider of Permitted New Vehicle Floor Plan Indebtedness. (j) evidence that the ~~Shire Acquisition is implemented~~ fees and disbursements required to be paid by ~~way of a Takeover Offer after giving effect to~~ the ~~initial purchase of Shire Shares~~ Company pursuant to Section 5.4 and Section 13.4 on the ~~Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase~~ Closing Date have been paid. (k) evidence that all UCC-1 filings and other Liens that are not permitted pursuant to ~~such Takeover Offer shall own equity interests~~ this Agreement and which are existing or reflected in ~~AbbVie NewCo representing more than 20.0% of both~~ searches performed by the ~~voting interests of and value of AbbVie NewCo. The Administrative~~ Agent ~~shall notify the Borrower and the Lenders~~ or its counsel as of the Closing Date ~~as soon as practicable upon~~ have been released and/or terminated to the reasonable satisfaction of the Agent and its ~~occurrence~~counsel. (l) evidence of insurance required by Section 9.3. (m) all documentation and other information requested by the Agent to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, ~~and such notice shall be conclusive and binding~~including the USA PATRIOT Act.

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of ~~each Lender to make an Advance on~~ the Closing Date is shall be subject to the satisfaction (or waiver ~~in accordance with Section 9.01)~~ of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded conditions on or prior to the Closing Date: (a) the Agreement shall not have been terminated in accordance with its terms and there shall not be continuing any cure period with respect to any event, ~~except~~ occurrence or condition that would permit the Requisite Directing Lenders to terminate the Agreement in accordance with its terms following the conclusion of such cure period; (b) all governmental, regulatory and third party notifications, filings, waivers, authorizations and consents necessary or required to be obtained by the Company or SMLP for the consummation of any part of the Transaction, shall have been made or received, shall be in full force and effect, shall not be subject to unfulfilled conditions or contingencies, and shall be acceptable to the ~~extent such changes thereto~~ Requisite Directing Lenders; (c) no Material Adverse Effect shall have ~~been required pursuant~~ occurred after the TSA Effective Date; provided, however, that the foregoing shall not include any Event, change, effect, occurrence, development, circumstance or change of fact arising out of, resulting from or relating to ~~the City Code~~ (i) any action taken by a Directing Lender or ~~required by the Panel~~ any of their respective Affiliates or ~~to the extent not prohibited by the Loan Documents; and~~ (ii) ~~a copy~~ the compliance by any person or entity with the covenants and agreements contained in this Agreement; (d) the SMLP Contribution shall have occurred; (e) the execution of each of the ~~Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions~~Definitive Documents, which, in each case, ~~except~~ shall be in form and substance substantially similar to the ~~extent changes thereto~~ Exhibits to the Term Sheet; (f) holders of at least 73% of the aggregate principal amount of all Term Loan Claims outstanding and at least two (2) Term Loan Lenders that are not Affiliates of each other, Affiliates of the Company or the Initial Directing Lenders shall have executed a Joinder Agreement or a Consent Agreement; (g) no temporary restraining order, preliminary or permanent injunction, judgment or other order preventing the consummation of any part of the Transaction shall have been ~~required pursuant~~ entered, issued, rendered or made by any party other than a Directing Lender, nor shall any proceeding seeking any of the foregoing by any party other than a Directing Lender be commenced or pending; nor shall there be any law, rule or regulation promulgated, enacted, entered, enforced or deemed applicable to the ~~City Code~~ Company or ~~required~~ SMLP which makes the consummation of any part of the Transaction illegal, void or rescinded; (h) there is no pending or threatened (in writing) action, complaint, claim, litigation, law suit, proceeding, investigation, objection or similar event or circumstance relating to any of the transactions contemplated by ~~the Panel~~ this Agreement or any other Definitive Document (a) commenced or asserted by ~~a court of competent jurisdiction~~ two (2) or more Term Loan Lenders, that are not ~~prohibited by~~ Directing Lenders, holding in the aggregate more than 10% of the principal amount of Term Loan ~~Documents.~~ Claims then outstanding; (b) that could reasonably be expected to result in the Directing Lenders and the Transaction Consenting Lenders, in the aggregate, being obligated for in excess of $500,000 in unreimbursed indemnification costs, or (c) ~~If the Shire Acquisition is effected by way~~ that specifically names or asserts claims or causes of ~~a Takeover Offer~~action against any Directing Lender (and, in each case, the ~~Administrative Agent shall have received:~~Company is not aware of any fact or circumstance that could give rise to or indicate that the same may arise, or be contemplated or threatened); provided that, upon the occurrence of any event in this Section 9(h), SMLP may agree, pursuant to a written undertaking reasonably acceptable to the Requisite Directing Lenders, to indemnify the Term Loan Agent, Directing Lenders and Transaction Consenting Lenders for any costs, fees, or expenses arising from such action, in which event the Company may proceed with consummating the Strict Foreclosure; (i) ~~a certificate~~ the representations and warranties of the ~~Borrower signed by a director certifying:~~ Company and SMLP in this Agreement and each Definitive Document shall be true and correct in all material respects (1without regard and without giving effect to any materiality or Material Adverse Effect standard or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty)) as of the ~~date on which~~ Closing Date and the ~~Takeover Offer Document was posted~~ Company shall have delivered to the ~~shareholders~~ Directing Lenders a written and signed certificate from a responsible executive officer of ~~Shire~~the Company and SMLP confirming the same; (2j) as the Company and SMLP shall have complied with its covenants and obligations under this Agreement and the other Definitive Documents to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or be performed prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company ~~Merger~~ shall have ~~been~~delivered to the Directing Lenders a written and signed certificate from a responsible executive officer of the Company and SMLP confirming the same; (k) the Company shall have delivered to the Directing Lenders a written and signed certificate from a responsible executive officer of the Company confirming that, ~~or substantially concurrently with~~ subject to those conditions precedent that will be satisfied on the Closing Date, all conditions precedent to the occurrence of the Closing Date set forth in this Agreement and the other Definitive Documents have been satisfied (or if any such conditions precedent have not been satisfied, identifying such unsatisfied conditions precedent); (l) either (i) SMLP shall ~~be, consummated in~~ have received Interpretive Guidance from the ~~case~~ SEC confirming the applicability of Rule 144(d)(3)(iv) or (ii) the Registration Statement shall be declared effective by the SEC covering all the common units held by Term Loan Lenders that become Directing Lenders and Transaction Consenting Lenders prior to the expiration of the ~~Shire Acquisition~~ Solicitation Period that completed and returned the Questionnaire prior to the Questionnaire Deadline; (m) the Company shall have delivered to the Directing Lenders a written opinion of ▇▇▇▇▇ ▇▇▇▇▇ (or other counsel reasonably acceptable to the Requisite Directing Lenders) in ~~all material respects~~ form and substance as previously agreed; (n) the Ad Hoc Group Fees and Expenses shall have been paid in full, in cash, in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents.this Agreement; and (fo) ~~All fees~~ The Term Loan Agent Fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to~~ Expenses incurred at any ~~fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day~~ time prior to the Closing Date ~~by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent~~ shall have ~~received a Notice of Borrowing~~ been paid in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day full in cash. Any of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented foregoing conditions may be waived only by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the ~~voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower~~ Requisite Directing Lenders and the ~~Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~Company.

Appears in 1 contract

Sources: Transaction Support Agreement (Summit Midstream Partners, LP)

Conditions Precedent to Closing Date. ~~The obligation of~~ No Lender shall be required or obligated to make or continue any Advance until the first Business Day on which the following conditions precedent have been satisfied (or waived, as evidenced by an “effective date” notice to the Borrower from the Lenders), as determined by each Lender ~~to make an Advance on~~ (provided that if the Closing Date ~~is subject to~~ does not occur on or before the ~~satisfaction (or waiver in accordance with Section 9.01)~~ Termination Date, the Commitments of the ~~following conditions:~~Lenders shall terminate on such date): (a) The ~~Effective Date~~ Administrative Agent’s receipt of the following, each of which shall ~~have occurred.~~be originals or facsimiles (followed promptly by originals) (unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party (if executed by such Loan Party), each dated the date of the Borrowings (the “Closing Date”) (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lenders (unless otherwise specified) and in sufficient copies for each Lender (unless otherwise specified): (bi) If executed counterparts of this Agreement and the ~~Shire Acquisition~~ Credit Agreements, sufficient in number for distribution to the Administrative Agent, the Collateral Agent, each Lender and the Borrower; (ii) to the extent requested, duly executed Notes of the Borrower for the account of each Lender that has so requested, complying with the provisions of Section 2.13 of each Credit Agreement; (iii) executed counterparts of an amendment to the Security and Intercreditor Agreement such that, immediately after giving effect to the repayment in full of the Existing Lender Debt, the Security and Intercreditor Agreement shall be amended to the form attached hereto as Exhibit B (the “SIA Amendment”), sufficient in number for distribution to each Lender, each Agent and the Borrower, together with: (A) proper financing statements, duly completed for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect and protect the liens and security interests created under the Collateral Documents, covering the Collateral described in the Collateral Documents (after giving effect to the SIA Amendment); (B) results of lien searches, dated on or no earlier than 45 days before the Closing Date, for existing financing statements filed in the jurisdictions referred to in Section 3.01(a)(iii)(A) since the date of the Security and Intercreditor Agreement that name any Loan Party as debtor, together with copies of all such financing statements; and (C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interests created under the Security and Intercreditor Agreement and the Account Control Agreements (both before and after giving effect to the Transactions), other than the Other Perfection Requirements, has been taken; (iv) deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit C, Exhibit D, Exhibit E, Exhibit F, Exhibit G and Exhibit H, as appropriate, and covering all Material Property (other than the Springdale Assets) owned by any Loan Party as of the Closing Date (together with the Assignments of Leases and Rents referred to therein and each other deed of trust, trust deed, mortgage, leasehold mortgage and leasehold deed of trust delivered pursuant to Section 5.01(p), the “Term Mortgages”), duly executed by the appropriate Loan Party, together with: (A) confirmation from the title insurance company recording the Term Mortgages that duly executed counterparts of the Term Mortgages sufficient for recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create valid and subsisting Liens on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties have been recorded, and evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees have been paid; (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued by Chicago Title Insurance Company or such other title insurers acceptable to the Administrative Agent, insuring the Term Mortgages for the properties described therein to be valid and subsisting Liens on the properties described therein, free and clear of all defects (including mechanics’ Liens and materialmen’s Liens) and encumbrances, excepting only Permitted Liens (other than mechanic’s liens and materialmen’s liens to be insured against under said policies), and providing for such other affirmative insurance (including endorsements for future advances under the Financing Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable; (C) at the Administrative Agent’s option, either (i) ALTA Surveys, for which all necessary fees (where applicable) have been paid, dated no more than 60 days before the Closing Date, of the properties described in the Term Mortgages, showing only such exceptions as are acceptable to the Administrative Agent, and each certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the State in which the property described in such survey is ~~effected by way~~ located and acceptable to the Administrative Agent; or (ii) affidavits of ~~a Scheme~~the Borrower and of the relevant Loan Parties, dated as of the date of the Borrowings, certifying to the Administrative Agent, the Collateral Agent, the Term B Lenders, the Term C Lenders and the title insurance company recording the Term Mortgages that there have been no changes, replacements or additions to the improvements on the properties described in the Term Mortgages which encroach upon the property or rights of others, which violate any setback or other zoning requirements or which violate any agreements of the Borrower or such Loan Parties, and otherwise in form and substance satisfactory to the Administrative Agent; (D) each in form and substance satisfactory to the Administrative Agent, (i) such consents and estoppel letters from lessors of leased property, including the Gleason Lessor and licensors of rights with respect to the properties described in the Term Mortgages, (ii) such consents and estoppel letters from benefited parties under easement agreements as the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) requested and (iii) ~~below is correct and complete and has not been amended or superseded on or prior~~ agreements subordinating any ground lessor’s fee interest to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders Term Mortgage pursuant to the terms of the ~~Takeover Offer have been issued~~ applicable lease agreement; (E) confirmation from the title insurance company recording the Term Mortgages with respect to the validity and (subject to the ~~former Shire shareholders have been registered as~~ exceptions and encumbrances permitted therein) the ~~owner~~ priority of ~~such shares in~~ the ~~register of members of AbbVie NewCo~~ Term Mortgages; and (~~as applicable~~F) ~~and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to~~ evidence that all action (~~and there shall not have been) any modifications, amendments, consents, requests or waivers~~ including payment by the Borrower ~~(or its applicable affiliate) thereunder that are materially adverse~~ to the ~~interests~~ title insurance company recording the Term Mortgages of the ~~Lenders~~amount previously notified by such title insurance company to the Borrower as necessary for it to record the Term Mortgages) that the Administrative Agent may deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents (other than the Other Perfection Requirements) securing all Obligations of the Borrower and the Loan Parties under the Financing Documents have been taken; (v) deeds of trust, ~~without~~ trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the ~~prior written consent~~ form of Exhibit I, Exhibit J, Exhibit K and Exhibit L, and covering the Springdale Assets (together with the Assignments of Leases and Rents referred to therein, the “Springdale Mortgages”), duly executed by the appropriate Loan Party, together with: (A) confirmation from the title insurance company recording the Springdale Mortgages that duly executed counterparts of the Springdale Mortgages sufficient for recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create valid and subsisting Liens on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and the Collateral Agent have been recorded, and evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees have been paid; (B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, ~~except, in each case,~~ issued by Chicago Title Insurance Company or such other title insurers acceptable to the ~~extent~~ Administrative Agent, insuring the Springdale Mortgages for the properties described therein to be valid and subsisting Liens on the properties described therein, free and clear of all defects (including mechanics’ Liens and materialmen’s Liens) and encumbrances, excepting only Permitted Liens (other than mechanic’s liens and materialmen’s liens to be insured against under said policies), and providing for such ~~modifications~~other affirmative insurance (including endorsements for future advances under the Financing Documents and for mechanics’ and materialmen’s Liens) as the Administrative Agent may deem necessary or desirable; (C) at the Administrative Agent’s option, ~~amendments~~either (i) ALTA Surveys, ~~consents, requests or waivers~~ for which all necessary fees (where applicable) have been ~~required~~ paid, dated no more than 60 days before the Closing Date, of the properties described in the Springdale Mortgages, showing only such exceptions as are acceptable to the Administrative Agent, and each certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the State in which the property described in such survey is located and acceptable to the Administrative Agent; or (ii) affidavits of the Borrower and of the relevant Loan Parties, dated as of the date of the Springdale Borrowing, certifying to the Administrative Agent, the Collateral Agent, the Lenders and the title insurance company recording the Springdale Mortgages that there have been no changes, replacements or additions to the improvements on the properties described in the Springdale Mortgages which encroach upon the property or rights of others, which violate any setback or other zoning requirements or which violate any agreements of the Borrower or such Loan Parties, and otherwise in form and substance satisfactory to the Administrative Agent; (D) each in form and substance satisfactory to the Administrative Agent, (i) such consents and estoppel letters from lessors of leased property, including licensors of rights with respect to the properties described in the Springdale Mortgages, (ii) such consents and estoppel letters from benefited parties under easement agreements as the Administrative Agent shall have requested and (iii) agreements subordinating any ground lessor’s fee interest to the applicable Springdale Mortgage pursuant to the ~~City Code or~~ terms of the ~~Panel or are not prohibited~~ applicable lease agreement; (E) confirmation from the title insurance company recording the Springdale Mortgages with respect to the validity and (subject to the exceptions and encumbrances permitted therein) the priority of the Springdale Mortgages; and (F) evidence that all action (including payment by the ~~Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ Borrower to the ~~Arranger,~~ title insurance company recording the Springdale Mortgages of the amount previously notified by such title insurance company to the Borrower as necessary for it to record the Springdale Mortgages) that the Administrative Agent may deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents (other than the Other Perfection Requirements) securing all Obligations of the Borrower and the ~~Lenders~~ Loan Parties under the Financing Documents have been taken; (vi) certified copies of resolutions of the Board of Directors of each Loan ~~Documents~~ Party (A) approving the Transactions to which each such Loan Party is or ~~pursuant~~ is to ~~any fee~~ be a party (the “AESC Transactions”) and (B) the execution, delivery and performance of each Transaction Document to which such Loan Party is or ~~similar letters relating~~ is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the AESC Transactions and each Transaction Document to which such Loan ~~Documents~~ Party is or is to be a party; (vii) copies of a certificate of the Secretary of State of the jurisdiction of formation of each Loan Party, certifying (A) as to a true and correct copy of the certificate of incorporation or formation of such Loan Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such certificate on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly formed and in good standing or presently subsisting under the laws of the State of its jurisdiction of formation; (viii) copies of a certificate of the Secretary of State of each jurisdiction (other than the jurisdiction of its formation) set forth on Schedule 4.01(b) for each Loan Party stating that such Loan Party is duly qualified to do business and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, as applicable; (ix) certificates signed on behalf of each Loan Party by its Secretary or any Assistant Secretary (the statements made in which certificate shall be ~~paid~~true on and as of the Closing Date), certifying (A) as to a true and correct copy of the ~~extent invoiced at least one Business Day prior to~~ Constituent Documents of such Loan Party as of the Closing Date by and each amendment to its Constituent Documents, if any, from the ~~relevant person and~~ date on which the resolutions referred to ~~the extent such amounts are payable on or prior~~ in Section 3.01(a)(vi) were adopted to the Closing Date~~. The Administrative Agent shall have received~~ , (B) the due incorporation or formation and good standing or valid existence of such Loan Party under the laws of the jurisdiction of its formation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party; and (C) the names and true signatures of the officers of such Loan Party authorized to sign each Financing Document to which it is or is to be a ~~Notice of Borrowing in accordance with Section 2.02.~~party and the other documents to be delivered hereunder and thereunder; (gx) ~~The Administrative Agent shall have received a pro forma~~ copies of each of the interim Consolidated financial statements (consolidated balance ~~sheet~~ sheets and ~~related pro forma consolidated statement~~ income statements) of ~~income~~ the Parent and its Subsidiaries and the Borrower and its Subsidiaries for each of ~~AbbVie NewCo~~ the first three fiscal quarters of the Parent and the Borrower for Fiscal Year 2003, accompanied by an Officer’s Certificate of the Borrower certifying that, (A) the copies of such financial statements fairly present the financial conditions of the Borrower and its Subsidiaries as of the date of such financial statements and the results of operations of the Borrower and its Subsidiaries for the ~~twelve~~period indicated in such financial statements, all in accordance with GAAP and subject to normal year-~~month period ending on~~ end audit adjustments and the ~~last day~~ absence of footnotes and (B) such financial statements have been duly filed with the SEC; (xi) forecasts prepared by management of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Borrower of balance sheets, income statements and cash flow statements of the Borrower reasonably acceptable to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor~~ on a consolidated and unconsolidated basis for each fiscal quarter commencing with the fiscal quarter ending March 31, 2004 through the fiscal quarter ending March 31, 2011; (xii) legal opinions of appropriate counsel for the Loan Parties, as to such matters as any Lender ~~shall have any approval right~~ may reasonably request; (xiii) legal opinions of appropriate counsel to the Administrative Agent (including, without limitation, Shearman & Sterling LLP) and the Collateral Agent, as ~~regards~~ to such matters as the ~~form or contents~~ Administrative Agent may reasonably request; (xiv) copies of each Material Governmental Approval, accompanied by an Officer’s Certificate of the ~~Pro Forma Financials).~~ Borrower, attaching copies of all Material Governmental Approvals and certifying that (hA) ~~It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion~~ the copies of each of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.Material Governm

Appears in 1 contract

Sources: Common Terms Agreement (Allegheny Energy Supply Co LLC)

Conditions Precedent to Closing Date. ~~The obligation~~ In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the time that each ~~Lender~~ of the following conditions has been satisfied (the date, if any, upon which such conditions are first satisfied is referred to ~~make an Advance~~ herein as the “Closing Date”): (a) Each Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof; provided, however, that Borrowers shall not be required to deliver a Lien Waiver on the Closing Date ~~is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred~~for a location for which Agent has established a Rent and Charges Reserve. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents[Reserved.] (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ Each Collateral and Guarantee Requirement shall have been satisfied and Agent shall have ~~received: (i)~~ received a ~~certificate~~ completed Perfection Certificate dated as of the ~~Borrower~~ Closing Date and signed by an executive officer or Financial Officer of each Obligor, together with all attachments contemplated thereby, including the results of a ~~director certifying: (1)~~ search of the ~~date on which the Takeover Offer Document was posted~~ Uniform Commercial Code, PPSA and equivalent filings made with respect to the ~~shareholders of Shire; (2) as to~~ Obligors in the ~~satisfaction of each condition set forth in clauses (d), (e) (to~~ jurisdictions contemplated by the ~~extent relating to the Takeover Offer), (f)~~ Perfection Certificate and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy~~ copies of the ~~documents specified in paragraph~~ financing statements (iior similar documents) ~~below is correct~~ disclosed by such search and ~~complete and has not been amended or superseded on or prior~~ evidence reasonably satisfactory to ~~the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and~~ Agent (4including PPSA estoppel letters) that the ~~Takeover Offer has been declared unconditional in all respects without any material amendment, modification~~ Liens indicated by such financing statements (or ~~waiver of the conditions to the Takeover Offer~~ similar documents) are permitted by Section 10.2.2 or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been ~~required~~ released or will be released pursuant to ~~the City Code~~ UCC-3 financing statements, PPSA termination statements or ~~required by the Panel or are permitted under the Loan Documents~~other release documentation delivered to Agent. (d) ~~On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Agent shall have received duly executed agreements establishing and/or evidencing each Dominion Account and (ywhere applicable) ~~all the Certain Funds Representations are true or~~related lockbox and each Controlled Account, ~~if a Certain Funds Representation does not include a materiality concept~~each in form and substance, ~~true in all material respects~~and with financial institutions, satisfactory to Agent. (e) ~~Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger~~ Agent shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummatedreceived certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each ~~case~~Borrower and each Mexican Domiciled Obligor certifying that, ~~without~~ after giving effect to the initial Loans and transactions hereunder, (i) no Default exists; (ii) the representations and ~~there shall not have been~~warranties set forth in Section 9 are true and correct; and (iii) ~~any modifications, amendments, consents, requests or waivers~~ such Borrower has complied with all agreements and conditions to be satisfied by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by it under the Loan Documents. (f) ~~All~~ Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents (including, without limitation, charter documents of such Obligor that are, except with respect to a UK Domiciled Obligor or a Dutch Domiciled Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization) are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and (with respect to the U.S. Obligors, together with the resolutions delivered pursuant to Section 6 of the Original Loan Agreement) constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of Cahill Gordon & Reindel LLP, as well as any local counsel to Obligors or Agent (including, without limitation, Canadian, English, Mexican and Dutch counsel), in form and substance satisfactory to Agent. (h) Agent shall have received good standing certificates for each Obligor (other than the Dutch Domiciled Obligors) issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction in the United States, Canada, the United Kingdom, Mexico or the Netherlands where such Obligor’s conduct of business or ownership of Property necessitates qualification (in each case, to the extent that such certificates or certificates of similar subject matter are issued, in general, by such officials in such jurisdictions). (i) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Obligors, together with a loss payable endorsement naming Agent as loss payee and reasonably acceptable to Agent, all in compliance with the Loan Documents. (j) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the financial condition of Obligors and their Subsidiaries, taken as a whole, or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2014. The capital structure of the Obligors shall be satisfactory to Agent. (k) Borrowers shall have paid all fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses (provided that legal fees required to be paid as a condition precedent to the ~~Arranger,~~ occurrence of the ~~Administrative~~ Closing Date shall be limited to such legal fees as to which Borrowers have received a summary invoice) required to be paid to Agent ~~and~~ and/or the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date~~. The Administrative~~ . (l) Agent shall have received a ~~Notice of~~ Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries Base Report as ~~of and for the twelve-month period ending on the last day~~ of the most ~~recently completed four-fiscal quarter period ended~~ recent month ending at least 45 15 days prior to the Closing Date. (m) Agent and 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, ~~prepared after giving effect~~ including the Patriot Act and other AML Legislation. (n) Agent shall have received executed copies of the any Term Loan Document or modifications to the ~~Transactions as if~~ Term Loan Documents executed in connection with the ~~Transactions had occurred as of such date~~ Transactions, which shall be in form and substance satisfactory to Agent and shall be in full force and effect. (~~in the case of such balance sheet~~o) ~~or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative~~ Agent ~~nor any Lender~~ shall have received the originals of any ~~approval right as regards the form or contents~~ pledged Collateral representing all of the ~~Pro Forma Financials~~issued and outstanding shares of the Equity Interests constituting Collateral and required to be delivered to Agent under the Loan Documents, in each case together with stock powers (or the equivalent, including, without limitation, endorsements (endosos)) duly executed in blank with respect thereto (except with respect to uncertificated pledged Collateral and such Collateral that constitutes Term Priority Collateral). (hp) ~~It is~~ Agent shall have received payoff or release letters, in form and substance satisfactory to Agent, confirming that the Obligors and their Subsidiaries are released from all obligations under any Debt not ~~illegal for any Lender to lend~~ expressly permitted by this Agreement and ~~there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion~~ providing a release of all of the ~~Advances or restricting~~ Liens existing with respect to any such Debt in and to the ~~application~~ assets of the ~~proceeds thereof~~applicable Obligors and their Subsidiaries, together with termination statements and other documentation evidencing the termination of any such Liens in and to the properties and assets of the applicable Obligors and their Subsidiaries. (iq) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall ~~notify~~ have received evidence, in form and substance satisfactory to Agent, that the Mexican Domiciled Obligors have irrevocably appointed the Borrower ~~and~~ Agent, before a Mexican notary public, a special irrevocable power of attorney, in the ~~Lenders~~ form of ~~the Closing Date~~ Exhibit E, to act as ~~soon as practicable upon~~ its ~~occurrence, and such notice shall be conclusive and binding~~agent for service of process.

Appears in 1 contract

Sources: Loan Agreement (Horizon Global Corp)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to the satisfaction~~ following conditions precedent have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~8.01): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) If Since December 31, 2017, there shall not have occurred any event or condition that has had or would be reasonably expected to have, either individually or in the ~~Shire Acquisition is effected~~ aggregate, a Material Adverse Effect. (c) All fees due to the Administrative Agent, the Arrangers and the Lenders shall have been paid, and all expenses of the Administrative Agent and the Arrangers that are required to be paid or reimbursed by ~~way of a Scheme~~the Borrower and that have been invoiced at least three Business Days prior to the Closing Date shall have been so paid or reimbursed. (d) On the Closing Date, the following statements shall be true and the Administrative Agent shall have ~~received~~received a certificate of the Borrower, dated the Closing Date, stating that: (i) ~~a certificate~~ Each of the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ representations and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition~~ warranties set forth in ~~clauses~~ Section 4.01 are true and correct in all material respects (~~d), (e) (~~except to the extent ~~relating to the Scheme~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects), ~~(f)~~ on and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy~~ as of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent any such ~~changes thereto~~ representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been ~~required pursuant to the City Code or required by the Panel or~~ true and correct in all material respects (except to the extent ~~not prohibited by the Loan Documents~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date; and (ii) No event has occurred and is continuing, or shall occur as a ~~copy~~ result of the ~~Scheme Circular which is consistent in~~ occurrence of the Closing Date, that constitutes a Default. (e) The Administrative Agent shall have received on or before the Closing Date, each dated on or about such date: (i) Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower, and of all ~~material respects~~ documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (ii) A certificate of the ~~terms~~ Secretary or an Assistant Secretary of the Borrower certifying the names and ~~conditions in~~ true signatures of the ~~Press Release~~ officers of the Borrower authorized to sign this Agreement and the ~~Scheme Resolutions~~other documents to be delivered by it hereunder; and (iii) A favorable opinion letter from (A) ▇▇▇▇▇▇▇ ▇▇▇▇, Divisional Vice President, Associate General Counsel and Assistant Secretary of the Borrower and (B) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, as New York special counsel to the Borrower (or, in each case, ~~except~~ such other counsel as may be reasonably acceptable to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (dAgent), ~~(e) (to~~ in each case, in the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded form agreed on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The ~~Administrative Agent~~ 2014 Credit Agreement shall have ~~received a Notice of Borrowing~~ been terminated in accordance with Section ~~2.02~~8.15. (g) ~~The~~ To the extent requested by a Lender, delivery of executed promissory notes. (h) To the extent requested by any Lender through the Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended in writing at least ~~45 days~~ 10 Business Days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided the documentation and other information to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction~~Patriot Act, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately at least three Business Days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoClosing Date. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~such conditions precedent being satisfied (or waived in accordance with Section 8.01), and such notice shall be conclusive and ~~binding~~binding evidence of the occurrence thereof.

Appears in 1 contract

Sources: Credit Agreement (Abbott Laboratories)

Conditions Precedent to Closing Date. ~~The obligation of each Lender to make an Advance on the Closing Date is subject~~ In addition to the ~~satisfaction~~ conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (~~or waiver in accordance with Section 9.01~~“Closing Date”) that each of the following ~~conditions~~conditions has been satisfied: (a) ~~The Effective Date~~ As required by Agent to be executed as of the Closing Date, each Loan Document shall have ~~occurred~~been duly executed and delivered to Agent by each of the signatories thereto. (b) If All filings or recordations necessary to perfect the ~~Shire Acquisition is effected by way of a Scheme~~Agent’s Liens in the Collateral (other than any such filings to occur after the Closing Date in accordance with the terms hereof) shall have been made, ~~the Administrative~~ and Agent shall have ~~received:~~received UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. (c) Parent shall have consummated a Qualified IPO which results in gross proceeds to Parent of at least $110,000,000 and, in any event, in an amount sufficient to provide for (x) the payment in full of all existing Debt for Borrowed Money of Obligors and (ii) the payment in full of all fees, costs and expenses incurred in respect of the Qualified IPO and the closing of this credit facility. (d) Agent shall have received a duly executed Deposit Account Control Agreement for each of Obligor’s Deposit Accounts (other than Excluded Accounts) in existence on the Closing Date, to the extent requested by the Agent. (e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Parent certifying on behalf of each Borrower that, after giving effect to the initial Loans and transactions hereunder, (i) ~~a certificate~~ such Borrower is Solvent; (ii) no Default or Event of ~~the Borrower signed by a director certifying:~~ Default exists; (1iii) the ~~date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ representations and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition~~ warranties set forth in ~~clauses (d), (e) (to the extent relating to the Scheme), (f)~~ Section 9 are true and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy~~ correct in all material respects as of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent such ~~changes thereto~~ representations and warranties refer to a specified date, in which case the same shall continue on the Closing Date to be true and correct as of the applicable specified date (or, in the event such representations and warranties are qualified by materiality or Material Adverse Effect or language of similar import, such representations shall be true and correct in all respects as of the Closing Date). (f) Agent shall have ~~been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; ~~and~~ (ii) a that an attached copy of resolutions authorizing execution and delivery of the ~~Scheme Circular which~~ Loan Documents is ~~consistent~~ true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all ~~material respects~~ resolutions adopted with respect to this credit facility; and (iii) to the ~~terms~~ title, name and ~~conditions~~ signature of each Person authorized to sign the Loan Documents on behalf of such Obligor. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the ~~Press Release~~ Obligors and (ii) McAfee & ▇▇▇▇, Oklahoma counsel to the ~~Scheme Resolutions~~Obligors, in each case, ~~except~~ in form and substance satisfactory to Agent in its Permitted Discretion. (h) Agent shall have received copies of the ~~extent changes thereto have been required pursuant to the City Code or required~~ charter documents of each Obligor, certified by the ~~Panel~~ Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by ~~a court~~ the Secretary of ~~competent~~ State or other appropriate official of such Obligor’s jurisdiction ~~or are not prohibited~~ of organization. (i) Agent shall have received certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents. (cj) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ Agent shall have ~~received: (i)~~ completed its business, financial and legal due diligence of Obligors, including a ~~certificate~~ roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the ~~Borrower signed by a director certifying: (1)~~ financial condition of any Obligor or in the ~~date on which the Takeover Offer Document was posted to the shareholders~~ quality, quantity or value of ~~Shire; (2) as to the satisfaction of each condition set forth in clauses (d)~~any Collateral shall have occurred since December 31, (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents2016. (iik) ~~a copy of the Takeover Offer Document which is consistent in~~ Borrowers shall have paid all ~~material respects with the terms~~ fees and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is expenses to be ~~implemented by way of a Scheme, each of the Shire Acquisition~~ paid to Agent and ~~the Company Merger shall have been, or substantially concurrently with the occurrence of~~ Lenders on the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02thereto. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (il) After giving effect to the ~~consummation~~ transactions contemplated hereby (including the Qualified IPO), there shall be no Revolver Loan outstanding. (m) Agent shall have received a Borrowing Base Report as of ~~the Scheme~~[ ], ~~or if the Shire Acquisition is implemented by way of a Takeover Offer after~~ 2018. Upon giving effect to the ~~initial purchase~~ Qualified IPO referenced in Section 6.1(c) and repayment of ~~Shire Shares pursuant to the Takeover Offer, immediately~~ all accounts payable of Borrowers unpaid for more than thirty (30) days after the ~~Company Merger~~original invoice date, ~~the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer~~ Availability shall ~~own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo~~be at least $50,000,000. The ~~Administrative~~ Agent shall notify the Borrower Agent and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Loan, Security and Guaranty Agreement (Quintana Energy Services Inc.)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective and the Revolving Commitments shall be available on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to~~ following conditions precedent have been satisfied (with the ~~satisfaction~~ Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or ~~waiver~~ waived in accordance with Section 9.01~~) of the following conditions:~~): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from STERIS Corporation, STERIS plc and each other Closing Date Party and each Lender either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed such a counterpart. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts that are required to be reimbursed or paid and are then due and payable by any of the ~~Borrower, AbbVie and their Subsidiaries~~ Borrowers to the ~~Arranger~~Administrative Agent, ~~the Administrative Agent~~ each Joint Lead Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least ~~one~~ three Business ~~Day~~ Days prior to the Closing Date ~~by the relevant person~~ and to the extent such amounts are payable on or prior to the Closing Date. . (c) The Administrative Agent (or its counsel) shall have received on or before the Closing Date: (i) Certified copies of the resolutions or similar authorizing documentation of the governing bodies of STERIS Corporation, STERIS plc and each other Closing Date Party authorizing such Person to enter into and perform its obligations under the Loan Documents to which it is a party; (ii) A good standing certificate or similar certificate dated a date reasonably close to the Closing Date from the jurisdiction of formation of STERIS Corporation, STERIS plc and each other Closing Date Party, but only where such concept is applicable (it being understood that no such certificate will be provided by STERIS plc or any Closing Date Party that is an entity organized under the laws of England and Wales); (iii) A customary certificate of STERIS Corporation, STERIS plc and each other Closing Date Party certifying the names and true signatures of the officers and/or directors of STERIS Corporation, STERIS plc and each other Closing Date Party authorized to sign this Agreement and the other documents to be delivered hereunder and, in the case of STERIS plc, to the satisfaction of the conditions set forth in Section 3.01(h) and (i); and (iv) A favorable opinion letter of (A) the General Counsel of STERIS Corporation and (B) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and other legal counsel to STERIS Corporation and each other Closing Date Party reasonably satisfactory to the Administrative Agent, in each case in form and substance consistent with those delivered under the Existing Credit Agreement or, as applicable such other form as is reasonably acceptable to the Administrative Agent (and covering STERIS Corporation, STERIS plc and each Closing Date Party). (d) SECTION 3.01 [Reserved]. (e) The Administrative Agent shall have received, on or prior to the Closing Date, so long as requested no less than ten Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to STERIS Corporation, STERIS plc and each other Closing Date Party. (f) Substantially contemporaneously therewith, the Existing Credit Agreement shall be terminated in full and all outstanding obligations thereunder shall be repaid in full (other than contingent obligations not then due). (g) To the extent Advances are being made on the Closing Date, the Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. . (gh) The ~~Administrative Agent shall have received a pro forma consolidated balance sheet~~ representations and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ warranties of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to ~~the Closing Date, prepared after giving effect~~ materiality or by reference to ~~the Transactions~~ Material Adverse Effect shall be true and correct in all respects as ~~if the Transactions had occurred~~ so qualified) on and as of such ~~date~~ date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in ~~the case~~ all respects as so qualified) as of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereofearlier date. (i) ~~After giving effect to the consummation of the Scheme, or if the Shire Acquisition~~ No Default has occurred and is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCocontinuing. The Administrative Agent shall notify the ~~Borrower~~ Borrowers and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~the conditions precedent in this Section 3.01 being satisfied (or waived in accordance with Section 9.01), and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit Agreement (STERIS PLC)

Conditions Precedent to Closing Date. The ~~obligation~~ obligations of ~~each Lender~~ Certificate Trustee (through Administrative Agent) to make ~~an Advance~~ payment of the Equipment Cost to the applicable Seller on the Closing Date, the obligations of the Certificate Holders to Fund the related Certificate Amounts on the Closing Date is and the obligation of the Lenders to make the related Funding of their Loans on the Closing Date are subject to each of the following conditions precedent (except that (i) the obligation of any such party shall not be subject to such party's own performance or compliance and (ii) the conditions specified below as being only for the benefit of a specified party or parties need be fulfilled only to the satisfaction (of, or ~~waiver in accordance with Section 9.01) of the following conditions:~~waived by, such party or parties): (a) ~~The Effective Date~~ Each of the Operative Documents to be executed and delivered on such date shall be satisfactory in form and substance to the Certificate Trustee, the Certificate Holders, the CP Lender, the Facility Lenders and the Agents, shall have ~~occurred~~been duly authorized, executed and delivered by the parties thereto, shall each be in full force and effect and executed counterparts of each shall have been delivered to the Administrative Agent or its designee (on behalf of the Certificate Trustee, the Certificate Holders, the CP Lender, the Facility Lenders and the Administrator) on or before such date and no event shall have occurred and be continuing that constitutes a Lease Default or a Lease Event of Default. (b) If On such date, the ~~Shire Acquisition is effected by way~~ representations and warranties of ~~a Scheme~~the parties hereto referenced in Section 3 shall be true and correct with the same effect as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties were true and correct on and as of such earlier date), and the parties to this Agreement shall have received an Officer's Certificate dated such date from the Lessee, the Administrative Agent and the Certificate Trustee, certifying as to the foregoing with respect to itself and stating that no Default or Event of Default has occurred and is continuing with respect to it. (c) The Lessee shall have ~~received:~~caused (i) Financing Statements to have been filed in such places as any Participant or the Administrative Agent may reasonably request no later than five (5) Business Days prior to such date and (ii) all documents necessary to protect the Certificate Trustee's and the Administrative Agent's interest in the Aircraft delivered on such date to have been filed with the FAA. (d) The parties to this Agreement shall have received the favorable written opinion of each of (i) James Hopewell, Esq., Corporate Counsel for the Lessee, (ii) Baker & ▇▇▇▇▇▇▇▇, ▇▇▇▇ial counsel for the Lessee, (iii) Ray, Quinney & ▇▇▇eke▇, ▇▇▇▇▇el for the Certificate Trustee and Administra▇▇▇▇ ▇▇ent, ▇▇▇ (iv) Daugherty, Fowler, Peregrin & Haught, special FAA counsel, in each case in form and substance satis▇▇▇▇▇▇y to it. (e) The Administrative Agent, for the benefit of the Certificate Trustee, the Certificate Holders, the CP Lender, the Facility Lenders and the Agents, shall have received certificates of insurance in form and substance reasonably satisfactory to the Administrative Agent signed by the insurer or by an independent insurance broker evidencing insurance coverages required pursuant to Section 11 of the Lease with respect to the Aircraft delivered on such date. (f) The Lessee shall deliver or cause to be delivered to the Administrative Agent, for the benefit of the Certificate Trustee, the Certificate Holders, the CP Lender, the Facility Lenders and the Agents, the following, each, unless otherwise noted, dated such Closing Date and in form and substance satisfactory to them, (i) certified copies of its certificate of incorporation, together with a good standing certificate, from the State of Michigan, each dated a recent date prior to such Closing Date, (ii) copies of its articles of incorporation, by-laws and the resolution of its Board of Directors by which the Lessee has the authority to enter into the transactions contemplated hereby and to execute and deliver, and to perform its obligations under the Operative Documents to which it is or will be a party, certified as of the Closing Date by its corporate secretary or assistant secretary as being in full force and effect without modification or amendment, and (iii) incumbency certificates of its officers executing the Operative Documents to which it is a party. (g) The Trust Company shall deliver or cause to be delivered to the Certificate Holders, the CP Lender, the Facility Lenders and the Agents the following, each unless otherwise noted dated the Closing Date and in form and substance satisfactory to them, (i) a certificate of good standing from the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) office of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy Comptroller of the ~~documents specified in paragraphs~~ Currency dated a recent date prior to such Closing Date, (ii) a certified copy of its articles of association, by-laws and the resolution of its Board of Directors or applicable committee thereof approving and authorizing the execution, delivery and performance of the Operative Documents to which it is or will be a party, certified as of such Closing Date by an authorized officer as being in full force and effect without modification or amendment, and (iii) ~~below~~ incumbency certificates of its officers executing the Operative Documents to which it is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentsparty. (ch) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the~~ The Administrative Agent shall ~~have received:~~ deliver or cause to be delivered to the Certificate Holders, the CP Lender, the Facility Lenders and the Administrator the following, each unless otherwise noted dated the Closing Date and in form and substance satisfactory to them, (i) a certificate of good standing from the ~~Borrower signed by~~ State of Nevada dated a ~~director certifying: (1) the~~ recent date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to ~~the~~ such Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a certified copy of its articles of association, by-laws and the ~~Takeover Offer Document~~ resolution of its Board of Directors or applicable committee thereof approving and authorizing the execution, delivery and performance of the Operative Documents to which it is ~~consistent~~ or will be a party, certified as of such Closing Date by an authorized officer as being in ~~all material respects with~~ full force and effect without modification or amendment, and (iii) incumbency certificates of its officers executing the ~~terms~~ Operative Documents to which it is a party. (i) The Certificate Trustee, the Certificate Holders, the CP Lender, the Facility Lenders and ~~conditions in~~ the ~~Offer Press Announcement, except to~~ Agents shall have received the ~~extent changes thereto have been~~ Notice of Delivery required pursuant to ~~the City Code or required by the Panel or are permitted under the Loan Documents~~Section 2.3(b). (dj) On Each Certificate Holder shall have made available its respective portion of its Commitment in the ~~date~~ amount specified in, and otherwise in accordance with, Section 2.2 and the CP Lender (or each of the ~~applicable borrowing request~~ Facility Lenders, as the case may be), shall have made available its respective Commitment in the amount specified in, and ~~on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or~~otherwise in accordance with, ~~if a Certain Funds Representation does not include a materiality concept, true in all material respects~~Section 2.2. (ek) ~~Where~~ The Certificate Trustee, the ~~Shire Acquisition is to be implemented by way of a Scheme~~Certificate Holders, ~~each of~~ the ~~Shire Acquisition~~ CP Lender, the Facility Lenders and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received ~~a Notice~~ the opinion of ~~Borrowing~~ the Appraiser with respect to the Aircraft to be delivered on such date, in ~~accordance with Section 2.02~~form and substance satisfactory to all such parties. (gl) The Administrative Agent shall have received ~~a pro forma consolidated balance sheet~~ evidence satisfactory to it that the Transaction Costs and ~~related pro forma consolidated statement of income of AbbVie NewCo~~ all Fees due and ~~its Subsidiaries as of and for the twelve-month period ending~~ payable on ~~the last day of the most recently completed four-fiscal quarter period ended at least 45 days~~ or prior to such date have been paid. (m) There shall have been duly issued and delivered by the Certificate Trustee to the CP Lender (or the Facility Lenders, as the case may be), against payment therefor, the Notes and to the Certificate Holders, the Certificates, each dated the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (hn) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent ~~shall notify the Borrower~~ and the ~~Lenders of~~ Lessee shall have received a certificate, from the Arranger dated the Closing Date ~~as soon as practicable upon its occurrence,~~ with respect to offerees of the Notes and ~~such notice shall be conclusive and binding~~Certificates.

Appears in 1 contract

Sources: Participation Agreement (Steelcase Inc)

Conditions Precedent to Closing Date. The ~~obligation of each Lender to make an Advance on the~~ Closing Date is subject to the fulfillment, to the satisfaction ~~(or waiver in accordance with Section 9.01)~~ of Agent and its counsel, of each of the following ~~conditions:~~conditions on or before April 28, 2000 (or such earlier date as may be specified below): (a) ~~The Effective Date~~ Agent shall have ~~occurred.~~received all financing statements and fixture filings required by Agent, duly executed by Borrower and each of the other Loan Parties; (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative~~ Agent shall have ~~received~~received each of the following documents, in form and substance satisfactory to Agent, duly executed, and each such document shall be in full force and effect: ~~(i) a certificate~~ i. the Lockbox Agreements; ii. the Pay-Off Letters executed by each of ▇▇▇▇▇▇▇ Sachs Credit Partners, L.P., and its Affiliates under which such Persons are obligated to deliver to Agent UCC termination statements and other documentation evidencing the ~~Borrower signed~~ termination by ~~a director certifying: (1) the date on which the Scheme Circular was posted~~ each of them of its respective Liens in and to the ~~shareholders~~ properties and assets of ~~Shire~~Borrower and the other Loan Parties; iii. the Guaranty Agreements; iv. the Stock Pledge Agreements; v. the Security Agreements; and vi. such other documents as shall be required by Agent; (2c) Agent shall have received a certificate from the ~~date on which the Court has sanctioned the Scheme~~ Secretary of Borrower and ~~that the Court Order has been duly delivered~~ each other Loan Party attesting to the ~~Registrar in accordance with Article 125(3)~~ resolutions of Borrower's and each other Loan Party's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the ~~Jersey Companies Law~~other Loan Documents to which it is a party and authorizing specific officers of it to execute the same; (3d) Agent shall have received copies of Borrower's and each other Loan Party's Governing Documents, as ~~to the satisfaction of each condition set forth in clauses (d)~~amended, ~~(e) (to the extent relating to the Scheme)~~modified, ~~(f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended~~ or ~~superseded on or prior~~ supplemented to the Closing Date, ~~except to the extent such changes thereto have been required pursuant to the City Code or required~~ certified by the ~~Panel or to~~ Secretary of Borrower and each other Loan Party, as the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shirecase may be; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a ~~Notice~~ certificate of ~~Borrowing~~ status with respect to Borrower and each other Loan Party, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower and each other Loan Party, which certificate shall indicate that Borrower and each other Loan Party is in ~~accordance~~ good standing in such jurisdiction; (f) Agent shall have received certificates of status with ~~Section 2.02.~~respect to Borrower and each other Loan Party, each dated within 15 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower and each other Loan Party is in good standing in such jurisdictions; (g) ~~The Administrative~~ [Intentionally omitted]; (h) Agent shall have received ~~a pro forma consolidated balance sheet~~ an opinion of Borrower's counsel and ~~related pro forma consolidated statement of income of AbbVie NewCo~~ each Guarantor's counsel in form and substance satisfactory to Agent in its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof.sole discretion; (i) ~~After giving effect~~ Borrower or CCI shall have not less than $125,000,000 of Availability and unrestricted immediately available cash on hand after making the payments described in Section 7.17(a) and the $187,500 due on the Closing --------------- Date pursuant to Section 2.11(a), as determined by Agent; --------------- (j) Agent shall have received and reviewed (i) Borrower's consolidated December 31, 1999 financial statements prepared by Borrower's accountants which they are prepared to issue as audited provided that such financial statements would be subject to a going concern qualification, and the results of such review shall be satisfactory to Agent, and (ii) Borrower's consolidated February 29, 2000 financial statements prepared by Borrower's management, and the results of such review shall be satisfactory to Agent, in its sole discretion; (k) Agent shall have completed its legal due diligence, including a review of material contracts (including the indentures with respect to all material debt), and the results thereof shall be satisfactory to Agent, in its sole discretion; (l) there shall have been no material adverse change in the business, operations, assets, financial condition or prospects of Borrower and guarantors since December 31, 1999 which is not set forth in Borrower's business plan and financial projections dated as of February 15, 2000 which Borrower delivered to Agent prior to March 21, 2000; (m) at least $150,000,000 of additional equity capital shall have been contributed to Borrower or CCI, on terms and conditions and pursuant to documentation mutually acceptable to Borrower and Agent; (n) Agent and counsel to Agent shall have received and reviewed all documentation relating to the ~~consummation of the Scheme~~Unsecured Notes, ~~or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer~~including, ~~immediately after the Company Merger~~without limitation, the ~~holders of Shire Shares immediately prior to the effectiveness~~ Unsecured Notes Indenture, and all of such ~~Scheme or purchase pursuant~~ documentation, and the terms and provisions of such documentation, including, without limitation, the Unsecured Notes and the Unsecured Notes Indenture, shall be acceptable to ~~such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of~~ Agent and ~~value of AbbVie NewCo. The Administrative~~ its counsel; (o) Agent shall ~~notify the Borrower and the Lenders~~ have received payment in full in immediately available funds of all amounts due on the Closing Date ~~as soon as practicable upon~~ pursuant to Section ------- 2.11(a); ------- (p) Agent shall have received evidence satisfactory to Agent in its ~~occurrence~~sole discretion that the Lien securing any and all present or future Indebtedness or obligations of any Loan Party to Cisco Systems, Inc., Cisco Systems Capital Corporation or any of their respective Affiliates is limited to the specific items and property described on Exhibit 3.1(p) attached hereto and -------------- made a part hereof, and that all security agreements pertaining to such ~~notice~~ Indebtedness or other obligations shall have been amended to provide that such Lien is so limited; (q) Agent shall have received the original stock certificates evidencing all shares of stock of Cavion Technologies, Inc. owned or controlled by any Loan Party, together with stock powers covering such shares duly executed in blank by each Loan Party which owns or controls any such shares; and (r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be ~~conclusive~~ in form and ~~binding~~substance satisfactory to Agent and its counsel.

Appears in 1 contract

Sources: Loan and Security Agreement (Convergent Communications Inc /Co)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of each of the Borrower, the Servicer and the Equityholder contained in the Facility Documents shall be true and correct (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Servicer (i) certifying as to its Constituent Documents, (ii) certifying as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) certifying that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of such earlier date), (iv) attaching a good standing certificate from the applicable Governmental Authority of each Person’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Closing Date, (v) certifying that no Default or Event of Default has occurred and is continuing, and (vi) certifying as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) results of a recent lien search in each relevant jurisdiction with respect to (i) the Borrower, confirming the priority of the Liens in favor of the Collateral Agent created pursuant to the Facility Documents and revealing no liens on any of the assets of the Borrower except for Permitted Liens and (ii) the Equityholder, confirming the priority of the Liens in favor of the Collateral Agent created pursuant to the Facility Documents; (g) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Servicer and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to the ~~shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ Administrative Agent that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating~~ Administrative Agent (including any upfront fee, syndication fee and structuring fee due to the ~~Scheme~~Administrative Agent under the Administrative Agent Fee Letter) ~~below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under~~ Lenders, and of counsel to the ~~Loan~~ Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall have been paid by the Borrower; (j) solvency certificates reasonably satisfactory to the Administrative Agent from an authorized signatory of the Borrower and the Equityholder; (k) evidence reasonably satisfactory to the Administrative Agent that there shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments pending or threatened in writing in any court or before any arbitrator or Governmental Authority that relates to the transactions contemplated by this Agreement and the other Facility Documents or ~~pursuant~~ that could reasonably be expected to have a Material Adverse Effect; (l) with respect to any ~~fee or similar letters relating~~ Advance to ~~the Loan Documents shall~~ be ~~paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable~~ made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet~~ respect to such Advance demonstrating that immediately after the making of such initial Advance and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for~~ the ~~twelve-month period ending on the last day~~ purchase of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Portfolio Investments on the Closing Date, ~~prepared~~ the Borrowing Base Test shall be satisfied; (m) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Portfolio Investments that all payments shall be made directly to the applicable Collection Account and any Collections in possession of the Borrower or its Affiliates as of the Closing Date shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties; (n) a Borrowing Base Calculation Statement dated as of the Closing Date, showing a calculation of the Borrowing Base after giving effect to the ~~Transactions~~ transactions contemplated on the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent; (o) the valuation reports obtained by the Equityholder for the quarter ending September 30, 2025 with respect to all Portfolio Investments to be acquired by the Borrower on the Closing Date; (p) the Equityholder’s Investment Policies as in effect on the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent; (q) sufficiently in advance of the Closing Date, (x) all documentation and other information required under applicable “know your customer” provisions of Anti-Money Laundering Laws, including the PATRIOT Act and (y) if the ~~Transactions had occurred~~ Borrower qualifies as ~~of such date~~ a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower; (~~in the case of such balance sheet~~r) ~~or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”)~~any other documents, ~~it being acknowledged that neither~~ instruments, certificates, opinions and information as the Administrative Agent ~~nor any~~ or a Lender ~~shall have any approval right as regards~~ may reasonably request or require in form and substance reasonably satisfactory to the ~~form~~ Administrative Agent or ~~contents of the Pro Forma Financials).~~such Lender; and (hs) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect a payoff letter with respect to the ~~consummation~~ Equityholder’s existing Amended & Restated Senior Secured Revolving Credit Agreement, dated as of ~~the Scheme~~March 21, ~~or if the Shire Acquisition is implemented~~ 2025, by ~~way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer~~and among, ~~immediately after the Company Merger~~inter alia, the ~~holders~~ Equityholder and ING Capital LLC, evidencing the termination of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower all commitments thereunder and the ~~Lenders~~ satisfaction of ~~the Closing Date as soon as practicable upon its occurrence,~~ all obligations (other than with respect to contingent liabilities and ~~such notice shall be conclusive and binding~~confidentiality obligations) incurred pursuant thereto.

Appears in 1 contract

Sources: Credit and Security Agreement (FIDUS INVESTMENT Corp)

Conditions Precedent to Closing Date. The obligation of each Lender to make ~~an Advance on~~ a Loan requested by the ~~Closing Date is~~ Borrower in accordance with Section 3.01 shall be subject to the ~~satisfaction~~ satisfaction, on or before November 30, 2021, of each of the following conditions (or waiver thereof in accordance with Section 9.01~~) of the following conditions:~~): (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section ~~2.02~~3.01(a). (gc) Confirmation that the Borrower has paid all accrued fees and expenses of the Administrative Agent (including, without limitation, amounts then payable under the Fee Letter) and the Lenders hereunder (including the fees and expenses of counsel to the Administrative Agent to the extent then payable). (d) On the Closing Date the following statements shall be true (and the acceptance by the Borrower of Loans shall constitute a representation and warranty by such Borrower that on the Closing Date such statements are true): (i) The ~~Administrative Agent~~ representations and warranties contained in Article V (Representations and Warranties) are correct in all material respects (except any representations and warranties that are qualified by materiality, which shall ~~have received a pro forma consolidated balance sheet~~ be true and ~~related pro forma consolidated statement of income of AbbVie NewCo~~ correct in all respects) on and ~~its Subsidiaries~~ as of ~~and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to~~ the Closing Date, ~~prepared~~ before and after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents making of the ~~Pro Forma Financials). (h) It is not illegal for any Lender~~ Loans and to ~~lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting~~ the application of the proceeds ~~thereof.~~ therefrom, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a date other than the Closing Date, which are true and correct as of such earlier date; and (iii) ~~After giving effect to~~ No event has occurred and is continuing, or would result from such Borrowing or issuance or from the ~~consummation~~ application of the ~~Scheme~~proceeds therefrom, ~~or if the Shire Acquisition is implemented by way of~~ which constitutes a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and bindingDefault.

Appears in 1 contract

Sources: Term Loan Agreement (FMC Corp)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective and the Closing Date shall occur when Administrative Agent has received all of ~~each Lender to make an Advance~~ the agreements, documents, instruments and other items described in this Section 4.01 and the other conditions precedent set forth in this Section 4.01 have been satisfied (and on the Closing Date, Administrative Agent shall deliver written notice to Borrower and Lenders that such conditions precedent have been satisfied and that the Closing Date ~~is subject to the satisfaction (or waiver in accordance with Section 9.01)~~ has occurred, which written notice shall be conclusive of ~~the following conditions:~~such occurrence): (a) ~~The Effective~~ Unless waived by all Lenders, each of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of Borrower, each dated on, or in the case of third-party certificates recently before, the Closing Date ~~shall~~ and each in form and substance satisfactory to Administrative Agent and its legal counsel: (i) Executed counterparts of this Agreement, sufficient in number for distribution to Administrative Agent, Lenders and Borrower; (ii) Notes executed by Borrower in favor of each Lender requesting same, substantially in the form attached as Exhibit C; (iii) Such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of Borrower as Administrative Agent may request to establish the identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer thereof; (iv) Such evidence as Administrative Agent may request to verify that Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction in which it is required to be qualified to engage in business, including certified copies of Borrower's certificate of incorporation and bylaws and certificates of good standing and/or qualification to engage in business; (v) A certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.01(c) and (d) have ~~occurred~~been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has a Material Adverse Effect, and (C) the current Debt Ratings; (vi) An opinion of counsel to Borrower in form and substance reasonably satisfactory to Administrative Agent; and (vii) Such other customary certificates, documents or opinions as Administrative Agent or Required Lenders reasonably may require. (b) If Any fees required to be paid on or before the ~~Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ Closing Date shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentspaid. (c) ~~If the Shire Acquisition is effected~~ The representations and warranties made by ~~way of a Takeover Offer~~Borrower herein, ~~the Administrative Agent~~ or which are contained in any certificate, document or financial or other statement furnished at any time under or in connection herewith, shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is be correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects ~~with~~ on and as of the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan DocumentsClosing Date. (d) ~~On the date~~ No Default or Event of ~~the applicable borrowing request~~ Default shall have occurred and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respectsbe continuing. (e) ~~Where~~ All consents or approvals of, filings with, and other actions by, any Governmental Authority that are necessary or appropriate for the ~~Shire Acquisition is to be implemented~~ execution, delivery and performance by ~~way of a Scheme, each~~ Borrower of the ~~Shire Acquisition and the Company Merger~~ Loan Documents shall have ~~been~~been obtained, made or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documentstaken. (f) ~~All fees and other amounts due and payable~~ Unless waived by ~~the Borrower~~Administrative Agent, ~~AbbVie and their Subsidiaries to the Arranger, the~~ Borrower shall have paid all Attorney Costs of Administrative Agent ~~and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid,~~ to the extent invoiced ~~at least one Business Day~~ prior to ~~the Closing Date by the relevant person and to the extent such amounts are payable~~ or on ~~or prior to~~ the Closing Date~~. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02~~. (g) ~~The Administrative Agent~~ All commitments under the Prior 364-Day Agreement shall have ~~received a pro forma consolidated balance sheet~~ been terminated and ~~related pro forma consolidated statement~~ all amounts owing thereunder through the date of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender termination shall have ~~any approval right as regards the form or contents of the Pro Forma Financials)~~been paid in full. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (Comcast Cable Communications Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ In addition to the conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the time, if any, before 5:00 p.m., New York City time, on August 24, 2015, that each ~~Lender~~ of the following conditions has been satisfied (the date, if any, upon which such conditions are first satisfied is referred to ~~make an Advance~~ herein as the “Closing Date”; if such conditions are not satisfied prior to 5:00 p.m., New York City time, on August 24, 2015, the Closing Date shall not occur and Lenders shall not be required to fund any Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder): (a) Each Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof; provided, however, that Borrowers shall not be required to deliver a Lien Waiver on the Closing Date ~~is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred~~for a location for which Agent has established a Rent and Charges Reserve. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative~~ The Agent shall have ~~received: (i) a certificate of~~ received the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ Intercreditor Agreement, executed and ~~that the Court Order has been duly~~ delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the ~~Panel or to~~ Borrowers, the ~~extent not prohibited by~~ Guarantors, the Term Loan ~~Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release~~ Agent and the ~~Scheme Resolutions~~Agent, and each party thereto shall be in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentscompliance with all terms thereof. (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ The Collateral and Guarantee Requirement shall have been satisfied and Agent shall have ~~received: (i)~~ received a ~~certificate~~ completed Perfection Certificate dated as of the ~~Borrower~~ Closing Date and signed by an executive officer or Financial Officer of the Parent Borrower, together with all attachments contemplated thereby, including the results of a ~~director certifying:~~ search of the Uniform Commercial Code (1or equivalent) ~~the date on which the Takeover Offer Document was posted~~ filings made with respect to the ~~shareholders~~ Obligors in the jurisdictions contemplated by the Perfection Certificate and copies of ~~Shire;~~ the financing statements (2or similar documents) as disclosed by such search and evidence reasonably satisfactory to the ~~satisfaction of each condition set forth in clauses~~ Agent that the Liens indicated by such financing statements (~~d), (e~~or similar documents) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended are permitted by Section 10.2.2 or ~~superseded on or prior to the Closing Date, except to the extent such changes thereto~~ have been ~~required~~ released or will be released pursuant to ~~the City Code~~ UCC-3 financing statements or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions other release documentation delivered to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan DocumentsAgent. (d) ~~On the date of the applicable borrowing request~~ Agent shall have received duly executed agreements establishing and/or evidencing each Dominion Account and ~~on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ related lockbox and ~~(y) all the Certain Funds Representations are true or~~each Controlled Account, ~~if a Certain Funds Representation does not include a materiality concept~~each in form and substance, ~~true in all material respects~~and with financial institutions, satisfactory to Agent. (e) ~~Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger~~ Agent shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummatedreceived certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of each ~~case~~Borrower certifying that, ~~without~~ after giving effect to the initial Loans and transactions hereunder, (i) no Default exists; (ii) the representations and ~~there shall not have been~~warranties set forth in Section 9 are true and correct; and (iii) ~~any modifications, amendments, consents, requests or waivers~~ such Borrower has complied with all agreements and conditions to be satisfied by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by it under the Loan Documents. (f) ~~All~~ Agent shall have received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as well as any local counsel to Obligors or Agent, in form and substance satisfactory to Agent. (h) Agent shall have received copies of the charter documents of each Obligor, certified by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization and each jurisdiction in the United States and Canada where such Obligor’s conduct of business or ownership of Property necessitates qualification. (i) Agent shall have received copies of policies or certificates of insurance for the insurance policies carried by Obligors, together with a loss payable endorsement naming Agent as loss payee and reasonably acceptable to Agent, all in compliance with the Loan Documents. (j) Agent shall have completed its business, financial and legal due diligence of Obligors, including a roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the financial condition of Obligors and their Subsidiaries, taken as a whole, or in the quality, quantity or value of any Collateral shall have occurred since December 31, 2014. The capital structure of the Obligors shall be satisfactory to Agent. (k) Borrowers shall have paid all fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses to ~~the Arranger, the Administrative~~ be paid to Agent ~~and~~ and/or the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date~~. The Administrative~~ . (l) Agent shall have received a ~~Notice of~~ Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries Base Report as ~~of and for the twelve-month period ending on the last day~~ of the most ~~recently completed four-fiscal quarter period ended~~ recent month ending at least 45 15 days prior to the Closing Date~~, prepared after~~ . (m) Upon giving effect to the ~~Transactions as if~~ Transactions, Availability shall be at least $50,000,000. (n) The Agent and the ~~Transactions had~~ 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. (o) Agent and Lenders (i) shall have received (A) the financial statements referred to in Section 9.1.4(a) and (b), and (B) projections of Borrowers’ consolidated balance sheets, results of operations, cash flow and Availability for the 2015 and 2016 Fiscal Years, quarter by quarter, all in form and substance satisfactory to Agent, and (ii) shall be reasonably satisfied that no material change has occurred as with respect to the assumptions made in such projections from the date the same are delivered to Agent and Lenders; (p) Agent shall have received executed copies of ~~such date~~ the material Term Loan Documents, which shall be in form and substance satisfactory to Agent, shall be in full force and effect and all conditions to the extension of credit thereunder shall have been satisfied. (q) Agent shall have received evidence satisfactory to Agent that Borrowers have received (or will receive concurrently with the effectiveness of this Agreement), in immediately available funds, the proceeds of the Term Loan Debt in the ~~case~~ amount of ~~such balance sheet)~~ not less than $200,000,000, and that the proceeds thereof have been, or at shall be on the ~~beginning of such period (~~Closing Date, used for the purposes described in the ~~case of such statement of income~~Term Loan Agreement. (r) ~~(the “Pro Forma Financials”), it being acknowledged that neither the Administrative~~ Agent ~~nor any Lender~~ shall have received evidence satisfactory to Agent that the Term Loan Agent has received the originals of any ~~approval right as regards the form or contents~~ pledged Collateral representing all of the ~~Pro Forma Financials~~issued and outstanding shares of the Equity Interests constituting Collateral and required to be delivered under the Loan Documents, in each case together with stock powers (or the equivalent) duly executed in blank with respect thereto. (s) The terms of the Spin-Off Documentation shall be reasonably satisfactory to the Agent and the Spin-Off shall have been consummated (or shall be consummated substantially simultaneously with the initial funding of Term Loan Debt on the Closing Date) in accordance with Applicable Law and the Spin-Off Documentation (without giving effect to any modification or waiver of any provision of, or any consent given in respect of, the Spin-Off Documentation not approved by the Agent). (ht) ~~It is not illegal for any Lender~~ Agent shall have received a letter, in form and substance satisfactory to ~~lend~~ Agent, from JPMorgan Chase Bank, N.A., in its capacity as administrative agent and ~~there is no injunction, restraining order or equivalent prohibiting any Lender~~ collateral agent under the Existing Credit Facility (“Existing Agent”) to Agent confirming that the Obligors and their Subsidiaries are released from ~~lending its portion~~ all obligations under the Existing Credit Facility and providing a release of all of the ~~Advances or restricting~~ Liens existing in favor of Existing Agent in and to the ~~application~~ assets of the ~~proceeds thereof~~applicable Obligors and their Subsidiaries, together with termination statements and other documentation evidencing the termination by Existing Agent of its Liens in and to the properties and assets of the applicable Obligors and their Subsidiaries. (iu) ~~After giving effect~~ Agent shall have received a supplement to ~~the consummation~~ Schedule 9.1.13 setting forth a description of all material insurance policies maintained by or on behalf of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Parent Borrower and the ~~Lenders~~ Subsidiaries as of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and to the extent deemed appropriate by Parent Borrower, supplements to Schedules 9.1.5, 9.1.12 and 10.2.1 reflecting any and all changes in the names of the Subsidiaries of the Borrowers referred to therein made in connection with the Spin-Off to the extent necessary to make such ~~notice~~ schedules true, correct and complete on the Closing Date, in each case in form and substance reasonably acceptable to Agent. Unless Agent shall advise the Parent Borrower in writing that any such proposed supplements are not reasonably acceptable to Agent, Schedules 9.1.5, 9.1.12, 9.1.13, and/or 10.2.1 shall be ~~conclusive and binding~~deemed to be automatically amended on the Closing Date to reflect any applicable supplement to such Schedules delivered pursuant to this clause without the necessity of any further action.

Appears in 1 contract

Sources: Loan Agreement (Horizon Global Corp)

Conditions Precedent to Closing Date. ~~The obligation~~ Occurrence of ~~each Lender to make an Advance on~~ the Closing Date is subject to the Commitment Effective Date having occurred, and to the satisfaction ~~(or waiver in accordance with Section 9.01)~~ of the following ~~conditions:~~conditions precedent (unless the Requisite Lenders, in their sole and absolute discretion, shall agree otherwise): (a) ~~The Effective Date~~ each of the conditions to Closing as set forth in Section 4.2 of the Credit Agreement as in effect on the date hereof shall have ~~occurred.~~been satisfied and each of the conditions to Offer Borrowings as set forth in Section 4.3 of the Credit Agreement as in effect on the date hereof shall have been satisfied (which such Sections are hereby incorporated by reference MUTATIS MUTANDIS as if set forth herein in its entirety); (b) If the ~~Shire Acquisition is effected by way of a Scheme,~~ Credit Agreement as in effect on the ~~Administrative Agent~~ date hereof shall ~~have received: (i) a certificate~~ be in full force and effect and Loans in the full amount of the ~~Borrower signed by a director certifying: (1)~~ commitments thereunder in effect on the date ~~on which the Scheme Circular was posted to the shareholders of Shire~~hereof shall be available for borrowing; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts then due and payable ~~by the Borrower, AbbVie and their Subsidiaries~~ to ~~the Arranger, the Administrative Agent and~~ the Lenders under the Loan Documents ~~or pursuant to any fee or similar letters relating to the Loan Documents~~ shall ~~be paid,~~ have been paid in full; (d) to the extent ~~invoiced at least one Business Day prior~~ requested, Notes shall have been executed by the Company in favor of each Lender, each in a principal amount equal to that Lender's Commitment; (e) the Subsidiary Guaranty shall have been duly executed and delivered to the ~~Closing Date~~ Lenders by each of Lincoln Electric International Holding Company, the ~~relevant person~~ Lincoln Electric Company, Lincoln Global, Inc. and Harr▇▇ ▇▇▇orific, Inc.; (f) notice of borrowing shall have been given to the ~~extent such amounts are payable on or prior~~ Lenders pursuant to ~~the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with~~ Section ~~2.02.~~2.2 hereof; and (g) ~~The Administrative Agent~~ no Event of Default pursuant to Sections 8.6, 8.7, 8.9 or 8.12 of the Credit Agreement as in effect on the date hereof shall have ~~received a pro forma consolidated balance sheet~~ occurred and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ be continuing in respect of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Target or the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Company. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Bridge Loan Agreement (Lincoln Electric Holdings Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to the satisfaction~~ following conditions precedent have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~8.01): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) If Since December 31, 2019, there shall not have occurred any event or condition that has had or would be reasonably expected to have, either individually or in the ~~Shire Acquisition is effected~~ aggregate, a Material Adverse Effect. (c) All fees due to the Administrative Agent, the Arrangers and the Lenders shall have been paid, and all expenses of the Administrative Agent and the Arrangers that are required to be paid or reimbursed by ~~way of a Scheme~~the Borrower and that have been invoiced at least three Business Days prior to the Closing Date shall have been so paid or reimbursed. (d) On the Closing Date, the following statements shall be true and the Administrative Agent shall have ~~received~~received a certificate of the Borrower, dated the Closing Date, stating that: (i) ~~a certificate~~ Each of the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ representations and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition~~ warranties set forth in ~~clauses~~ Section 4.01 are true and correct in all material respects (~~d), (e) (~~except to the extent ~~relating to the Scheme~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects), ~~(f)~~ on and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy~~ as of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent any such ~~changes thereto~~ representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been ~~required pursuant to the City Code or required by the Panel or~~ true and correct in all material respects (except to the extent ~~not prohibited by the Loan Documents~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date; and (ii) No event has occurred and is continuing, or shall occur as a ~~copy~~ result of the ~~Scheme Circular which is consistent in all material respects with~~ occurrence of the ~~terms and conditions in the Press Release and the Scheme Resolutions~~Closing Date, ~~in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by~~ that constitutes a ~~court of competent jurisdiction or are not prohibited by the Loan Documents~~Default. (ce) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the~~ The Administrative Agent shall have ~~received~~received on or before the Closing Date, each dated on or about such date: (i) a Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (ii) A certificate of the Secretary or an Assistant Secretary of the Borrower ~~signed~~ certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by ~~a director certifying:~~it hereunder; and (1iii) ~~the date on which the Takeover Offer Document was posted~~ A favorable opinion letter from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the ~~shareholders of Shire; (2) as to~~ Borrower, in the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded form agreed on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The ~~Administrative Agent~~ 2018 Credit Agreement shall have ~~received a Notice of Borrowing~~ been terminated in accordance with Section ~~2.02~~8.15. (g) ~~The~~ To the extent requested by a Lender, delivery of executed promissory notes. (h) To the extent requested by any Lender through the Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended in writing at least ~~45 days~~ 10 Business Days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided the documentation and other information to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~form or contents of~~ Patriot Act and the ~~Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction~~Beneficial Ownership Regulation, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately at least three Business Days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoClosing Date. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~such conditions precedent being satisfied (or waived in accordance with Section 8.01), and such notice shall be conclusive and ~~binding~~binding evidence of the occurrence thereof.

Appears in 1 contract

Sources: Credit Agreement (Abbott Laboratories)

Conditions Precedent to Closing Date. ~~The obligation of each Lender to make an Advance on the Closing Date is subject~~ In addition to the ~~satisfaction~~ conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (~~or waiver in accordance with Section 9.01~~“Closing Date”) that each of the following ~~conditions~~conditions has been satisfied: (a) ~~The Effective Date~~ As required by Agent to be executed as of the Closing Date, each Loan Document shall have ~~occurred~~been duly executed and delivered to Agent by each of the signatories thereto. (b) If All filings or recordations necessary to perfect the ~~Shire Acquisition is effected by way of a Scheme~~Agent’s Liens in the Collateral (other than any such filings to occur after the Closing Date in accordance with the terms hereof) shall have been made, ~~the Administrative~~ and Agent shall have ~~received:~~received UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. ▇▇▇▇▇▇▇▇ – Loan, Security and Guaranty Agreement #53354946 (c) Parent shall have consummated a Qualified IPO which results in gross proceeds to Parent of at least $90,000,000 and, in any event, in an amount sufficient to provide for the payment in full of all fees, costs and expenses incurred in respect of the Qualified IPO and the closing of this credit facility. (d) Agent shall have received a duly executed Deposit Account Control Agreement for each of Obligor’s Deposit Accounts (other than Excluded Accounts) in existence on the Closing Date, to the extent requested by the Agent. (e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Parent certifying on behalf of each Borrower that, after giving effect to the initial Loans and transactions hereunder, (i) ~~a certificate of the~~ such Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) belowis Solvent; ~~and (4) each copy of the documents specified in paragraphs~~ (ii) no Default or Event of Default exists; and (iii) ~~below is~~ the representations and warranties set forth in Section 9 are true and correct ~~and complete and has not been amended or superseded on or prior to~~ in all material respects as of the Closing Date, except to the extent such ~~changes thereto~~ representations and warranties refer to a specified date, in which case the same shall continue on the Closing Date to be true and correct as of the applicable specified date (or, in the event such representations and warranties are qualified by materiality or Material Adverse Effect or language of similar import, such representations shall be true and correct in all respects as of the Closing Date). (f) Agent shall have ~~been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; ~~and~~ (ii) a that an attached copy of resolutions authorizing execution and delivery of the ~~Scheme Circular which~~ Loan Documents is ~~consistent~~ true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all ~~material respects~~ resolutions adopted with respect to this credit facility; and (iii) to the ~~terms~~ title, name and ~~conditions~~ signature of each Person authorized to sign the Loan Documents on behalf of such Obligor. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the ~~Press Release~~ Obligors and (ii) McAfee & ▇▇▇▇, Oklahoma counsel to the ~~Scheme Resolutions~~Obligors, in each case, ~~except~~ in form and substance satisfactory to Agent in its Permitted Discretion. (h) Agent shall have received copies of the ~~extent changes thereto have been required pursuant to the City Code or required~~ charter documents of each Obligor, certified by the ~~Panel~~ Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by ~~a court~~ the Secretary of ~~competent~~ State or other appropriate official of such Obligor’s jurisdiction ~~or are not prohibited~~ of organization. (i) Agent shall have received certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents. (cj) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ Agent shall have ~~received: (i)~~ completed its business, financial and legal due diligence of Obligors, including a ~~certificate~~ roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the ~~Borrower signed by a director certifying: (1)~~ financial condition of any Obligor or in the ~~date on which the Takeover Offer Document was posted to the shareholders~~ quality, quantity or value of ~~Shire; (2) as to the satisfaction of each condition set forth in clauses (d)~~any Collateral shall have occurred since December 31, (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents2016. (iik) ~~a copy of the Takeover Offer Document which is consistent in~~ Borrowers shall have paid all ~~material respects with the terms~~ fees and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is expenses to be ~~implemented by way of a Scheme, each of the Shire Acquisition~~ paid to Agent and ~~the Company Merger shall have been, or substantially concurrently with the occurrence of~~ Lenders on the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business Day prior to thereto. ▇▇▇▇▇▇▇▇ – Loan, Security and Guaranty Agreement #53354946 (l) The Existing PIK Notes shall have been, or shall simultaneously be, repaid, terminated or converted; provided that the ~~Closing Date by~~ amounts thereof payable in cash shall not exceed $13,000,000, and all other existing Debt for Borrowed Money of the ~~relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative~~ Obligors shall have been paid in full. (m) Agent shall have received a ~~Notice of~~ Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries Base Report prepared as of ~~and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date~~January 31, ~~prepared after~~ 2018. Upon giving effect to the ~~Transactions as if the Transactions had occurred as of such date (~~Qualified IPO referenced in ~~the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”~~Section 6.1(c), ~~it being acknowledged that neither~~ the ~~Administrative Agent nor any Lender shall have any approval right as regards the form or contents~~ calculation of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) ~~After giving effect~~ Availability, less (ii) an amount equal to ~~the consummation~~ all amounts due and owing to any of ~~the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately~~ Borrowers’ trade creditors which are outstanding more than thirty (30) days after the ~~Company Merger~~original invoice date, ~~the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer~~ shall ~~own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo~~be at least $50,000,000. The ~~Administrative~~ Agent shall notify the Borrower Agent and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Loan, Security and Guaranty Agreement (Quintana Energy Services Inc.)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of ~~each Lender to make an Advance on~~ the Closing Date is shall be subject to the satisfaction (or waiver ~~in accordance with Section 9.01)~~ of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded conditions on or prior to the Closing Date: (a) the Agreement shall not have been terminated in accordance with its terms; (b) the TSA Effective Date shall have occurred; (c) all governmental, ~~except~~ regulatory and third party notifications, filings, waivers, authorizations, and consents necessary or required to be obtained by the Company for the consummation of any part of the Transaction shall have been made or received, shall be in full force and effect, shall not be subject to unfulfilled conditions or contingencies, and shall be reasonably acceptable to the ~~extent such changes thereto have been required pursuant to~~ Consenting Sponsor and the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and~~Requisite Consenting Creditors; (iid) ~~a copy~~ the execution of each of the ~~Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions~~Definitive Documents, which, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall ~~have received:~~ be in form and substance (i) ~~a certificate~~ Consistent in all Material Respects with the Term Sheet; (ii) consistent with the terms of this Agreement; and (iii) with respect to any provisions not addressed by the ~~Borrower signed by a director certifying:~~ Term Sheet or this Agreement, (1A) ~~the date on which the Takeover Offer Document was posted~~ in form and substance reasonably acceptable to the ~~shareholders of Shire~~Company and the Consenting Sponsor (subject to the Consenting Sponsor Consent Right) and (B) in form and substance acceptable to the Consenting Creditors it being agreed that the exhibits attached hereto are acceptable to the Parties; (2e) as all conditions precedent to the ~~satisfaction~~ effectiveness of each ~~condition set forth in clauses (d), (e) (to~~ of the ~~extent relating to the Takeover Offer),~~ Definitive Documents shall have occurred; (f) ~~and (i) (~~no temporary restraining order, preliminary or permanent injunction, judgment or other order preventing the consummation of any part of the Transaction shall have been entered, issued, rendered or made by any party other than a Party, nor shall any proceeding seeking any of the foregoing by any party other than a Party be commenced or pending; nor shall there be any law, rule or regulation promulgated, enacted, entered, enforced or deemed applicable to the ~~extent relating to~~ Company which makes the ~~Takeover Offer) below~~consummation of any part of the Transaction illegal, void or rescinded; (3g) ~~each copy~~ the representations and warranties of the ~~documents specified~~ Company in ~~paragraph~~ this Agreement and each Definitive Document shall be true and correct in all material respects (iiwithout regard and without giving effect to any materiality or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty)) ~~below is correct~~ as of the Closing Date and ~~complete~~ the Company shall have delivered to the Consenting Sponsor and ~~has not been amended or superseded on or~~ the Consenting Creditors a written and signed certificate from a responsible executive officer of the Company confirming the same; (h) the Company shall have complied with its covenants and obligations under this Agreement and the other Definitive Documents to be performed prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company ~~Merger~~ shall have ~~been~~delivered to the Consenting Sponsor and the Consenting Creditors a written and signed certificate from a responsible executive officer of the Company confirming the same; (i) the Company shall have delivered to the Consenting Sponsor and the Consenting Creditors a written and signed certificate from a responsible executive officer of the Company confirming that, ~~or substantially concurrently with~~ subject to those conditions precedent that will be satisfied on the Closing Date, all conditions precedent to the occurrence of the Closing Date set forth in this Agreement and the other Definitive Documents have been satisfied (or if any such conditions precedent have not been satisfied, identifying such unsatisfied conditions precedent); (j) the Company shall ~~be, consummated in the case~~ have paid all reasonable and documented fees and out of pocket expenses of the ~~Shire Acquisition in all material respects~~ Ad Hoc Group Advisors in accordance with ~~the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment~~ this Agreement, their respective fee letters or client engagement letters for ~~Scheme Shares being made and~~ which an invoice has been received by the Company ~~Merger being consummated no more than two Business Days after~~ on or before the ~~initial Advance hereunder~~date that is one (1) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing ~~Date~~ Date; and (k) the Consent Threshold shall have been satisfied. Any of the foregoing conditions may be waived only by the ~~relevant person~~ Consenting Sponsor, the Requisite Consenting Creditors, and the Company; provided, however, no Party shall have the right to ~~the extent such amounts are payable on~~ waive any condition where that Party’s action is required to satisfy a condition, or ~~prior~~ whose act, or failure to act, gives rise to a breach or a failure of a condition, in each case, as of the Closing Date~~. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02~~. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Transaction Support Agreement (Sinclair Broadcast Group Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to the satisfaction~~ following conditions precedent have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~8.01): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) If Since December 31, 2022, there shall not have occurred any event or condition that has had or would be reasonably expected to have, either individually or in the ~~Shire Acquisition is effected~~ aggregate, a Material Adverse Effect. (c) All fees due to the Administrative Agent, the Arrangers and the Lenders shall have been paid, and all expenses of the Administrative Agent and the Arrangers that are required to be paid or reimbursed by ~~way of a Scheme~~the Borrower and that have been invoiced at least three Business Days prior to the Closing Date shall have been so paid or reimbursed. (d) On the Closing Date, the following statements shall be true and the Administrative Agent shall have ~~received~~received a certificate of the Borrower, dated the Closing Date, stating that: (i) ~~a certificate~~ Each of the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ representations and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition~~ warranties set forth in ~~clauses~~ Section 4.01 are true and correct in all material respects (~~d), (e) (~~except to the extent ~~relating to the Scheme~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties are true and correct in all respects), ~~(f)~~ on and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy~~ as of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent any such ~~changes thereto have been required pursuant~~ representation or warranty is stated to ~~the City Code~~ relate solely to an earlier date, in which case such representation or ~~required by the Panel or~~ warranty was true and correct in all material respects (except to the extent ~~not prohibited by the Loan Documents~~such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties were true and correct in all respects) on and as of such earlier date; and (ii) No event has occurred and is continuing, or shall occur as a ~~copy~~ result of the ~~Scheme Circular which is consistent in~~ occurrence of the Closing Date, that constitutes a Default. (e) The Administrative Agent shall have received on or before the Closing Date, each dated on or about such date: (i) Certified copies of the resolutions or similar authorizing documentation of the governing body of the Borrower, and of all ~~material respects~~ documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (ii) A certificate of the ~~terms~~ Secretary or an Assistant Secretary of the Borrower certifying the names and ~~conditions in~~ true signatures of the ~~Press Release~~ officers of the Borrower authorized to sign this Agreement and the ~~Scheme Resolutions~~other documents to be delivered by it hereunder; and (iii) A favorable opinion letter from (A) ▇▇▇▇▇▇▇ ▇▇▇▇, Divisional Vice President, Associate General Counsel and Assistant Secretary of the Borrower and (B) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, as New York special counsel to the Borrower (or, in each case, ~~except~~ such other counsel as may be reasonably acceptable to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (dAgent), ~~(e) (to~~ in each case, in the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded form agreed on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The ~~Administrative Agent~~ 2020 Credit Agreement shall have ~~received a Notice of Borrowing~~ been terminated in accordance with Section ~~2.02~~8.15. (g) ~~The~~ To the extent requested by a ▇▇▇▇▇▇, delivery of executed promissory notes. (h) To the extent requested by any Lender through the Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended in writing at least ~~45 days~~ 10 Business Days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided the documentation and other information to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~form or contents of~~ Patriot Act and the ~~Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction~~Beneficial Ownership Regulation, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately at least three Business Days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoClosing Date. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~such conditions precedent being satisfied (or waived in accordance with Section 8.01), and such notice shall be conclusive and ~~binding~~binding evidence of the occurrence thereof.

Appears in 1 contract

Sources: Credit Agreement (Abbott Laboratories)

Conditions Precedent to Closing Date. 70- USActive 55502425.1255502425.13 The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive nonconsolidation of the Borrower with the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) [reserved]; USActive 55502425.1255502425.13 (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ it that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (j) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (l) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gm) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (n) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (Blackstone Private Credit Fund)

Conditions Precedent to Closing Date. ~~The obligation of each Lender to make an Advance on the Closing Date is~~ Lender’s obligations hereunder shall be subject to the satisfaction ~~(or waiver in accordance with Section 9.01)~~ of the following ~~conditions:~~ conditions on or before the Closing Date: (a) ~~The Effective Date~~ Lender shall have ~~occurred.~~ received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and Liens upon the Collateral, subject only to the Liens permitted herein or in the other Financing Agreements; (b) If all requisite corporate action and proceedings in connection with this Agreement and the ~~Shire Acquisition~~ other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities; (c) no material adverse change shall have occurred in the assets, business or prospects of Borrower since the date of Lender’s latest field examination and no change or event shall have occurred which would impair the ability of Borrower or any Obligor to perform its obligations hereunder or under any of the other Financing Agreements to which it is ~~effected by way~~ a party or of Lender to enforce the Obligations or realize upon the Collateral; (d) Lender shall have completed a ~~Scheme~~field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Revolving Loans available to Borrower, the ~~Administrative Agent~~ results of which shall ~~have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ be satisfactory to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; Lender, within three (3) ~~as to~~ Business Days of the ~~satisfaction of each condition set forth in clauses (d),~~ Closing Date; (e) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements and certificates of insurance policies and/or endorsements naming Lender as loss payee on credit insurance and property policies (but only with respect to losses of the ~~extent relating to the Scheme~~Collateral), ; (f) ~~and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ Lender shall have received an opinion letter of ~~the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., special Louisiana counsel dated the Closing ~~Date~~Date and addressed to Lender, ~~except~~ in the form of Exhibit C hereto and the opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, special Tennessee counsel to Borrower, dated the ~~extent such changes thereto~~ Closing Date and addressed to Lender in the form attached hereto as Exhibit D; (g) Lender shall have ~~been required pursuant~~ received a certificate regarding the solvency of Borrower, in form and substance satisfactory to ~~the City Code or required~~ Lender, executed by the ~~Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release~~ president and the ~~Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court~~ chief financial officer of ~~competent jurisdiction or are not prohibited by the Loan Documents.~~ Borrower; (~~c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1~~h) the ~~date on which the Takeover Offer Document was posted to the shareholders of Shire; (2)~~ Excess Availability, as ~~to the satisfaction of each condition set forth in clauses (d)~~determined by Lender, (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence as of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more be not less than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer $20,000,000 after giving effect to the initial ~~purchase~~ Revolving Loans made or to be made and the Letter of ~~Shire Shares pursuant~~ Credit Accommodations issued or to be issued in connection with the ~~Takeover Offer~~initial transactions hereunder and the use of proceeds thereof and the payment of all fees and expenses associated with this transaction; Page 40 (i) Lender shall have received (i) on or before the Closing Date, ~~immediately after~~ a payoff letter to Lender in the ~~Company Merger~~form attached as Exhibit E from The Chase Manhattan Bank, ~~the holders~~ stating, upon satisfaction of ~~Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant~~ all Obligations to such ~~Takeover Offer~~ lender, it shall ~~own equity interests in AbbVie NewCo representing more than 20.0%~~ duly authorize, execute and deliver all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by the existing lender to Borrower of ~~both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the~~ its financing arrangements with Borrower and the ~~Lenders~~ termination and release by it, of any interest in and to any assets and properties of Borrower and each Obligor, including, but not limited to UCC termination statements for all UCC financing statements previously filed by it or its predecessors, as secured party and Borrower or any Obligor, as debtor and (ii) prior to Lender making the ~~Closing Date~~ initial Revolving Loans and providing the initial Letter of Credit Accommodations, acknowledgement from The Chase Manhattan Bank, stating that all amounts owing by Borrower to The Chase Manhattan Bank, as ~~soon as practicable upon its occurrence,~~ set forth in the payoff letter referred to in clause (i) above have been satisfied and ~~such notice shall be conclusive~~ it has released and ~~binding.~~terminated all financing arrangements and Liens with Borrower;

Appears in 1 contract

Sources: Loan and Security Agreement (Bayou Steel Corp)

Conditions Precedent to Closing Date. The ~~obligation of each Lender to make an Advance~~ Closing Date shall occur on the ~~Closing Date is subject to~~ date that each of the ~~satisfaction~~ following conditions shall have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~9.05): (a) ~~The~~ the Effective Date shall have occurred.; (b) If receipt by the ~~Shire Acquisition is effected by way~~ Agent of a ~~Scheme~~certificate, dated the ~~Administrative Agent shall have received:~~ Closing Date and signed by a duly authorized officer of the Company, certifying that (i) ~~a certificate~~ the Acquisition Closing Date shall have occurred, (ii) immediately before and after the Closing Date, no Default shall have occurred and be continuing and (iii) the representations and warranties of the ~~Borrower signed by a director certifying: (1)~~ Company contained in this Agreement shall be true on and as of the ~~date on which the Scheme Circular was posted to the shareholders of Shire~~Closing Date; (2c) receipt by the ~~date on which~~ Agent of all documents the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ Agent may reasonably request relating to the ~~Registrar in accordance with Article 125(3)~~ existence and good standing of the ~~Jersey Companies Law~~Company, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Agent; (3d) as receipt by the Agent of evidence reasonably satisfactory to it that the ~~satisfaction~~ entire principal amount of ~~each condition set forth~~ any loans outstanding under, and all accrued interest, fees and all other amounts under, the Existing Credit Agreement shall have been paid in ~~clauses (d),~~ full and all commitments thereunder shall have been terminated; (e) (receipt by the Agent and the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Commitment Letter or the Fee Letters, including to the extent ~~relating~~ invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the ~~Scheme), (f) and (i) (to the extent relating to the Scheme) below~~Company hereunder or thereunder; and (4f) ~~each copy~~ receipt by the Agent of (i) an opinion of the ~~documents specified in paragraphs~~ General Counsel of the Company, covering such matters as the Agent may reasonably request and (ii) an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Company, covering such matters as the Agent may reasonably request. The Agent shall promptly notify the Company and ~~(iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Banks of the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and ~~binding~~binding on all parties hereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwell Collins Inc)

Conditions Precedent to Closing Date. The obligation of each Lender ~~to make an Advance~~ on the Closing Date is to make any Loan requested to be made by it shall be subject to the satisfaction ~~(or waiver in accordance with Section 9.01)~~ of all of the following ~~conditions~~conditions precedent: (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received on or before the Closing Date from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) customary written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the~~ The Administrative Agent (or its counsel) shall have ~~received: (i) a certificate~~ received on or before the Closing Date all Loan Documents and agreements, documents and instruments described in the List of Closing Documents attached hereto as Exhibit E hereto, each signed on behalf of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentsparties thereto. (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received:~~ Except (~~i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2~~a) as ~~to the satisfaction of each condition~~ set forth in ~~clauses~~ the Glimcher Disclosure Letter (das defined in the Merger Agreement), or (eb) as disclosed in publicly available Glimcher SEC Filings (as defined in the Merger Agreement), filed with, or furnished to, as applicable, the Commission on or after January 1, 2013 and prior to the ~~extent relating to~~ date of the ~~Takeover Offer~~Merger Agreement (excluding any risk factor disclosures contained in such documents under the heading “Risk Factors” and any disclosure of risks or other matters included in any “forward-looking statements” disclaimer or other statements that are cautionary, predictive or forward-looking in nature), ~~(f)~~ between December 31, 2013 and ~~(i) (to~~ the ~~extent relating to the Takeover Offer) below; (3) each copy~~ date of the ~~documents specified~~ Merger Agreement, except as contemplated by the Merger Agreement or as set forth in ~~paragraph~~ Section 4.8 of the Glimcher Disclosure Letter (~~ii) below is correct and complete and~~ as defined in the Merger Agreement), there has not been ~~amended~~ any effect, event, development or ~~superseded on~~ circumstance that, individually or ~~prior~~ in the aggregate with all other effects, events, developments and changes, would reasonably be expected to result in a Glimcher Material Adverse Effect (as defined in the ~~Closing Date~~Merger Agreement). Since the date of the Merger Agreement, ~~except to the extent such changes thereto~~ there shall not have been ~~required pursuant to the City Code~~ any event, circumstance, change, occurrence, development or ~~required by the Panel~~ effect that, individually or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the ~~Offer Press Announcement~~aggregate, ~~except~~ has had or would reasonably be expected to ~~the extent changes thereto~~ have ~~been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents~~a Glimcher Material Adverse Effect. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire The Acquisition ~~is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger~~ shall have ~~been,~~ been or ~~substantially concurrently with the occurrence of the Closing Date~~ shall be, ~~consummated in the case of the Shire Acquisition in all material respects in accordance~~ substantially simultaneously with the ~~terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being~~ initial Borrowings, consummated ~~no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional~~ in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo Merger Agreement (~~as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case,~~ without giving effect to ~~(and there shall not have been)~~ any amendments, modifications, ~~amendments~~supplements, ~~consents~~waivers or consents after September 16, ~~requests or waivers~~ 2014 by the ~~Borrower~~ Company (including any change in the definition of Glimcher Material Adverse Effect or ~~its applicable affiliate~~Sections 9.7, 9.11(c), 9.12 and 9.14 of the Merger Agreement or in the purchase price (excluding any adjustments provided for in the Merger Agreement)) ~~thereunder~~ that are materially adverse to the interests of the ~~Lenders~~Lenders (in their capacities as such) and not approved by the Lead Arranger (which approval shall not be unreasonably withheld, ~~without the prior written consent of~~ conditioned or delayed)). (e) The Company shall have delivered to the Administrative ~~Agent, except, in each case,~~ Agent a certificate as to the ~~extent such modifications~~financial condition and solvency of Borrower and its subsidiaries (on a consolidated basis, ~~amendments, consents, requests or waivers have been required pursuant~~ after giving effect to the ~~City Code or~~ Transaction), substantially in the ~~Panel or are not prohibited by the Loan Documents~~form attached as Exhibit I hereto. (f) All fees ~~and other amounts~~ due and payable ~~by the Borrower, AbbVie and their Subsidiaries~~ to the ~~Arranger~~Administrative Agent, the ~~Administrative Agent~~ Lead Arranger and the Lenders ~~under the Loan Documents or~~ pursuant to ~~any fee or similar letters relating to~~ the ~~Loan Documents shall be paid~~Fee Letter and, to the extent invoiced at least ~~one~~ two Business ~~Day~~ Days prior to the Closing Date, all reasonable and documented expenses to be paid or reimbursed to the Administrative Agent and the Lead Arranger on or prior to the Closing Date pursuant to the Commitment Letter, shall have been paid or shall be paid from the proceeds of the Loans. (g) To the extent requested at least seven Business Days prior to the Closing Date by the ~~relevant person~~ Lead Arranger, the Borrower shall have delivered the documentation and other information with respect to the ~~extent such amounts~~ Borrower to the Administrative Agent that are ~~payable on or~~ required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, prior to the Closing Date. . (h) The ~~Administrative Agent~~ Lead Arranger shall have received ~~a Notice of Borrowing in accordance with Section 2.02.~~ (g1) ~~The Administrative Agent shall have received a pro forma~~ audited consolidated balance ~~sheet~~ sheets and related ~~pro forma consolidated statement~~ statements of income ~~of AbbVie NewCo~~ and ~~its Subsidiaries as of and for the twelve-month period ending on the last day~~ cash flows of the Acquired Business for its most ~~recently completed four-~~recent two fiscal ~~quarter period~~ years ended at least 45 90 days prior to the Closing ~~Date, prepared~~ Date and (2) unaudited consolidated balance sheets and related statements of income and cash flows of the Acquired Business for each of its fiscal quarters ended after ~~giving effect~~ the close of its most recent fiscal year and at least 75 days prior to the ~~Transactions as if~~ Closing Date (but excluding the ~~Transactions had occurred as~~ fourth quarter of ~~such date~~ any fiscal year). The 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 (~~in the case of such balance sheet~~1) or ~~at the beginning~~ (2) as applicable, of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereofthis paragraph. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer The Specified Representations shall ~~own equity interests~~ be true and correct in ~~AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders~~ all material respects as of the Closing ~~Date as soon as practicable upon its occurrence, and such notice~~ Date. (j) The Merger Agreement Representations shall be ~~conclusive~~ true and ~~binding~~correct in all respects as of the Closing Date.

Appears in 1 contract

Sources: 364 Day Bridge Term Loan Agreement (Washington Prime Group Inc.)

Conditions Precedent to Closing Date. The occurrence of the Closing Date, and the obligation of ~~each Lender~~ the Bank to ~~make an Advance on the Closing Date~~ issue any LOC, is subject to the satisfaction (or waiver in accordance with Section ~~9.01~~7.01) of the following ~~conditions~~conditions precedent: (a) The ~~Effective Date~~ Bank shall have ~~occurred~~received from each party hereto or thereto either (i) a counterpart of this Agreement, the Parent Guaranty and the Credit Support Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Bank (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and the Parent Guaranty. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The Bank shall have ~~received:~~ received from the Company a signed certificate, dated as of the Closing Date and signed by a Responsible Officer of the Company on behalf of the Company, certifying as to (i) ~~a certificate~~ the truth in all material respects of the ~~Borrower signed by a director certifying:~~representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (ii) the absence of any Event of Default. (1c) ~~the date on which the Scheme Circular was posted~~ The Bank shall have received documents and certificates relating to the ~~shareholders~~ organization, existence, and good standing of ~~Shire; (2)~~ each Credit Party, and the ~~date on which~~ authorization of the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ transactions contemplated hereby, all in form reasonably satisfactory to the ~~Registrar in accordance with Article 125(3~~Bank, including (i) certified copies of the resolutions (or comparable evidence of authority) of each Credit Party approving the ~~Jersey Companies Law;~~ transactions contemplated by the Loan Documents, (3ii) a certification as to the ~~satisfaction~~ names and true signatures of the officers of each ~~condition set forth in clauses (d)~~Credit Party that are authorized to sign the Loan Documents and the other documents to be delivered hereunder, ~~(e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii)~~ and (iii) ~~below is correct~~ an electronic instruction document authorizing the Bank to act upon instructions received from such Credit Party by facsimile or electronic mail. (d) The Bank shall have received a written opinion (addressed to the Bank and ~~complete~~ dated the Closing Date) of counsel to the Company covering the matters set forth in Exhibit C-1 and of in-house counsel to the Parent Guarantor covering the matters set forth in Exhibit C-2, in each case in form and substance reasonably satisfactory to the Bank. Each of the Company and the Parent Guarantor hereby requests such counsel to deliver such opinion, which may be delivered by electronic transmission to the Bank with the signed original(s) to follow within ten (10) days after the Closing Date. (e) The Bank shall have received evidence, reasonably satisfactory to it, that the Existing Facility has ~~not~~ been ~~amended or superseded~~ terminated on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentsdate hereof. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Letter of Credit Facility Agreement (Sunpower Corp)

Conditions Precedent to Closing Date. The ~~obligation~~ effectiveness of ~~each Lender to make an Advance on the Closing Date~~ this Agreement is subject to ~~the satisfaction (or waiver in accordance with Section 9.01)~~ each of the following ~~conditions~~conditions precedent and no Loan shall be made hereunder unless each of the following is satisfied (as reasonably determined by the Bank) or waived by the Bank: (a) The ~~Effective Date~~ Borrower will have duly executed and delivered or caused to have been delivered each of the following: (1) This Agreement and the other Loan Documents, together with all Exhibits and Schedules thereto; (2) The Note; (3) Opinion letter(s) of counsel to the Borrower reasonably satisfactory to the Bank; (4) (a) copies of the Operative Documents, and (b) a copy of the Borrower’s resolutions adopted authorizing the execution, delivery and performance of the Loan Documents; (5) The certificate of incorporation for the Borrower, certified as true and correct by the applicable regulatory authority; (6) A good standing certificate (or comparable certificate) from the applicable jurisdiction of organization for the Borrower; (7) A Closing Certificate in form reasonably satisfactory to the Bank; (8) A Borrowing Base Certificate; (9) For each Investor, its duly executed and delivered Subscription Agreement and, to the extent applicable, Side Letter; (10) All documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including AML Legislation, the Act and OFAC; (11) A copy of each of the Advisory Agreement, the Administration Agreement, and the License Agreement; and (12) Such other information and documents as may reasonably be required by the Bank and its counsel. In addition, the Bank shall have ~~occurred~~completed to its reasonable satisfaction its due diligence review of the Borrower and its management, controlling owners, systems and operations. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The following shall have ~~received: (i) a certificate of the Borrower signed by a director certifying~~occurred: (1) The Bank shall have received copies of UCC search reports dated such a date as is reasonably satisfactory to the Bank, listing all effective financing statements filed against the Borrower with copies of such financing statements. (2) The Bank shall have received all fees and expenses due and owing to Bank under this Agreement and the other Loan Documents prior to the date ~~on which the Scheme Circular was posted~~ hereof and, to the ~~shareholders~~ extent invoiced, reimbursement or payment of ~~Shire~~all expenses required to be reimbursed or paid by the Borrower hereunder, including the fees and disbursements invoiced through the date hereof of the Bank’s special counsel, ▇▇▇▇▇ ▇▇▇▇▇ LLP. (3) The representations and warranties set forth in Section 7 of this Agreement and each other Loan Document shall be true and correct as of the date hereof. (c) The following shall not have occurred: (1) Any material adverse change in the Bank’s understanding of the facts and information presented to it, or any material litigation or claims shall have been filed with respect to the Borrower; (2) ~~the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~Any Material Adverse Effect; or (3) ~~as to the satisfaction~~ Any Event of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan DocumentsDefault. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Revolving Loan Agreement

Conditions Precedent to Closing Date. ~~The obligation of each Lender to make an Advance on the Closing Date is subject~~ In addition to the ~~satisfaction~~ conditions set forth in Section 6.2, Lenders shall not be required to fund any requested Loan, issue any Letter of Credit, or otherwise extend credit to Borrowers hereunder, until the date (~~or waiver in accordance with Section 9.01~~“Closing Date”) that each of the following ~~conditions~~conditions has been satisfied: (a) ~~The Effective Date~~ As required by Agent to be executed as of the Closing Date, each Loan Document shall have ~~occurred~~been duly executed and delivered to Agent by each of the signatories thereto. (b) If All filings or recordations necessary to perfect the ~~Shire Acquisition is effected by way of a Scheme~~Agent’s Liens in the Collateral (other than any such filings to occur after the Closing Date in accordance with the terms hereof) shall have been made, ~~the Administrative~~ and Agent shall have ~~received:~~received UCC and Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens. (c) Parent shall have consummated a Qualified IPO which results in gross proceeds to Parent of at least $90,000,000 and, in any event, in an amount sufficient to provide for the payment in full of all fees, costs and expenses incurred in respect of the Qualified IPO and the closing of this credit facility. (d) Agent shall have received a duly executed Deposit Account Control Agreement for each of Obligor’s Deposit Accounts (other than Excluded Accounts) in existence on the Closing Date, to the extent requested by the Agent. (e) Agent shall have received certificates, in form and substance satisfactory to it, from a knowledgeable Senior Officer of Parent certifying on behalf of each Borrower that, after giving effect to the initial Loans and transactions hereunder, (i) ~~a certificate of the~~ such Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) belowis Solvent; ~~and (4) each copy of the documents specified in paragraphs~~ (ii) no Default or Event of Default exists; and (iii) ~~below is~~ the representations and warranties set forth in Section 9 are true and correct ~~and complete and has not been amended or superseded on or prior to~~ in all material respects as of the Closing Date, except to the extent such ~~changes thereto~~ representations and warranties refer to a specified date, in which case the same shall continue on the Closing Date to be true and correct as of the applicable specified date (or, in the event such representations and warranties are qualified by materiality or Material Adverse Effect or language of similar import, such representations shall be true and correct in all respects as of the Closing Date). (f) Agent shall have ~~been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~received a certificate of a duly authorized officer of each Obligor, certifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; ~~and~~ (ii) a that an attached copy of resolutions authorizing execution and delivery of the ~~Scheme Circular which~~ Loan Documents is ~~consistent~~ true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all ~~material respects~~ resolutions adopted with respect to this credit facility; and (iii) to the ~~terms~~ title, name and ~~conditions~~ signature of each Person authorized to sign the Loan Documents on behalf of such Obligor. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (g) Agent shall have received a written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the ~~Press Release~~ Obligors and (ii) McAfee & ▇▇▇▇, Oklahoma counsel to the ~~Scheme Resolutions~~Obligors, in each case, ~~except~~ in form and substance satisfactory to Agent in its Permitted Discretion. (h) Agent shall have received copies of the ~~extent changes thereto have been required pursuant to the City Code or required~~ charter documents of each Obligor, certified by the ~~Panel~~ Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by ~~a court~~ the Secretary of ~~competent~~ State or other appropriate official of such Obligor’s jurisdiction ~~or are not prohibited~~ of organization. (i) Agent shall have received certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents. (cj) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative~~ Agent shall have ~~received: (i)~~ completed its business, financial and legal due diligence of Obligors, including a ~~certificate~~ roll-forward of its previous field examination, with results satisfactory to Agent. No material adverse change in the ~~Borrower signed by a director certifying: (1)~~ financial condition of any Obligor or in the ~~date on which the Takeover Offer Document was posted to the shareholders~~ quality, quantity or value of ~~Shire; (2) as to the satisfaction of each condition set forth in clauses (d)~~any Collateral shall have occurred since December 31, (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents2016. (iik) ~~a copy of the Takeover Offer Document which is consistent in~~ Borrowers shall have paid all ~~material respects with the terms~~ fees and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is expenses to be ~~implemented by way of a Scheme, each of the Shire Acquisition~~ paid to Agent and ~~the Company Merger shall have been, or substantially concurrently with the occurrence of~~ Lenders on the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one (1) Business Day prior to thereto. (l) The Existing PIK Notes shall have been, or shall simultaneously be, repaid, terminated or converted; provided that the ~~Closing Date by~~ amounts thereof payable in cash shall not exceed $13,000,000, and all other existing Debt for Borrowed Money of the ~~relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative~~ Obligors shall have been paid in full. (m) Agent shall have received a ~~Notice of~~ Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries Base Report prepared as of ~~and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date~~January 31, ~~prepared after~~ 2018. Upon giving effect to the ~~Transactions as if the Transactions had occurred as of such date (~~Qualified IPO referenced in ~~the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”~~Section 6.1(c), ~~it being acknowledged that neither~~ the ~~Administrative Agent nor any Lender shall have any approval right as regards the form or contents~~ calculation of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) ~~After giving effect~~ Availability, less (ii) an amount equal to ~~the consummation~~ all amounts due and owing to any of ~~the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately~~ Borrowers’ trade creditors which are outstanding more than thirty (30) days after the ~~Company Merger~~original invoice date, ~~the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer~~ shall ~~own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo~~be at least $50,000,000. The ~~Administrative~~ Agent shall notify the Borrower Agent and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Loan, Security and Guaranty Agreement (Quintana Energy Services Inc.)

Conditions Precedent to Closing Date. The ~~obligation~~ obligations of the parties hereto to enter into the transactions contemplated by this Agreement and the other Transaction Documents and to take the actions to be taken by each ~~Lender~~ such party which are contemplated by Section 2.1 to ~~make an Advance~~ occur on the Closing Date is shall be subject to ~~the~~ satisfaction (or waiver as of the Closing Date of the following conditions precedent (provided, that the obligations of any party shall not be subject to any conditions contained in this Section 3.2 which are required to be performed or caused to be performed by such party or any of its respective Affiliates): (a) Each Certificate Purchaser shall have funded the Advance to be made by it on the Closing Date in accordance with Section ~~9.01) of the following conditions: (a) The Effective Date shall have occurred~~2.3. (b) If Each Certificate Purchaser shall have received its respective Certificates in accordance with Section 2.4. (c) Deepwater shall have given the ~~Shire Acquisition is effected by way~~ Agent not less than three (3) Business Days prior written notice of the Closing Date, which notice may be included in the Advance Request delivered in accordance with Section 2.3 and each Certificate Purchaser shall have received a ~~Scheme~~funding indemnity letter from R&B Falcon and Conoco in the form of Exhibit A hereto not less than three (3) Business Days prior to the Closing Date. (d) All parties thereto shall have executed and delivered each of the Transaction Documents to be entered into on the Closing Date, as indicated on Schedule 1 hereto. (e) Deepwater shall have delivered to the Charter Trustee (with copies for each Certificate Purchaser) copies of the Services Agreements, the ~~Administrative~~ Construction Contract, the Drilling Contracts, and the Drilling Contract Guaranties, copies of all purchase orders and other documents relating to the purchase of the OFE, together with any amendments thereto, in each case certified by an authorized representative of Deepwater to be true, complete and correct copies thereof as of the Closing Date and each of the Services Agreements, the Construction Contract, the Drilling Contracts and the Drilling Contract Guaranties shall be in full force and effect and no default or material breach shall exist thereunder. (f) The Documentation Agent and each Certificate Purchaser shall have ~~received:~~received the Appraisal in form and substance satisfactory to the Documentation Agent and Deepwater shall have received a copy thereof. (g) All Taxes, fees and other charges due in connection with the execution, delivery, performance, recording, filing and registration of the Transaction Documents on the Closing Date shall have been paid. (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ White & Case LLP, special counsel to Deepwater, shall have issued its opinion to the ~~shareholders of Shire; (2)~~ effect and in the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition form set forth in ~~clauses~~ Exhibit B; (d)ii) Wayne K. Anderson, ~~(e) (~~in-house counsel to Conoco, shall have deli▇▇▇▇▇ ▇▇s opinion to the ~~extent relating~~ effect and in the form set forth in Exhibit D; (iii) Wayne K. Hillin, counsel to R&B Falcon, shall have delivered h▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇he effect and in the form set forth in Exhibit E; (iv) Arias, Fabrega & Fabrega, Panamanian counsel, shall have deliv▇▇▇▇ its opinion to the ~~Scheme)~~effect and in the form set forth in Exhibit P; and (v) Cynthia L. Corliss, ~~(f)~~ Vice President and Trust Counsel of Wilmin▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, and Richards, Layton & Finger, counsel to the Charter Trustee and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, shall have delivered their opinions to the effect and in the form set forth in Exhibit U. (i) (All actions required to ~~the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not~~ have been ~~amended or superseded~~ taken by any Government Authority on or prior to the Closing ~~Date, except to~~ Date in connection with the ~~extent such changes thereto~~ transactions contemplated by this Participation Agreement and the other Transaction Documents shall have been taken and all Government Actions required ~~pursuant~~ to ~~the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent~~ be in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded effect on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional Date in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects connection with the ~~terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required~~ transactions contemplated by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition this Participation Agreement and the ~~Company Merger~~ other Transaction Documents shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued or made, and ~~the former Shire shareholders have been registered as the owner of~~ all such ~~shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger~~ Government Actions shall be ~~consummated,~~ in ~~each case, without giving~~ full force and effect ~~to (and there shall not have been) any modifications, amendments,~~ on the Closing Date. All necessary consents, ~~requests or waivers by~~ approvals and authorizations of all non-Government Authorities required on the ~~Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests~~ part of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the ArrangerDeepwater, the ~~Administrative Agent and~~ Investment Trust, the ~~Lenders under the Loan Documents~~ Trustees or ~~pursuant~~ third parties to ~~any fee~~ be obtained, given or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable made on or prior to the Closing ~~Date. The Administrative Agent~~ Date in connection with the execution and delivery of the Transaction Documents and transactions contemplated hereby and thereby shall have ~~received a Notice of Borrowing~~ been obtained, given or made and shall be in ~~accordance with Section 2.02~~full force and effect. (gj) ~~The Administrative Agent~~ No action shall have ~~received~~ been instituted, nor shall any action or proceeding be threatened, before any Government Authority, nor shall any order, judgment or decree have been issued or proposed to be issued by any Government Authority (i) to set aside, restrain, enjoin or prevent the performance of this Participation Agreement, any other Transaction Document or any transaction contemplated hereby or thereby or (ii) which would have a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Material Adverse Effect. (hk) It The transactions contemplated by the Transaction Documents do not and will not (i) violate any Applicable Law, (ii) contravene any charter, by-laws or other organizational document of Deepwater, the Members, Conoco, R&B Falcon, the Investment Trust, the Trustees, the Agent or any Certificate Purchaser, (iii) contravene any contract, agreement or other arrangement to which Deepwater, the Investment Trust, the Trustees, the Agent or any Certificate Purchaser is a party or by which any of their respective properties or assets are bound, or (iv) subject Deepwater, any Member, the Investment Trust, the Trustees, the Agent or any Certificate Purchaser to any regulations to which such party had not ~~illegal for any Lender~~ been subject prior to ~~lend~~ entering into such Transaction Documents and ~~there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof~~which would be materially adverse to such party. (il) ~~After giving effect~~ Deepwater, each Member, Conoco and R&B Falcon shall have each delivered, or shall have caused to be delivered, to the ~~consummation of~~ Agent, and the ~~Scheme~~Trustees the following, ~~or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect~~ in each case in form and substance satisfactory to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Documentation Agent ~~shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.~~(with copies for each Certificate Purchaser):

Appears in 1 contract

Sources: Participation Agreement (R&b Falcon Corp)

Conditions Precedent to Closing Date. ~~The~~ 4.01 Conditions to Effectiveness of this Agreement (Closing Date). This Agreement shall be effective upon satisfaction of the conditions precedent set forth in this Section 4.01; provided that the obligation of each Lender to make ~~an Advance on the Closing Date~~ its initial Credit Extension hereunder is subject to ~~the~~ satisfaction (or waiver ~~in accordance with Section 9.01)~~ of the ~~following conditions~~conditions precedent set forth in Section 4.02: (a) The ~~Effective~~ Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or the Guarantors, as applicable, each dated the Closing Date ~~shall have occurred.~~ (bor, in the case of certificates of governmental officials, a recent date before the Closing Date) ~~If the Shire Acquisition is effected by way of a Scheme,~~ and each in form and substance reasonably satisfactory to the Administrative ~~Agent shall have received~~Agent: (i) this Agreement, executed by the Borrower, the Administrative Agent, the Swing Line Lenders, the L/C Issuers, and the Lenders; (ii) a Note executed by the Borrower in favor of each Lender requesting a Note; (iii) the Guaranty Agreement executed by the Initial Guarantors; (iv) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; (v) a certificate of a secretary or assistant secretary of each Loan Party or its general partner (attaching resolutions and incumbency certificates as the Administrative Agent may reasonably require) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; (vi) a certificate as to the good standing (or such other customary functionally equivalent certificate) of each Loan Party and the general partner of each Loan Party from the Secretary of State (or other applicable Governmental Authority) of its jurisdiction of organization; (vii) a favorable opinion from each of the following counsel to the Loan Parties, (A) with respect to certain matters of New York and Delaware law: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and (B) with respect to certain matters of Oklahoma law: ▇▇▇▇▇ & ▇▇▇▇▇▇▇, a professional corporation, each addressed to the Administrative Agent, the L/C Issuers and each Lender as of the Closing Date, reasonably satisfactory to the Administrative Agent and the Arrangers; (viii) a certificate signed by a ~~director certifying:~~ Responsible Officer of the Borrower certifying (1A) ~~the date on which the Scheme Circular was posted to the shareholders of Shire;~~ that no Default exists, (2B) ~~the date on which the Court has sanctioned the Scheme and~~ that the ~~Court Order has been duly delivered to the Registrar in accordance with Article 125(3)~~ representations and warranties of the ~~Jersey Companies Law; (3) as to the satisfaction of each condition set forth~~ Borrower contained in ~~clauses (d), (e) (to the extent relating to the Scheme), (f)~~ Article V are true and ~~(i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified~~ correct in ~~paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date~~all material respects, except to the extent that such ~~changes thereto have been required pursuant~~ representations and warranties specifically refer to ~~the City Code or required by the Panel or~~ an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, except that such materiality qualifier shall not apply to the extent ~~not prohibited~~ that any such representation or warranty is qualified by materiality, (C) that there has been no event or circumstance since the ~~Loan Documents~~date of the Audited Financial Statements that has had or could be reasonably expected to have a Material Adverse Effect, and (D) as to the Debt Ratings of the Borrower; and (iib) ~~a copy of~~ Any fees and expenses required to be paid by the ~~Scheme Circular which is consistent in all material respects with~~ Borrower on or before the ~~terms~~ Closing Date shall have been paid, including upfront fees payable to Lenders and ~~conditions in~~ reasonable fees and expenses payable to the ~~Press Release~~ Arrangers and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan DocumentsAdministrative Agent. (c) ~~If the Shire Acquisition is effected by way~~ The Borrower shall have paid all Attorney Costs (related to ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP) of ~~a Takeover Offer,~~ the Administrative Agent ~~shall have received: (i) a certificate of~~ and the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (Left Lead Arranger to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or invoiced prior to or on the Closing Date, ~~except~~ plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs (related to ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP) incurred or to be incurred by it through the ~~extent~~ closing proceedings (provided that such ~~changes thereto have been required pursuant to~~ estimate shall not thereafter preclude a final settling of accounts between the ~~City Code or required by~~ Borrower and the ~~Panel or are not prohibited by~~ Administrative Agent and the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan DocumentsLeft Lead Arranger). (d) On Upon the ~~date~~ request of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being any Lender made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 ten days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided to such Lender (i) the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the ~~Transactions~~ Closing Date, and (ii) a Beneficial Ownership Certification in relation to the Borrower to the extent the Borrower qualifies as if a “legal entity customer” under the ~~Transactions had occurred as~~ Beneficial Ownership Regulation. Without limiting the generality of ~~such date (~~the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in ~~the case of such balance sheet)~~ this Section 4.01, each Lender shall be deemed to have consented to, approved or ~~at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”)~~accepted or to be satisfied with, ~~it being acknowledged that neither~~ each document or other matter required under this Section 4.01 to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent ~~nor any Lender~~ shall have ~~any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any~~ received notice from such Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoproposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the ~~Borrower~~ Lenders and the ~~Lenders~~ Borrower of the Closing ~~Date as soon as practicable upon its occurrence, and such~~ Date. Such notice shall be ~~conclusive~~ binding and ~~binding~~conclusive.

Appears in 1 contract

Sources: Credit Agreement (Oneok Inc /New/)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party and (vi) a recent certificate of good standing relating to it; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) reserved; (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ it that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (j) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ applicable Unfunded Reserve Account; (k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (l) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gm) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the applicable Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (n) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customers” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (Diameter Credit Co)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of ~~each Lender to make an Advance on~~ the Closing Date is and the obligations of the Lenders to extend credit after the Closing Date shall be subject to the ~~satisfaction (~~prior or concurrent fulfillment or waiver ~~in accordance with Section 9.01)~~ of the following ~~conditions~~conditions precedent: (a) ~~The Effective Date~~ each Obligor shall have ~~occurred.~~duly executed and delivered to the Administrative Agent this Agreement; (b) ~~If the Shire Acquisition is effected by way of a Scheme,~~ the Administrative Agent ~~shall have~~ has received: (i) a certificate of a senior officer of the ~~Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ Borrower, in such capacity, certifying that, to the ~~shareholders~~ best of ~~Shire; (2) the date on which the Court~~ his knowledge after due inquiry, no Default has ~~sanctioned the Scheme~~ occurred and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is ~~correct and complete and has not been amended~~ continuing or ~~superseded on or prior to~~ would arise immediately upon the Closing Date~~, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~; and (ii) ~~a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except~~ to the extent ~~changes thereto have been required~~ not delivered pursuant to the ~~City Code or required by~~ Disclosure Certificate dated July 12, 2021, certified true copies of the ~~Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents.~~Material Agreements; (c) If except as disclosed in Schedule S, there shall exist no pending or threatened (in writing to an Obligor) litigation, proceedings or investigations which (i) contests the ~~Shire Acquisition is effected by way~~ consummation of the Closing Date or any part thereof or (ii) could reasonably be expected to have a ~~Takeover Offer,~~ Material Adverse Effect; (d) the Administrative Agent and its counsel shall be satisfied, acting reasonably, that all necessary approvals, acknowledgements, directions and consents have ~~received: (i) a certificate~~ been given and that all relevant laws have been complied with in respect of ~~the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted~~ all agreements and transactions referred to ~~the shareholders of Shire~~in this Agreement; (2e) as the Borrower shall have paid to the ~~satisfaction~~ Administrative Agent (on its own behalf and on behalf of each ~~condition set forth in clauses (d), (e~~other Lender) (all reasonable and documented fees and expenses required to be paid under this Agreement and under the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan DocumentsFee Letter; and (4f) ~~that~~ the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger Borrower shall have ~~been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in~~ paid all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent reasonable invoiced fees of the Administrative Agent~~, except, in each case,~~ ’s professional advisors required to ~~the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents~~be paid under this Agreement. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Revolving Credit Facility (Gatos Silver, Inc.)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Servicer and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a ~~certificate~~ party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the ~~Borrower signed by a director certifying:~~ Closing Date (~~1) the date on which the Scheme Circular was posted~~ except to the ~~shareholders~~ extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of ~~Shire;~~ such earlier date), (2iv) ~~the date on which the Court~~ that no Default or Event of Default has ~~sanctioned the Scheme~~ occurred and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~ is continuing, and (3v) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d),~~ of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Servicer and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Loans from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (h) evidence reasonably satisfactory to it that (i) all fees (to the extent ~~relating~~ invoiced at least two (2) Business Days prior to the ~~Scheme), (f~~Closing Date) and ~~(i) (~~expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Document Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (i) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (j) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (k) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gl) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (m) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (SLR Private Credit BDC II LLC)

Conditions Precedent to Closing Date. The ~~obligation~~ effectiveness of ~~each Lender to make an Advance on the Closing Date~~ this Agreement is subject to ~~the satisfaction (or waiver in accordance with Section 9.01)~~ each of the following ~~conditions~~conditions precedent and no Loan shall be made hereunder unless each of the following is satisfied (as reasonably determined by the Bank) or waived by the Bank: (a) The ~~Effective Date~~ Borrower will have duly executed and delivered or caused to have been delivered each of the following: (1) This Agreement and the other Loan Documents, together with all Exhibits and Schedules thereto; (2) The Note; (3) Opinion letter(s) of counsel to the Borrower reasonably satisfactory to the Bank; (4) (a) copies of the Operative Documents, and (b) a copy of the Borrower’s resolutions adopted authorizing the execution, delivery and performance of the Loan Documents; (5) The certificate of incorporation for the Borrower, certified as true and correct by the applicable regulatory authority; (6) A good standing certificate (or comparable certificate) from the applicable jurisdiction of organization for the Borrower; (7) A Closing Certificate in form reasonably satisfactory to the Bank; (8) A Borrowing Base Certificate; (9) For each Investor, its duly executed and delivered Subscription Agreement and, to the extent applicable, Side Letter; (10) All documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including AML Legislation, the Act and OFAC; (11) A copy of each of the Advisory Agreement, the Administration Agreement, and the License Agreement; and (12) Such other information and documents as may reasonably be required by the Bank and its counsel. In addition, the Bank shall have ~~occurred~~completed to its reasonable satisfaction its due diligence review of the Borrower and its management, controlling owners, systems and operations. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The following shall have ~~received: (i) a certificate of the Borrower signed by a director certifying~~occurred: (1) The Bank shall have received copies of UCC search reports dated such a date as is reasonably satisfactory to the Bank, listing all effective financing statements filed against the Borrower with copies of such financing statements. (2) The Bank shall have received all fees and expenses due and owing to Bank under this Agreement and the other Loan Documents prior to the date ~~on which the Scheme Circular was posted~~ hereof and, to the ~~shareholders~~ extent invoiced, reimbursement or payment of ~~Shire~~all expenses required to be reimbursed or paid by the Borrower hereunder, including the fees and disbursements invoiced through the date hereof of the Bank’s special counsel, M▇▇▇▇ ▇▇▇▇▇ LLP. (3) The representations and warranties set forth in Section 7 of this Agreement and each other Loan Document shall be true and correct as of the date hereof. (c) The following shall not have occurred: (1) Any material adverse change in the Bank’s understanding of the facts and information presented to it, or any material litigation or claims shall have been filed with respect to the Borrower; (2) ~~the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~Any Material Adverse Effect; or (3) ~~as to the satisfaction~~ Any Event of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan DocumentsDefault. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Revolving Loan Agreement (Runway Growth Credit Fund Inc.)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement and the obligations of each Lender to make an its initial Advance and of each Issuing Bank to issue its initial Letter of Credit hereunder shall not become effective until the date on which each of the ~~Closing Date~~ following conditions precedent is ~~subject to the satisfaction (~~satisfied, or ~~waiver~~ waived in accordance with Section 9.01~~) of the following conditions~~: (a) ~~The Effective Date~~ This Agreement shall have ~~occurred~~been executed by the Administrative Agent and the London Agent, and the Administrative Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower and each Initial Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Agreement. (b) If The Holdco Guaranty Agreement shall have been executed by ▇▇▇▇▇ ▇▇▇▇▇ and the ~~Shire Acquisition is effected by way~~ Administrative Agent. (c) The Agents and the Lenders shall have received payment in full in cash of ~~a Scheme~~all fees and expenses due to them pursuant to the Commitment Letter, the ~~Administrative Agent shall have received: (i) a certificate of~~ JPM Fee Letter or the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded CoBank Fee Letter on or prior to the Closing ~~Date~~Date and, ~~except~~ in the case of expenses, to the extent ~~such changes thereto have been required pursuant~~ invoiced at least one day prior to the ~~City Code or~~ Closing Date. (d) The Lenders shall have received all documentation and other information required by ~~the Panel or~~ regulatory authorities with respect to the ~~extent not prohibited~~ Borrowers and ▇▇▇▇▇ ▇▇▇▇▇ under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. (e) On the Closing Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of ▇▇▇▇▇ ▇▇▇▇▇, dated the ~~Loan Documents;~~ Closing Date, stating that: (i) the representations and warranties contained in Section 4.01 are correct on and as of the Closing Date, and (ii) ~~a copy~~ no event has occurred and is continuing on and as of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code Closing Date that constitutes a Default or ~~required by the Panel or by a court~~ Event of ~~competent jurisdiction or are not prohibited by the Loan Documents~~Default. (cf) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the~~ The Administrative Agent shall have ~~received~~received on or before the Closing Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent: (i) ~~a certificate~~ Certified copies of the ~~Borrower signed by a director certifying: (1)~~ resolutions of the ~~date on which the Takeover Offer Document was posted to the shareholders~~ Board of ~~Shire; (2) as to the satisfaction~~ Directors of each ~~condition set forth~~ of ▇▇▇▇▇ ▇▇▇▇▇ and the Parent Borrower approving this Agreement and, in ~~clauses (d)~~the case of ▇▇▇▇▇ ▇▇▇▇▇, ~~(e) (~~the Holdco Guaranty Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan DocumentsHoldco Guaranty Agreement. (ii) ~~a copy~~ Certificates of the ~~Takeover Offer Document which is consistent in all material respects with~~ Secretary or an Assistant Secretary of each of ▇▇▇▇▇ ▇▇▇▇▇ and the ~~terms~~ Parent Borrower certifying the names and ~~conditions~~ true signatures of the officers thereof authorized to sign this Agreement and, in the ~~Offer Press Announcement~~case of ▇▇▇▇▇ ▇▇▇▇▇, ~~except~~ the Holdco Guaranty Agreement and certifying as to the ~~extent changes thereto have been required pursuant to~~ organizational documents, the ~~City Code or required by~~ resolutions and the ~~Panel or are permitted under~~ good standing of ▇▇▇▇▇ ▇▇▇▇▇ and the ~~Loan Documents~~Parent Borrower and other customary matters. (diii) On Opinions of (A) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel to ▇▇▇▇▇ ▇▇▇▇▇ and the ~~date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Parent Borrower, and (yB) ~~all~~ internal counsel for ▇▇▇▇▇ ▇▇▇▇▇, in each case reasonably satisfactory to the ~~Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects~~Administrative Agent. (eg) ~~Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company~~ The Merger Transactions shall have ~~been,~~ been (or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each ~~case,~~ case pursuant to and on the terms set forth in the Merger Agreement and without giving effect to ~~(and there shall not have been) any modifications,~~ amendments, ~~consents~~supplements, ~~requests~~ waivers or ~~waivers~~ other modifications to the Merger Agreement that are adverse in any material respect to the Lenders and that have not been approved by the Joint Lead Arrangers. The Parent Borrower shall be a wholly-owned Subsidiary of ▇▇▇▇▇ ▇▇▇▇▇. (~~or its applicable affiliate~~h) ~~thereunder that are materially adverse~~ All amounts under (i) the Five-Year Revolving Credit Agreement dated as of May 29, 2014, among Kraft Foods Group, JPMorgan Chase Bank, N.A. and Barclays Bank PLC, as administrative agents, the lenders party thereto and the other parties thereto, (ii) the Credit Agreement dated as of June 7, 2013, among ▇. ▇. ▇▇▇▇▇ Company, ▇.▇. ▇▇▇▇▇ Corporation II, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and the other parties thereto and (iii) 4.25% Second Lien Secured Notes due in 2020, issued under the Indenture, dated as of April 1, 2013, among ▇. ▇. ▇▇▇▇▇ Company, as the issuer, ▇.▇. ▇▇▇▇▇ Corporation II, as a guarantor, the other guarantors party thereto from time to ~~the interests of the Lenders~~time, ~~without the prior written consent of the Administrative Agent~~and ▇▇▇▇▇ Fargo Bank, ~~except~~National Association, as trustee and collateral agent, in each ~~case, to the extent such modifications, amendments, consents, requests or waivers~~ case shall have been ~~required pursuant to~~ (or substantially concurrently with the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to occurrence of the Closing Date by shall be) repaid and all commitments thereunder and guarantees and Liens created in connection therewith shall have been (or substantially concurrently with the ~~relevant person and to the extent such amounts are payable on or prior to~~ occurrence of the Closing ~~Date. The~~ Date shall be) terminated and released, and the Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior evidence thereof reasonably satisfactory to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) it (the transactions set forth in this clause (h), collectively, the “~~Pro Forma Financials~~Refinancing”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower and the Lenders of the date which is the Closing Date ~~as soon as practicable~~ upon ~~its occurrence~~satisfaction or waiver of all of the conditions precedent set forth in this Section 3.01. For purposes of determining compliance with the conditions specified in this Section 3.01, ~~and such notice~~ each Lender shall be ~~conclusive~~ 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 Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Parent Borrower, by notice to the Lenders, designates as the proposed Closing Date, specifying its objection thereto. Notwithstanding the foregoing, the obligations of the Lenders to make Advances and ~~binding~~of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied or waived at or prior to 5:00 p.m., New York City time, on July 6, 2015 (and, in the event such conditions shall not have been so satisfied or waived, the Commitments shall terminate at such time).

Appears in 1 contract

Sources: Credit Agreement (Kraft Heinz Co)

Conditions Precedent to Closing Date. The ~~obligation~~ effectiveness of ~~each Lender to make an Advance on the Closing Date~~ this Agreement is subject to ~~the satisfaction (or waiver in accordance with Section 9.01)~~ each of the following ~~conditions~~conditions precedent and no Loan shall be made hereunder unless each of the following is satisfied (as reasonably determined by the Bank) or waived by the Bank: (a) The ~~Effective Date~~ Borrower will have duly executed and delivered or caused to have been delivered each of the following: (1) This Agreement and the other Loan Documents, together with all Exhibits and Schedules thereto; (2) The Note; (3) Opinion letter(s) of counsel to the Borrower reasonably satisfactory to the Bank; (4) (a) copies of the Operative Documents, and (b) a copy of the Borrower’s resolutions adopted authorizing the execution, delivery and performance of the Loan Documents; (5) The certificate of incorporation for the Borrower, certified as true and correct by the applicable regulatory authority; (6) A good standing certificate (or comparable certificate) from the applicable jurisdiction of organization for the Borrower; (7) A Closing Certificate in form reasonably satisfactory to the Bank; (8) A Borrowing Base Certificate; (9) For each Investor, its duly executed and delivered Subscription Agreement and, to the extent applicable, Side Letter; (10) All documentation and other information required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations, including AML Legislation, the Act and OFAC; (11) A copy of each of the Advisory Agreement, the Administration Agreement, and the License Agreement; and (12) Such other information and documents as may reasonably be required by the Bank and its counsel. In addition, the Bank shall have ~~occurred~~completed to its reasonable satisfaction its due diligence review of the Borrower and its management, controlling owners, systems and operations. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The following shall have ~~received: (i) a certificate of the Borrower signed by a director certifying~~occurred: (1) ~~the~~ The Bank shall have received copies of UCC search reports dated such a date ~~on which the Scheme Circular was posted~~ as is reasonably satisfactory to the ~~shareholders~~ Bank, listing all effective financing statements filed against the Borrower with copies of ~~Shire;~~such financing statements. (2) The Bank shall have received all fees and expenses due and owing to Bank under this Agreement and the other Loan Documents prior to the date ~~on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ hereof and, to the ~~Registrar in accordance with Article 125(3)~~ extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by the Borrower hereunder, including the fees and disbursements invoiced through the date hereof of the ~~Jersey Companies Law;~~Bank’s special counsel, M▇▇▇▇ ▇▇▇▇▇ LLP. (3) ~~as to the satisfaction of each condition~~ The representations and warranties set forth in ~~clauses (d), (e) (to the extent relating to the Scheme), (f)~~ Section 7 of this Agreement and ~~(i) (to the extent relating to the Scheme) below; and (4)~~ each ~~copy~~ other Loan Document shall be true and correct as of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentsdate hereof. (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent~~ The following shall not have ~~received: (i) a certificate of the Borrower signed by a director certifying~~occurred: (1) Any material adverse change in the ~~date on which~~ Bank’s understanding of the ~~Takeover Offer Document was posted~~ facts and information presented to it, or any material litigation or claims shall have been filed with respect to the ~~shareholders of Shire;~~Borrower; or (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan DocumentsAny Material Adverse Effect. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Demand Loan Agreement (Runway Growth Credit Fund Inc.)

Conditions Precedent to Closing Date. The ~~obligation of each Lender to make an Advance~~ Closing Date shall occur on the ~~Closing Date is subject to~~ date that each of the ~~satisfaction~~ following conditions shall have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~9.05): (a) ~~The Effective Date~~ receipt by the Agent of counterparts hereof signed by each of the parties hereto (or, in the case of any party as to which an executed counterpart shall not have ~~occurred.~~been received, receipt by the Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart hereof by such party); (b) If receipt by the ~~Shire Acquisition is effected by way~~ Agent of a ~~Scheme~~certificate, dated the ~~Administrative Agent shall have received:~~ Closing Date and signed by a duly authorized officer of the Company, certifying that (i) ~~a certificate~~ immediately before and after the Closing Date, no Default shall have occurred and be continuing and (ii) the representations and warranties of the ~~Borrower signed by a director certifying: (1)~~ Company contained in this Agreement shall be true on and as of the ~~date on which the Scheme Circular was posted to the shareholders of Shire~~Closing Date; (2c) receipt by the ~~date on which~~ Agent of all documents the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ Agent may reasonably request relating to the ~~Registrar in accordance with Article 125(3)~~ existence and good standing of the ~~Jersey Companies Law~~Company, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all in form and substance satisfactory to the Agent; (3d) ~~as to~~ receipt by the ~~satisfaction~~ Agent of ~~each condition set forth in clauses (d)~~all documentation and other information required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; (e) (receipt by the Agent and the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Commitment Letter or the Fee Letters, including to the extent ~~relating~~ invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the ~~Scheme), (f) and (i) (to the extent relating to the Scheme) below~~Company hereunder or thereunder; and (4f) ~~each copy~~ receipt by the Agent of (i) an opinion of the ~~documents specified in paragraphs~~ General Counsel of the Company, covering such matters as the Agent may reasonably request and (ii) an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Company, covering such matters as the Agent may reasonably request. The Agent shall promptly notify the Company and ~~(iii) below is correct and complete and has not been amended or superseded on or prior to~~ the Banks of the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and ~~binding~~binding on all parties hereto.

Appears in 1 contract

Sources: Credit Agreement (Rockwell Collins Inc)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect or similar, in all respects) as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect or similar, in all respects) as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect or similar, in all respects) as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect or similar, in all respects) as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws, non-contravention with organizational documents, no governmental consents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) reserved; (h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (i) ~~a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ evidence reasonably satisfactory to ~~the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and~~ it that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (all fees and expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Document Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (j) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (l) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gm) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (n) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (LGAM Private Credit LLC)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective and the Revolving Commitments shall be available on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to~~ following conditions precedent have been satisfied (with the ~~satisfaction~~ Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or ~~waiver~~ waived in accordance with Section 9.01~~) of the following conditions:~~): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from STERIS Corporation, STERIS plc and each other Closing Date Party and each Lender either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed such a counterpart. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts that are required to be reimbursed or paid and are then due and payable by any of the ~~Borrower, AbbVie and their Subsidiaries~~ Borrowers to the ~~Arranger~~Administrative Agent, ~~the Administrative Agent~~ each Joint Lead Arranger and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced by the relevant person at least ~~one~~ three Business ~~Day~~ Days prior to the Closing Date ~~by the relevant person~~ and to the extent such amounts are payable on or prior to the Closing Date. . (c) The Administrative Agent (or its counsel) shall have received on or before the Closing Date: (i) Certified copies of the resolutions or similar authorizing documentation of the governing bodies of STERIS Corporation, STERIS plc and each other Closing Date Party authorizing such Person to enter into and perform its obligations under the Loan Documents to which it is a party; (ii) A good standing certificate or similar certificate dated a date reasonably close to the Closing Date from the jurisdiction of formation of STERIS Corporation, STERIS plc and each other Closing Date Party, but only where such concept is applicable (it being understood that no such certificate will be provided by STERIS plc or any Closing Date Party that is an entity organized under the laws of England and Wales); (iii) A customary certificate of STERIS Corporation, STERIS plc and each other Closing Date Party certifying the names and true signatures of the officers and/or directors of STERIS Corporation, STERIS plc and each other Closing Date Party authorized to sign this Agreement and the other documents to be delivered hereunder and, in the case of STERIS plc, to the satisfaction of the conditions set forth in Section 3.01(h) and (i); and (iv) A favorable opinion letter of (A) the General Counsel of STERIS Corporation and (B) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇ and other legal counsel to STERIS Corporation and each other Closing Date Party reasonably satisfactory to the Administrative Agent, in each case in form and substance consistent with those delivered under the Existing Credit Agreement or, as applicable such other form as is reasonably acceptable to the Administrative Agent (and covering STERIS Corporation, STERIS plc and each Closing Date Party). (d) [Reserved]. (e) The Administrative Agent shall have received, on or prior to the Closing Date, so long as requested no less than ten Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to STERIS Corporation, STERIS plc and each other Closing Date Party. (f) Substantially contemporaneously therewith, the Existing Credit Agreement shall be terminated in full and all outstanding obligations thereunder shall be repaid in full (other than contingent obligations not then due). (g) To the extent Advances are being made on the Closing Date, the Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (gh) The ~~Administrative Agent shall have received a pro forma consolidated balance sheet~~ representations and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ warranties of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to ~~the Closing Date, prepared after giving effect~~ materiality or by reference to ~~the Transactions~~ Material Adverse Effect shall be true and correct in all respects as ~~if the Transactions had occurred~~ so qualified) on and as of such ~~date~~ date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in ~~the case~~ all respects as so qualified) as of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereofearlier date. (i) ~~After giving effect to the consummation of the Scheme, or if the Shire Acquisition~~ No Default has occurred and is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCocontinuing. The Administrative Agent shall notify the ~~Borrower~~ Borrowers and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~the conditions precedent in this Section 3.01 being satisfied (or waived in accordance with Section 9.01), and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit Agreement (STERIS PLC)

Conditions Precedent to Closing Date. The obligation of each ~~Lender~~ Bank to make ~~an Advance~~ its Term Loan on the Closing Date is subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the~~ following ~~conditions~~conditions precedent: (a) The ~~Effective Date~~ Agent shall have ~~occurred~~received a certificate from the chief financial officer of the Borrower in form satisfactory to the Agent certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby, are Solvent. It is understood and agreed that the solvency certificate in the form attached hereto on Exhibit 3.02(a) shall be deemed to be in form satisfactory to the Agent. (b) ~~If the Shire Acquisition is effected by way~~ All governmental and third party consents and all equityholder and board of ~~a Scheme, the Administrative Agent shall have received:~~ directors (ior comparable entity management body) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutionsauthorizations, in each ~~case~~case necessary to consummate the Transactions, ~~except to the extent changes thereto~~ shall have been ~~required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents~~obtained and shall be in full force and effect. (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer~~Since June 30, ~~the Administrative Agent shall have received:~~ 2010 (i) there shall not have occurred a ~~certificate~~ Company Material Adverse Effect or (ii) in the event of a Company Material Adverse Effect, such Company Material Adverse Effect has not had, or could not reasonably be expected to have, a material adverse effect on the business, property, assets, operation or condition (financial or otherwise) of the Borrower ~~signed by a director certifying:~~ and its Subsidiaries (1) including the ~~date on which the Takeover Offer Document was posted~~ Company and its Subsidiaries giving pro forma effect to the ~~shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d~~Acquisition), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) taken as a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documentswhole. (d) ~~On the date~~ All principal, interest and other amounts outstanding in connection with existing Debt of the ~~applicable borrowing request~~ Company and on its Subsidiaries will have been paid, or substantially simultaneously with the ~~proposed date~~ funding of the Term Loans will be paid, in full, the commitments thereunder and any Guaranties thereof terminated and all liens securing such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respectsDebt shall be released. (e) ~~Where~~ The payment to the ~~Shire Acquisition is~~ Bank Group of the fees due to ~~be implemented by way~~ them as of ~~a Scheme~~such date under the Loan Documents, the payment to the Agent and the Lead Arrangers of the fees due to each of them as of such date under the ~~Shire Acquisition~~ Fee Letters, and the ~~Company Merger shall have been~~payment of all reasonable legal fees and expenses of ▇▇▇▇▇▇▇▇, ~~or substantially concurrently~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special counsel to the Agent, in connection with the ~~occurrence~~ preparation of this Agreement and the ~~Closing Date shall be,~~ other Loan Documents and the closing of this transaction. (f) The Acquisition will have been consummated ~~in the case of the Shire Acquisition in all material respects~~ in accordance with the terms and conditions of the ~~Scheme Documents~~ Merger Agreement without any waiver, modification or consent thereunder that is materially adverse to the Banks (it being understood that ~~substantially concurrently shall include~~ any amendment or modification of the ~~payment for Scheme Shares being made and~~ definition of “Company Material Adverse Effect” or decrease in the ~~Company Merger being consummated no more than two Business Days after~~ purchase price in respect of the ~~initial Advance hereunder) or~~Acquisition, ~~where~~ or any waiver of the ~~Shire Acquisition is to be implemented by way~~ occurrence of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the “Company ~~Merger shall be consummated~~Material Adverse Effect”, in each ~~case, without giving effect~~ case shall be deemed to ~~(and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are~~ be materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited Banks) unless approved by the ~~Loan Documents~~Lead Arrangers. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit Agreement (Kirby Corp)

Conditions Precedent to Closing Date. The ~~obligation~~ occurrence of ~~each Lender to make an Advance on~~ the Closing Date is shall be subject to the satisfaction (or waiver ~~in accordance with Section 9.01)~~ of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded conditions on or prior to the Closing Date: (a) the Agreement shall not have been terminated with respect to all Parties in accordance with its terms and there shall not be continuing any cure period with respect to any event, ~~except~~ occurrence, or condition that would permit any Company Party, the Required SSN Group Members, Required SUN Group Members, the Sponsor or the Shareholder to terminate the Agreement in accordance with its terms following the conclusion of such cure period; (b) the Agreement Effective Date shall have occurred; (c) the Required Clearance and the Required Third-Party Consent necessary or required to be obtained for the consummation of any part of the Recapitalization Transaction (including the Buyout) shall have been made or received, shall be in full force and effect, and shall not be subject to unfulfilled conditions or contingencies; (d) no issuance by any Governmental Body, including any regulatory authority or court of competent jurisdiction, of any final, non-appealable ruling, judgment, decision, determination, temporary restraining order, preliminary or permanent injunction, or any other order that enjoins the consummation of a material portion of the Recapitalization Transaction or renders the Recapitalization Transaction illegal or impossible; nor shall there be any law, rule, or regulation promulgated, enacted, entered, enforced, or deemed applicable to the ~~extent such changes thereto have~~ Company Parties which makes the consummation of any part of the Recapitalization Transaction illegal, void, or rescinded; (i) the net Purchase Price has been ~~required pursuant~~ paid in full and cleared funds to the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Seller; ~~and~~ and (ii) ~~a copy~~ the Releases have been given in accordance with the Buyout Term Sheet and Section 19 of this Agreement. (f) the delivery of the ~~Scheme Circular~~ Tax Structuring Paper to the Company (subject to such redactions as the Company considers reasonably necessary) the Sponsor Advisors, SSN Group Advisors and SUN Group Advisors; (g) payment in full of all accrued and unpaid Transaction Expenses and Litigation Expenses for which ~~is consistent~~ an invoice has been received by the Company Parties by no later than two (2) Business Days before the Closing Date (inclusive of any reasonable estimate of Transaction Expenses and Litigation Expenses through and including the Closing Date); (h) payment in full of all ~~material respects with~~ accrued and unpaid professional fees, costs, disbursements and expenses of ▇▇▇▇▇ Day and local counsel in relation to New York Litigation subject to delivery of invoices to the ~~terms and conditions in~~ Company no less than three (3) Business Days prior to the ~~Press Release and~~ Closing Date; (i) the ~~Scheme Resolutions~~execution of each of the Definitive Documents, which, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall ~~have received:~~ be in form and substance (i) ~~a certificate of~~ consistent in all respects with the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d)Term Sheet, ~~(e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph~~ (ii) ~~below is correct~~ consistent with the terms of this Agreement, and ~~complete and has~~ (iii) with respect to any provisions not ~~been amended~~ addressed by the Term Sheet or ~~superseded on or prior~~ this Agreement, acceptable to the ~~Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents~~Parties in accordance with Section 3.2); and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (yj) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior precedent to the effectiveness of ~~such Scheme or purchase~~ each of the Definitive Documents shall have occurred, including receipt of the necessary approvals by the Consenting Noteholders pursuant to ~~such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0%~~ the SSN Exchange Offer. Any of ~~both~~ the ~~voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify~~ foregoing conditions may be waived only by the ~~Borrower~~ Company Parties, Required SSN Group Members, Required SUN Group Members, the Sponsor and the ~~Lenders~~ Shareholder; provided, however, consent of a Party shall not be required in order to waive: (i) any condition where such Party’s own action is required to satisfy the condition; (ii) any representations and warranties that such Party is required or deemed to confirm as true and correct as of the Closing ~~Date~~ Date; or (iii) any breach of a condition as ~~soon as practicable upon its occurrence, and~~ a result of such ~~notice shall be conclusive and binding~~Party’s own action or failure to act.

Appears in 1 contract

Sources: Transaction Support Agreement (Ardagh Group S.A.)

Conditions Precedent to Closing Date. The occurrence of the Closing Date, and the obligation of ~~each Lender~~ the Bank to ~~make an Advance on the Closing Date~~ issue any LOC, is subject to the satisfaction (or waiver in accordance with Section ~~9.01~~7.01) of the following ~~conditions~~conditions precedent: (a) The ~~Effective Date~~ Bank shall have ~~occurred~~received from each party hereto or thereto either (i) a counterpart of this Agreement, the Transfer Agreement and the Parent Guaranty signed on behalf of such party or (ii) written evidence satisfactory to the Bank (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and the Parent Guaranty. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent~~ The Bank shall have ~~received:~~ received from the Company a signed certificate, dated as of the Closing Date and signed by a Responsible Officer of the Company on behalf of the Company, certifying as to (i) ~~a certificate~~ the truth in all material respects of the ~~Borrower signed by a director certifying:~~representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (ii) the absence of any Event of Default. (1c) ~~the date on which the Scheme Circular was posted~~ The Bank shall have received documents and certificates relating to the ~~shareholders~~ organization, existence, and good standing of ~~Shire; (2)~~ each Credit Party, and the ~~date on which~~ authorization of the ~~Court has sanctioned the Scheme and that the Court Order has been duly delivered~~ transactions contemplated hereby, all in form reasonably satisfactory to the ~~Registrar in accordance with Article 125(3~~Bank, including (i) certified copies of the resolutions (or comparable evidence of authority) of each Credit Party approving the ~~Jersey Companies Law;~~ transactions contemplated by the Loan Documents and (3ii) a certification as to the ~~satisfaction~~ names and true signatures of the officers of each ~~condition set forth in clauses~~ Credit Party that are authorized to sign the Loan Documents and the other documents to be delivered hereunder. (d)) The Bank shall have received evidence, ~~(e) (~~reasonably satisfactory to it, that the ~~extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and~~ Existing Facility has ~~not~~ been ~~amended or superseded~~ terminated on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respectshereof. (e) ~~Where~~ There shall exist no action, suit, investigation, litigation or proceeding affecting any Credit Party pending or threatened in writing before any Governmental Authority that (x) could be reasonably expected to have a Material Adverse Effect or (y) could reasonably be expected to materially adversely affect the ~~Shire Acquisition is to be implemented by way of a Scheme~~legality, ~~each of the Shire Acquisition and the Company Merger shall have been~~validity, or ~~substantially concurrently with the occurrence~~ enforceability of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer any Loan Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the ~~Panel or are not prohibited by the Loan Documents~~transactions contemplated hereby. (f) ~~All~~ No development or change shall have occurred after January 3, 2016, and no information shall have become known after such date, that has had or could reasonably be expected to have a Material Adverse Effect. (g) The Bank shall have received a written opinion (addressed to the Bank and dated the Closing Date) of counsel to the Company covering the matters set forth in Exhibit C-1 and of in-house counsel to the Parent Guarantor covering the matters set forth in Exhibit C-2, in each case in form and substance reasonably satisfactory to the Bank. (h) The Bank shall have received all documentation and other information reasonably requested by it that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. (i) The Bank shall have received all fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior Date and, to the ~~Closing Date~~extent invoiced, ~~prepared after giving effect~~ reimbursement or payment of all expenses required to ~~the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet)~~ be reimbursed or ~~at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor~~ paid by any ~~Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)~~Applicant hereunder. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Letter of Credit Facility Agreement (Sunpower Corp)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Servicer and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Servicer certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a ~~certificate~~ party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the ~~Borrower signed by a director certifying:~~ Closing Date (~~1) the date on which the Scheme Circular was posted~~ except to the ~~shareholders~~ extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of ~~Shire;~~ such earlier date), (2iv) ~~the date on which the Court~~ that no Default or Event of Default has ~~sanctioned the Scheme~~ occurred and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~ is continuing, and (3v) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d),~~ of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this -84- USActive 60140401.11 Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first‑priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Servicer and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non‑contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Loans from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Document Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement; (h) evidence reasonably satisfactory to it that (i) all fees (to the extent ~~relating~~ invoiced at least two (2) Business Days prior to the ~~Scheme), (f~~Closing Date) and ~~(i) (~~expenses due and owing to the ~~extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Administrative Agent on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Document Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower; (i) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Loans to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (j) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (k) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gl) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Loans (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (m) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower USActive 60140401.11 qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (SLR Private Credit BDC II LLC)

Conditions Precedent to Closing Date. The occurrence of the Closing Date and the obligation of each Lender to make an any Advance hereunder on the Closing Date is shall be subject to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme,~~ conditions precedent that the Administrative Agent shall have ~~received:~~received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent): (a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents; (c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); (d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers, managing member or members approving this Agreement and the other Facility Documents to which it is a ~~certificate~~ party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the ~~Borrower signed by a director certifying:~~ Closing Date (~~1) the date on which the Scheme Circular was posted~~ except to the ~~shareholders~~ extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of ~~Shire;~~ such earlier date), (2iv) ~~the date on which the Court~~ that no Default or Event of Default has ~~sanctioned the Scheme~~ occurred and ~~that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law;~~ is continuing, and (3v) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d),~~ of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Delaware Secretary of State and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first‑priority security interest in the Collateral; (f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non‑contravention with organizational documents and, to the extent ~~relating~~ applicable, the status of the Borrower under the Investment Company Act, the capacity to sue and be sued of the Borrower), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the ~~Scheme)~~Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (fii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request; (g) all of the Covered Accounts denominated in Dollars shall have been established and shall be subject to the applicable Account Control Agreement; (h) evidence reasonably satisfactory to it that (i) (all fees and expenses due and owing to the ~~extent relating to~~ Administrative Agent under the ~~Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded~~ Facility Documents on or prior to the Closing ~~Date, except to the extent such changes thereto~~ Date have been ~~required pursuant to~~ received or will be received contemporaneously with the ~~City Code or required by the Panel or to the extent not prohibited by the Loan Documents~~Closing Date; ~~and~~ and (ii) ~~a copy of~~ the ~~Scheme Circular which is consistent in all material respects with the terms~~ reasonable and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All documented out‑of‑pocket fees and ~~other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ expenses of counsel to ~~the Arranger,~~ the Administrative Agent and the ~~Lenders under the Loan Documents or pursuant to any fee or similar letters relating~~ Lenders, and of counsel to the ~~Loan Documents~~ Custodian, the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall ~~be paid,~~ have been paid by the Borrower in accordance with Section 12.04(a); (i) evidence reasonably satisfactory to it that an amount equal to the ~~extent invoiced at least one Business Day prior~~ Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date by shall have been deposited into the ~~relevant person~~ Unfunded Reserve Account; (j) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder; (k) with respect to ~~the extent such amounts are payable~~ any Advance to be made on ~~or prior to~~ the Closing Date~~. The~~ , the Lenders and the Administrative Agent shall have received a Notice of Borrowing ~~in accordance~~ with ~~Section 2.02.~~respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied; (gl) ~~The Administrative Agent~~ the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and~~ by the Borrower or its ~~Subsidiaries as of and~~ Affiliates with respect to the Collateral shall be held in trust for the ~~twelve-month period ending on the last day~~ benefit of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ Collateral Agent on behalf of the Secured Parties; and (m) sufficiently in advance of the Closing Date, ~~prepared after giving effect~~ (x) 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 and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit and Security Agreement (Fidelity Private Credit Fund)

Conditions Precedent to Closing Date. The ~~obligation of each Lender~~ conditions precedent to ~~make an Advance~~ closing on the Closing Date ~~is subject~~ shall be the execution, where applicable, and delivery to the ~~satisfaction (or waiver in accordance with Section 9.01)~~ Agent of the ~~following conditions~~items described in this Section 8.1, each dated (unless otherwise indicated) the Closing Date and, with sufficient copies for each Lender: (a) ~~The Effective Date~~ from each Borrower: (i) a counterpart of this Agreement (to which all of the Exhibits and Schedules have been attached) executed by the Borrowers, the Agent, the Floor Plan Agent, the Swing Line Bank, the Issuing Banks and the Lenders; (ii) Notes properly executed by the Borrowers to the Lenders, respectively; and (iii) the Swing Line Note properly executed by the Borrowers to the Swing Line Bank; (iv) the Reaffirmation of Loan Documents, in form and substance reasonably satisfactory to the Agent; each of which, if required by this Agreement, shall ~~have occurred~~be duly executed by the parties thereto. (b) ~~If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received:~~ from each Borrower (i) a certificate of the ~~Borrower signed~~ Secretary or an Assistant Secretary of said ▇▇▇▇▇▇▇▇, certifying that (A) attached are true and complete copies of its constituent documents or that such documents have been provided, (B) attached thereto is a true and complete copy of resolutions or unanimous consent duly adopted by its Board of Directors, members or partners authorizing the execution, delivery and performance of this Agreement, the Notes and/or Loan Documents to which it is a ~~director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ party, and that ~~the Court Order has~~ such resolutions have not been ~~duly delivered to the Registrar~~ modified, rescinded or amended and are in ~~accordance with Article 125(3) of the Jersey Companies Law;~~ full force and effect, or that such documents have been provided, and (3C) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d)~~officer of each Borrower executing this Agreement, ~~(e) (to~~ the ~~extent relating to the Scheme)~~Notes, ~~(f) and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ any of the Loan Documents or other documents ~~specified~~ delivered in ~~paragraphs~~ connection herewith or therewith; and (ii) ~~and (iii) below is correct and complete and has not been amended or superseded on or prior to~~ such other documents as the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan DocumentsAgent may reasonably request. (c) ~~If the Shire Acquisition is effected by way~~ from each Borrower a certificate of a ~~Takeover Offer~~President, ~~the Administrative Agent shall have received:~~ Senior Vice President, an Executive Vice President or a Vice President of each Borrower certifying (i) ~~a certificate~~ the truth of the representations and warranties made by such Borrower ~~signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth~~ in ~~clauses (d)~~this Agreement, ~~(e) (to the extent relating to the Takeover Offer), (f)~~ and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph~~ (ii) ~~below is correct and complete and has not been amended or superseded on or prior to~~ the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver absence of the ~~conditions to the Takeover Offer~~ occurrence and continuance of any Default or Event of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan DocumentsDefault. (d) On the ~~date of~~ Agent’s Letter duly executed by the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respectsCompany. (e) ~~Where~~ the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers Upfront Fee Letter duly executed by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan DocumentsCompany. (f) ~~All fees and other amounts due and payable~~ the Floor Plan Agent’s Letter duly executed by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02Company. (g) ~~The~~ the Co-Lead Arranger Letters, each duly executed by the Company. (h) an opinion of counsel to the Borrowers and any Subsidiary which signs any of the Loan Documents, addressed to the Agent and the Lenders and in form and substance reasonably satisfactory to the Agent. (i) an Administrative Questionnaire completed by each Lender and, if required, the tax forms set forth in Section 5.14. (j) evidence that the fees and disbursements required to be paid by the Company pursuant to Section 5.4 and Section 13.4 on the Closing Date have been paid. (k) evidence that all UCC-1 filings and other Liens that are not permitted pursuant to this Agreement and which are existing or reflected in searches performed by the Agent ~~shall~~ or its counsel as of the Closing Date have ~~received a pro forma consolidated balance sheet and related pro forma consolidated statement~~ been released and/or terminated to the reasonable satisfaction of ~~income of AbbVie NewCo~~ the Agent and its ~~Subsidiaries as~~ counsel. (l) evidence of insurance required by Section 9.3. (m) all documentation and ~~for~~ other information requested by the ~~twelve~~Agent or any Lender to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-~~month period ending on~~ money laundering rules and regulations, including the ~~last day of the most recently completed four-fiscal quarter period ended at~~ USA PATRIOT Act. (n) At least 45 five days prior to the Closing Date, ~~prepared after giving effect to~~ if any Borrower qualifies as a “legal entity customer” under the ~~Transactions as if the Transactions had occurred as of~~ Beneficial Ownership Regulation, such ~~date (~~Borrower must deliver a Beneficial Ownership Certification in ~~the case of~~ relation such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)Borrower. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement and the obligations of each Lender to make an its initial Advance and of each Issuing Bank to issue its initial Letter of Credit hereunder shall not become effective until the date on which each of the ~~Closing Date~~ following conditions precedent is ~~subject to the satisfaction (~~satisfied, or ~~waiver~~ waived in accordance with Section 9.01~~) of the following conditions~~: (a) ~~The Effective Date~~ This Agreement shall have ~~occurred~~been executed by the Administrative Agent and the London Agent, and the Administrative Agent shall have received from ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower and each Initial Lender either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of this Agreement. (b) If The Holdco Guaranty Agreement shall have been executed by ▇▇▇▇▇ ▇▇▇▇▇ and the ~~Shire Acquisition is effected by way~~ Administrative Agent. (c) The Agents and the Lenders shall have received payment in full in cash of ~~a Scheme~~all fees and expenses due to them pursuant to the Commitment Letter, the ~~Administrative Agent shall have received: (i) a certificate of~~ JPM Fee Letter or the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded CoBank Fee Letter on or prior to the Closing ~~Date~~Date and, ~~except~~ in the case of expenses, to the extent ~~such changes thereto have been required pursuant~~ invoiced at least one day prior to the ~~City Code or~~ Closing Date. (d) The Lenders shall have received all documentation and other information required by ~~the Panel or~~ regulatory authorities with respect to the ~~extent not prohibited~~ Borrowers and ▇▇▇▇▇ ▇▇▇▇▇ under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act. (e) On the Closing Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of ▇▇▇▇▇ ▇▇▇▇▇, dated the ~~Loan Documents;~~ Closing Date, stating that: (i) the representations and warranties contained in Section 4.01 are correct on and as of the Closing Date, and (ii) ~~a copy~~ no event has occurred and is continuing on and as of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code Closing Date that constitutes a Default or ~~required by the Panel or by a court~~ Event of ~~competent jurisdiction or are not prohibited by the Loan Documents~~Default. (cf) ~~If the Shire Acquisition is effected by way of a Takeover Offer, the~~ The Administrative Agent shall have ~~received~~received on or before the Closing Date the following, each dated such day, in form and substance reasonably satisfactory to the Administrative Agent: (i) ~~a certificate~~ Certified copies of the ~~Borrower signed by a director certifying: (1)~~ resolutions of the ~~date on which the Takeover Offer Document was posted to the shareholders~~ Board of ~~Shire; (2) as to the satisfaction~~ Directors of each ~~condition set forth~~ of ▇▇▇▇▇ ▇▇▇▇▇ and the Parent Borrower approving this Agreement and, in ~~clauses (d)~~the case of ▇▇▇▇▇ ▇▇▇▇▇, ~~(e) (~~the Holdco Guaranty Agreement, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan DocumentsHoldco Guaranty Agreement. (ii) ~~a copy~~ Certificates of the ~~Takeover Offer Document which is consistent in all material respects with~~ Secretary or an Assistant Secretary of each of ▇▇▇▇▇ ▇▇▇▇▇ and the ~~terms~~ Parent Borrower certifying the names and ~~conditions~~ true signatures of the officers thereof authorized to sign this Agreement and, in the ~~Offer Press Announcement~~case of ▇▇▇▇▇ ▇▇▇▇▇, ~~except~~ the Holdco Guaranty Agreement and certifying as to the ~~extent changes thereto have been required pursuant to~~ organizational documents, the ~~City Code or required by~~ resolutions and the ~~Panel or are permitted under~~ good standing of ▇▇▇▇▇ ▇▇▇▇▇ and the ~~Loan Documents~~Parent Borrower and other customary matters. (diii) On Opinions of (A) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel to ▇▇▇▇▇ ▇▇▇▇▇ and the ~~date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Parent Borrower, and (yB) ~~all~~ internal counsel for ▇▇▇▇▇ ▇▇▇▇▇, in each case reasonably satisfactory to the ~~Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects~~Administrative Agent. (eg) ~~Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company~~ The Merger Transactions shall have ~~been,~~ been (or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each ~~case,~~ case pursuant to and on the terms set forth in the Merger Agreement and without giving effect to ~~(and there shall not have been) any modifications,~~ amendments, ~~consents~~supplements, ~~requests~~ waivers or ~~waivers~~ other modifications to the Merger Agreement that are adverse in any material respect to the Lenders and that have not been approved by the Joint Lead Arrangers. The Parent Borrower shall be a wholly-owned Subsidiary of ▇▇▇▇▇ ▇▇▇▇▇. (~~or its applicable affiliate~~a) ~~thereunder that are materially adverse~~ All amounts under (i) the Five-Year Revolving Credit Agreement dated as of May 29, 2014, among Kraft Foods Group, JPMorgan Chase Bank, N.A. and Barclays Bank PLC, as administrative agents, the lenders party thereto and the other parties thereto, (ii) the Credit Agreement dated as of June 7, 2013, among ▇. ▇. ▇▇▇▇▇ Company, ▇.▇. ▇▇▇▇▇ Corporation II, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, and the other parties thereto and (iii) 4.25% Second Lien Secured Notes due in 2020, issued under the Indenture, dated as of April 1, 2013, among ▇. ▇. ▇▇▇▇▇ Company, as the issuer, ▇.▇. ▇▇▇▇▇ Corporation II, as a guarantor, the other guarantors party thereto from time to ~~the interests of the Lenders~~time, ~~without the prior written consent of the Administrative Agent~~and ▇▇▇▇▇ Fargo Bank, ~~except~~National Association, as trustee and collateral agent, in each ~~case, to the extent such modifications, amendments, consents, requests or waivers~~ case shall have been ~~required pursuant to~~ (or substantially concurrently with the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to occurrence of the Closing Date by shall be) repaid and all commitments thereunder and guarantees and Liens created in connection therewith shall have been (or substantially concurrently with the ~~relevant person and to the extent such amounts are payable on or prior to~~ occurrence of the Closing ~~Date. The~~ Date shall be) terminated and released, and the Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior evidence thereof reasonably satisfactory to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) it (the transactions set forth in this clause (h), collectively, the “~~Pro Forma Financials~~Refinancing”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify ▇▇▇▇▇ ▇▇▇▇▇, the Parent Borrower and the Lenders of the date which is the Closing Date ~~as soon as practicable~~ upon ~~its occurrence~~satisfaction or waiver of all of the conditions precedent set forth in this Section 3.01. For purposes of determining compliance with the conditions specified in this Section 3.01, ~~and such notice~~ each Lender shall be ~~conclusive~~ 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 Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Parent Borrower, by notice to the Lenders, designates as the proposed Closing Date, specifying its objection thereto. Notwithstanding the foregoing, the obligations of the Lenders to make Advances and ~~binding~~of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied or waived at or prior to 5:00 p.m., New York City time, on July 6, 2015 (and, in the event such conditions shall not have been so satisfied or waived, the Commitments shall terminate at such time).

Appears in 1 contract

Sources: Credit Agreement (Kraft Heinz Co)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of ~~each Lender to make an Advance~~ the first date on which the ~~Closing Date is subject to the satisfaction~~ following conditions precedent have been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01) of the following conditions:~~8.01): (a) The ~~Effective Date~~ Administrative Agent (or its counsel) shall have ~~occurred~~received from each party hereto either (i) a counterpart of this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (b) ~~If the Shire Acquisition is effected by way of a Scheme~~Since December 31, ~~the Administrative Agent~~ 2013, there shall not have ~~received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted~~ occurred any event or condition that has had or would be reasonably expected to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d)have, (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended either individually or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the ~~Press Release and the Scheme Resolutions~~aggregate, ~~in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by~~ a ~~court of competent jurisdiction or are not prohibited by the Loan Documents~~Material Adverse Effect. (c) If All fees due to the ~~Shire Acquisition is effected by way~~ Administrative Agent, the Arrangers and the Lenders shall have been paid, and all expenses of ~~a Takeover Offer,~~ the Administrative Agent ~~shall have received: (i) a certificate of~~ and the Arrangers that are required to be paid or reimbursed by the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not~~ that have been ~~amended or superseded on or~~ invoiced at least two Business Days prior to the Closing ~~Date, except to the extent such changes thereto~~ Date shall have been ~~required pursuant to the City Code~~ so paid or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documentsreimbursed. (d) On the ~~date of~~ Closing Date, the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are following statements shall be true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a ~~Notice~~ certificate of ~~Borrowing~~ the Borrower, dated the Closing Date, stating that: (i) The representations and warranties contained in ~~accordance with~~ Section ~~2.02~~4.01 are true and correct in all material respects (or in the case of any representation or warranty that by its terms is qualified by materiality, true and correct) on and as of the Closing Date; and (ii) No event has occurred and is continuing, or shall occur as a result of the occurrence of the Closing Date, that constitutes a Default. (ge) The Administrative Agent shall have received ~~a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for~~ on or before the ~~twelve-month period ending~~ Closing Date, each dated on ~~the last day~~ or about such date: (i) Certified copies of the ~~most recently completed four-fiscal quarter period ended~~ Resolutions, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement; (ii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered by it hereunder; and (iii) A favorable opinion letter from ▇▇▇▇▇ ▇▇▇▇▇ LLP in form and substance reasonably satisfactory to the Administrative Agent. (f) The 2012 Credit Agreement shall have been terminated in accordance with Section 8.15. (g) To the extent requested by a Lender, delivery of executed promissory notes. (h) To the extent requested by any Lender through the Administrative Agent in writing at least ~~45 days~~ 10 Business Days prior to the Closing Date, ~~prepared after giving effect~~ the Borrower shall have provided the documentation and other information to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent ~~nor any Lender shall have any approval right as regards~~ that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the ~~form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction~~Patriot Act, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately at least five Business Days prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing ~~Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~Date.

Appears in 1 contract

Sources: Credit Agreement (Abbott Laboratories)

Conditions Precedent to Closing Date. The obligation of ~~each Lender~~ the Lenders to make ~~an Advance~~ Loans and Advances hereunder on the Closing Date is subject solely to ~~the~~ satisfaction (or ~~waiver in accordance with Section 9.01~~waiver) of the following ~~conditions~~conditions precedent, and upon satisfaction (or waiver) of such conditions each Lender shall make all of its required Loans and Advances hereunder on the Closing Date: (a) The ~~Effective Date~~ Agent’s receipt of executed counterparts of this Agreement (including exhibits and schedules), which shall ~~have occurred~~be originals or PDF copies unless otherwise specified, properly executed by a duly authorized officer of the Borrower, dated the Closing Date, and in form and substance satisfactory to the Agent and each of the Lenders. (b) ~~If the Shire Acquisition is effected by way~~ As of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except as disclosed in the Public Filings, there shall have occurred no event or circumstance that could reasonably be expected to result in a Material Adverse Change since December 31, 2020. (c) All fees due to the ~~extent such changes thereto~~ Agent, the Arrangers and the Lenders shall have been ~~required pursuant~~ paid, and all expenses to be paid or reimbursed to the ~~City Code or required by~~ Agent and the ~~Panel or~~ Arrangers that have been invoiced a reasonable period of time prior to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme ResolutionsClosing Date shall have been paid, in each case, ~~except~~ from the proceeds of the initial funding hereunder (provided that the accrued fees and expenses of counsel to the ~~extent changes thereto have been required pursuant to the City Code or required~~ Agent shall be paid directly by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (dBorrower), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger The Borrower shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued provided to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, ~~except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents.~~ (fi) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 within four days prior to the Closing Date, ~~prepared after giving effect~~ the documentation and other information required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the U.S.A. Patriot Act, to the ~~Transactions as if~~ extent requested by the ~~Transactions had occurred as of such date (in the case of such balance sheet)~~ Agent or ~~at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor~~ any Lender at least seven days prior to the Closing Date and (ii) at least four days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have ~~any approval right as regards the form or contents of the Pro Forma Financials).~~delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. CHAR1\1986393v3 (he) ~~It is not illegal~~ The Agent shall have received on or before the Closing Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for ~~any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of~~ the ~~Advances or restricting the application of the proceeds thereof.~~Notes) in sufficient copies for each Lender: (i) ~~After giving effect~~ A Note for each Lender that has requested a Note pursuant to Section 2.16, including, if requested, a Swing Line Note for the ~~consummation~~ Swing Line Lender. (ii) Certified copies of the ~~Scheme~~resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes. (iii) A certificate of the Secretary or ~~if the Shire Acquisition is implemented by way~~ an Assistant Secretary of ~~a Takeover Offer after giving effect to the initial purchase~~ each of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and Subsidiary Guarantor certifying the ~~Lenders~~ names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party. (iv) A good standing certificate as of a recent date for each of the Borrower and Subsidiary Guarantor from the Secretary of State of the State of Delaware. (v) An officer’s certificate from an executive officer of the Borrower regarding satisfaction of the conditions precedent set forth in Sections 3.01(b) and 3.02. (vi) Favorable opinions of (A) ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for the Borrower, substantially in the form of Exhibit D‑1 hereto and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, substantially in the form of Exhibit D-2 hereto. (vii) The Subsidiary Guaranty, executed by a duly authorized officer of the such Subsidiary Guarantor, dated as of the Closing ~~Date as soon as practicable upon its occurrence~~Date, and ~~such notice~~ substantially in the form of Exhibit E hereto. (viii) Certified copies of the consents of the sole manager of the Subsidiary Guarantor approving the Subsidiary Guaranty, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Subsidiary Guaranty. (f) The Agent shall ~~be conclusive~~ have received evidence that the Borrower has terminated the Existing Credit Agreement and ~~binding~~repaid in full all obligations owing thereunder.

Appears in 1 contract

Sources: Credit Agreement (Packaging Corp of America)

Conditions Precedent to Closing Date. The ~~obligation~~ Closing Date shall occur when the following conditions precedent have been satisfied in the sole discretion of the Agent and the Agent shall have received on or before such date the following, each ~~Lender to make an Advance on~~ dated (unless otherwise indicated) the Closing Date ~~is subject~~ and, with respect to ~~the satisfaction (or waiver~~ all such documents referred to in ~~accordance with~~ Section ~~9.01~~8.1(a), Section 8.1(b), Section 8.1(c), and Section 8.1(d) ~~of the following conditions~~in sufficient copies for each Lender: (a) ~~The Effective Date shall~~ from each Borrower: (i) a counterpart of this Agreement (to which all of the Exhibits and Schedules have ~~occurred~~been attached) executed by the Borrowers, the Agent, the Floor Plan Agent, the Swing Line Bank and the Lenders; (ii) Notes of the Borrowers dated the Closing Date, properly executed by the Borrowers to the order of the Lenders, respectively; and (iii) the Swing Line Note, dated the Closing Date, properly executed by the Floor Plan Borrowers to the order of the Swing Line Bank. (b) If from each Borrower a ratification of all prior liens and security interests granted in the ~~Shire Acquisition is effected by way~~ below named documents (to the extent still relevant) in a form satisfactory to Agent (the "RATIFICATION AGREEMENT") or, if any Borrower has not previously executed same, executed originals of ~~a Scheme,~~ the ~~Administrative Agent shall have received~~following: (i) the Security Agreement; (ii) the Escrow and Security Agreement; (iii) the GM Borrower Guaranty; and (iv) any other necessary Security Documents in the form satisfactory to the Agent and its counsel; each of which, if required by this Agreement, shall be duly executed by the parties thereto. (c) from each Borrower (i) a certificate of the ~~Borrower signed~~ Secretary or an Assistant Secretary of the Company and each of its Subsidiaries, certifying that (A) attached are true and complete copies of its constituent documents, (B) attached thereto is a true and complete copy of resolutions or unanimous consent duly adopted by its Board of Directors, members or partners authorizing the execution, delivery and performance of this Agreement, the Notes, the Swing Line Note and/or Loan Documents to which it is a ~~director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme~~ party, and that ~~the Court Order has~~ such resolutions have not been ~~duly delivered to the Registrar~~ modified, rescinded or amended and are in ~~accordance with Article 125(3) of the Jersey Companies Law;~~ full force and effect, and (3C) as to the ~~satisfaction~~ incumbency and specimen signature of each ~~condition set forth in clauses (d)~~officer of each Borrower executing this Agreement, ~~(e) (to~~ the ~~extent relating to~~ Notes, the ~~Scheme)~~Swing Line Note, ~~(f) and (i) (to the extent relating to the Scheme) below; and (4) each copy~~ any of the ~~documents specified~~ Loan Documents or any other document delivered in ~~paragraphs~~ connection herewith or therewith; (ii) a certificate of another officer of each Borrower, which is a party to this Agreement, the Notes, the Swing Line Note and/or any of the Loan Documents as to the incumbency and specimen signature of the Secretary or such Assistant Secretary of such Person; and (iii) ~~below is correct and complete and has not been amended or superseded on or prior to~~ such other documents as the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documentsmay reasonably request. (d) On from each Borrower a certificate of a President, Senior Vice President, an Executive Vice President or a Vice President of each Borrower certifying (i) the ~~date~~ truth of the ~~applicable borrowing request~~ representations and ~~on the proposed date of~~ warranties made by such ~~borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ Borrower in this Agreement, and (yii) ~~all~~ the ~~Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects~~absence of the occurrence and continuance of any Default or Event of Default. (e) ~~Where~~ the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers Agent's Letter duly executed by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan DocumentsCompany. (f) ~~All fees and other amounts due and payable~~ the Floor Plan Agent's Letter duly executed by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02Company. (g) ~~The Administrative Agent shall have received a pro forma consolidated balance sheet~~ the opinion of counsel to the Borrowers and ~~related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day~~ any Subsidiary which signs any of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior~~ Loan Documents, addressed to the ~~Closing Date, prepared after giving effect to~~ Agent and the ~~Transactions as if the Transactions had occurred as of such date (~~Lenders and in the ~~case~~ form of ~~such balance sheet~~Exhibit 8.1(g) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)hereto. (h) ~~It is not illegal for any~~ an Administrative Questionnaire completed by each Lender ~~to lend and there is no injunction~~and, ~~restraining order or equivalent prohibiting any Lender from lending its portion of~~ if required, the ~~Advances or restricting the application of the proceeds thereof~~tax forms set forth in Section 5.14. (i) ~~After giving effect~~ an intercreditor agreement, reasonably satisfactory to the ~~consummation~~ Agent, Floor Plan Agent and Required Lenders (which shall evidence their satisfaction by execution of this Agreement), setting -64- forth the respective rights of each party in the assets of the ~~Scheme~~Company and the Borrowers executed with, ~~or if~~ and received from, each provider of Permitted New Vehicle Floor Plan Indebtedness. (j) evidence that the ~~Shire Acquisition is implemented~~ fees and disbursements required to be paid by ~~way of a Takeover Offer after giving effect to~~ the ~~initial purchase of Shire Shares~~ Company pursuant to Section 5.4 and Section 13.4 on the ~~Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase~~ Closing Date have been paid. (k) evidence that all UCC-1 filings and other Liens not permitted pursuant to ~~such Takeover Offer shall own equity interests~~ this Agreement which are existing or reflected in ~~AbbVie NewCo representing more than 20.0% of both~~ searches performed by the ~~voting interests of and value of AbbVie NewCo. The Administrative~~ Agent ~~shall notify the Borrower and the Lenders~~ or its counsel as of the Closing Date ~~as soon as practicable upon~~ have been released and/or terminated to the satisfaction of the Agent and its ~~occurrence, and such notice shall be conclusive and binding~~counsel.

Appears in 1 contract

Sources: Revolving Credit Agreement (Group 1 Automotive Inc)

Conditions Precedent to Closing Date. ~~The~~ As conditions precedent to the effectiveness of this Agreement and the obligation of ~~each Lender~~ the Bank to ~~make an Advance on~~ issue the ~~Closing Date is subject~~ initial Letters of Credit pursuant to the ~~satisfaction (or waiver in accordance with Section 9.01) of the following conditions:~~terms hereto, (a) The ~~Effective Date~~ Company shall ~~have occurred. (b) If~~ provide to the ~~Shire Acquisition is effected by way of a Scheme~~Bank on or before the Closing Date, in form and substance satisfactory to the ~~Administrative Agent shall have received~~Bank and its special counsel, ▇▇▇▇▇ ▇▇▇▇▇ LLP: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme this Agreement duly executed and ~~that the Court Order has been duly~~ delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the ~~Panel or to the extent not prohibited by the Loan Documents; and~~Company; (ii) a ~~copy~~ certificate signed by a duly authorized officer of the ~~Scheme Circular which~~ Company, dated the Closing Date and certifying that on the Closing Date, (A) the representations and warranties contained in Article IV of this Agreement are correct on and as of the Closing Date as though made on such date; (B) no Event of Default or Potential Default has occurred and is ~~consistent in all~~ continuing, or would result from the issuance of any Letter of Credit on the date hereof or the execution and delivery of this Agreement; and (C) no event, change or condition has occurred that has had, or could reasonably be expected to have, a material ~~respects with~~ adverse effect on the ~~terms~~ business, assets, operations or condition, financial or otherwise, of the Company and ~~conditions in~~ its subsidiaries, taken as a whole, since June 29, 2014; (iii) copies of the ~~Press Release~~ resolutions of the Company authorizing the transactions contemplated by this Agreement and ~~the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required~~ certified by the ~~Panel or by a court~~ Secretary of ~~competent jurisdiction or are not prohibited by~~ the ~~Loan Documents.~~Company; (~~c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i~~iv) a certificate of the ~~Borrower signed by a director certifying: (1~~Secretary of the Company certifying the names and true signatures of the officer(s) of the ~~date on which the Takeover Offer Document was posted~~ Company authorized to ~~the shareholders of Shire~~sign this Agreement; (2v) copies of the certificate of incorporation and bylaws of the Company, certified by a duly authorized officer of the Company as ~~to the satisfaction of each condition set forth in clauses (d)~~being a true, ~~(e) (to the extent relating to the Takeover Offer), (f)~~ complete and ~~(i) (to the extent relating to the Takeover Offer) below~~accurate copy thereof; (3vi) ~~each copy~~ a certificate of good standing of the ~~documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior~~ Company certified by the Secretary of State of Delaware, as of a date reasonably close to the Closing Date~~, except~~ ; (vii) a written opinion of external counsel to the ~~extent~~ Company, dated the Closing Date, as to such ~~changes thereto have been required pursuant to~~ matters as the ~~City Code or required by the Panel or are not prohibited by the Loan Documents~~Bank may reasonably request; and (4viii) ~~that~~ such other documents, certificates and opinions as the ~~Takeover Offer has been declared unconditional in~~ Bank or its special counsel may reasonably request; (b) all ~~respects without any material amendment, modification~~ filings or ~~waiver of the conditions to the Takeover Offer~~ recordings necessary or ~~of the Acceptance Condition except to the extent not prohibited~~ reasonably requested by the ~~Loan Documents.~~ Bank (~~ii) a copy of~~ including financing statements and precautionary financing statements), to perfect the ~~Takeover Offer Document which is consistent in all material respects with the terms~~ rights, titles and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the ~~Lenders, without~~ Bank intended to be created by Section 2.8 hereof shall have been made in the ~~prior written consent of the Administrative Agent, except, in each case,~~ appropriate places or offices; and (c) all legal requirements provided herein incident to the ~~extent such modifications~~execution, ~~amendments~~delivery, ~~consents~~and performance of this Agreement and the transactions contemplated hereby and thereby, ~~requests or waivers have been required pursuant~~ shall be reasonably satisfactory to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo Bank and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials)special counsel. (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Collateralized Issuance and Reimbursement Agreement (McClatchy Co)

Conditions Precedent to Closing Date. ~~The obligation of each Lender to make an Advance~~ This Agreement shall become effective on the ~~Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.01)~~ first date on which each of the following ~~conditions~~conditions precedent have been satisfied: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received the following, each dated the same date, in form and substance satisfactory to the Administrative Agent and (except for any Note) with one copy for each Fronting Bank and each Lender: (i) This Agreement, duly executed by each of the parties hereto, and Notes requested by any Lender pursuant to Section 2.18(d), duly completed and executed by the Borrower and payable to such Lender; (ii) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a ~~pro forma~~ party and of all documents evidencing any other necessary corporate action with respect to this Agreement and such Loan Documents; (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which the Borrower is, or is to become, a party and the other documents to be delivered hereunder and (B) that attached thereto are true and correct copies of the Organizational Documents of the Borrower, in each case as in effect on such date; (iv) Forecasts of consolidated balance ~~sheet~~ sheets and ~~related pro forma consolidated statement~~ statements of income of ~~AbbVie NewCo~~ the Borrower and its Subsidiaries ~~as of and~~ for each fiscal year ending after such date until the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as third (3rd) anniversary of such date (the “Projections”); (v) An opinion of ▇▇▇▇▇ Day, special counsel for the Borrower; (vi) A certificate of an Authorized Officer of the Borrower certifying the satisfaction of the conditions specified in Section 3.03(i) with respect to the Borrower; and (vii) Such other certifications, opinions, financial or other information, approvals and documents as the Administrative Agent, any Fronting Bank or any other Lender may reasonably request, all in form and substance satisfactory to the Administrative Agent, such Fronting Bank or such other Lender (as the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financialsmay be). (hb) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall ~~notify~~ have received the Fee Letters, duly executed by each of the parties thereto. (c) The Borrower shall have paid, or caused to be paid, all of the fees payable in accordance with the Fee Letters. (d) The Administrative Agent shall have received all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act (including, for the avoidance of doubt, Beneficial Ownership Certifications), to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders of prior to the ~~Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~date hereof.

Appears in 1 contract

Sources: Credit Agreement (Firstenergy Corp)

Conditions Precedent to Closing Date. The occurrence of the Closing Date, and the obligation of ~~each Lender~~ the Issuing Bank to ~~make an Advance on the Closing Date~~ issue any LOC, is subject to the satisfaction (or waiver in accordance with Section ~~9.01~~8.01) of the following ~~conditions~~conditions precedent: (a) The ~~Effective Date~~ Administrative Agent shall have ~~occurred~~received from each party hereto or thereto either (i) a counterpart of this Agreement and the Parent Guaranty signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and the Parent Guaranty. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true in all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received from the Company a ~~Notice~~ signed certificate, dated as of ~~Borrowing~~ the Closing Date and signed by a Responsible Officer of the Company on behalf of the Company, certifying as to (i) the truth in ~~accordance with Section 2.02~~all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (ii) the absence of any Event of Default. (gc) The Administrative Agent shall have received documents and certificates relating to the organization, existence, and good standing of each Credit Party, and the authorization of the transactions contemplated hereby, all in form reasonably satisfactory to the Administrative Agent, including (i) certified copies of the resolutions (or comparable evidence of authority) of each Credit Party approving the transactions contemplated by the Loan Documents and (ii) a certification as to the names and true signatures of the officers of each Credit Party that are authorized to sign the Loan Documents and the other documents to be delivered hereunder. (d) The Administrative Agent shall have received a ~~pro forma consolidated balance sheet~~ written opinion (addressed to the Administrative Agent and ~~related pro forma consolidated statement~~ the Banks and dated the Closing Date) of ~~income~~ counsel to the Company covering the matters set forth in Exhibit C and of ~~AbbVie NewCo~~ in-house counsel to the Parent Guarantor with regard to matters of French law, in each case in form and ~~its Subsidiaries as of and for~~ substance reasonably satisfactory to the ~~twelve-month period ending on the last day~~ Administrative Agent. Each of the ~~most recently completed four-fiscal quarter period ended at least 45~~ Company and the Parent Guarantor hereby requests such counsel to deliver such opinion, which may be delivered by electronic transmission to the Administrative Agent with the signed original(s) to follow within five (5) days after the Closing Date. (e) The Administrative Agent shall have received evidence, reasonably satisfactory to it, that the Existing Facility has been terminated on or prior to the date hereof. (f) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing ~~Date~~Date and, ~~prepared after giving effect~~ to the ~~Transactions~~ extent invoiced, reimbursement or payment of all expenses required to be reimbursed or paid by any Applicant hereunder, including the previously agreed fees and disbursements of Moses & Singer LLP as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither special counsel to the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the ~~Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding~~Issuing Bank.

Appears in 1 contract

Sources: Letter of Credit Facility Agreement (Sunpower Corp)

Conditions Precedent to Closing Date. The obligation of each Lender to make an Advance ~~on the Closing Date is~~ shall be subject to all of the ~~satisfaction~~ following conditions precedent having been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01~~8.01) of on or before the ~~following conditions~~Commitment Termination Date: (a) The Effective Date shall have occurred. (b) If (i) The Acquisition shall have been, or substantially concurrently with the ~~Shire~~ funding of the Advances shall be, consummated in accordance with the terms of the Acquisition Agreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified, and no consent by the Borrower or any of its Subsidiaries shall have been provided thereunder, in each case which is ~~effected by way~~ materially adverse to the interests of ~~a Scheme~~the Lenders without the Arrangers’ prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that, (w)(i) any increase in the ~~Administrative~~ non-cash portion of the purchase consideration and (ii) any decrease in the non-cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall in each case be deemed not materially adverse to the Lenders, (x) any decrease in the cash portion of the purchase consideration for the Acquisition shall be deemed not materially adverse to the Lenders so long as it shall have been allocated to reduce the Commitments in an amount equal to such reduction in the cash portion of the purchase consideration and (y) any increase or decrease in the cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall be deemed not materially adverse to the Lenders. The Agent shall have ~~received:~~received from the Borrower certified copies of the Acquisition Agreement and all amendments, modifications, waivers and consents, if applicable, under the Acquisition Agreement. (c) Except as set forth in the corresponding sections or subsections of the Company Disclosure Letter (as defined in the Acquisition Agreement) (it being understood that any disclosure set forth in one section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to, and shall be deemed to apply to and qualify, the section or subsection of the Acquisition Agreement to which it corresponds in number and each other section or subsection of the Acquisition Agreement to the extent the qualifying nature of such disclosure with respect to such other section or subsection is reasonably apparent on the face of such disclosure) or, to the extent the qualifying nature of such disclosure with respect to a specific representation and warranty is reasonably apparent therefrom, as set forth in the Company Reports (as defined in the Acquisition Agreement) filed on or after January 1, 2016 and prior to the date of the Acquisition Agreement (excluding all disclosures (other than statements of historical fact) in any “Risk Factors” section and any disclosures included in any such Company Reports that are cautionary, predictive or forward looking in nature), since December 31, 2015 there shall not have been any change, effect, circumstance or development which has had or would, individually or in the aggregate, reasonably be likely to have a Target Material Adverse Effect. (d) The Arrangers shall have received (i) ~~a certificate~~ audited consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Borrower ~~signed by a director certifying: (1)~~ and its Subsidiaries for the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or last three full fiscal years ended at least 75 days prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and ~~conditions in the Press Release~~ unaudited consolidated and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent ~~relating to the Takeover Offer)~~available) consolidating balance sheets and related statements of income, ~~(f)~~ comprehensive income and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy~~ cash flows of the ~~documents specified in paragraph (ii) below is correct~~ Borrower and ~~complete and has not been amended~~ its Subsidiaries for each subsequent fiscal quarterly interim period or ~~superseded on or~~ periods ended at least 40 days prior to the Closing ~~Date~~Date (and the corresponding period(s) of the prior fiscal year) (other than the last fiscal quarter of any fiscal year), ~~except~~ which shall have been reviewed by the independent accountants for the Borrower as provided in Statement of Auditing Standards No. 100, and prepared in accordance with the requirements of Form 10-K and 10-Q under the Securities Act and under Regulation S-X under the Securities Act (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the Borrower of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period); and (ii) to the extent ~~such changes thereto~~ as would be required by Rule 3-05 and Article 11 of Regulation S-X if the Permanent Financings were registered on Form S-1 under the Securities Act on the Closing Date, (A) audited consolidated annual balance sheets and related statements of income, comprehensive income and cash flows of the Target, as well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Target (which shall have been ~~required pursuant to the City Code or required~~ reviewed by the ~~Panel or are not prohibited~~ independent accountants for the Target as provided in Statement of Auditing Standards No. 100) and prepared in accordance with GAAP (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the ~~Loan Documents; and~~ Target of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period) and (4B) ~~that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver~~ pro forma financial statements of the ~~conditions to~~ Borrower reflecting the ~~Takeover Offer or~~ Transactions, which meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the ~~Acceptance Condition except~~ SEC promulgated thereunder applicable to ~~the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent~~ registration statements on Form S-1, in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true each case in all material respects. (e) ~~Where~~ All costs, fees, expenses (including legal fees and expenses) to the ~~Shire Acquisition is~~ extent invoiced at least three Business Days prior to ~~be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of~~ the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the ~~Company Merger being consummated no more than two Business Days after~~ fees payable pursuant to Section 2.03 to the ~~initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer~~Arrangers, the ~~Takeover Offer~~ Agent or the Lenders shall have ~~become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued~~ been paid on or prior to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, exceptClosing Date, in each case, to the extent ~~such modifications, amendments, consents, requests or waivers have been~~ required ~~pursuant~~ by this Agreement to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be ~~paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable~~ paid on or prior to the Closing Date. . (f) The ~~Administrative~~ Agent shall have received (i) a customary legal opinion of the Senior Executive Vice President and General Counsel or Vice President, Associate General Counsel and Assistant Secretary of the Borrower substantially in the form of Exhibit D hereto and (ii) a customary legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Agent, as to the enforceability of this Agreement and the Notes. (g) The Agent shall have received an officer’s certificate dated as of the Closing Date from the Borrower that there has been no change to the matters previously certified pursuant to Sections 3.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in Sections 3.02(b) and (h) have been satisfied as of the Closing Date. (h) (i) There shall exist no Specified Default and (ii) each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case at the time of, and after giving effect to, the making of the Advances on the Closing Date. (i) The Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials2.02(a). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Term Loan Credit Agreement (At&t Inc.)

Conditions Precedent to Closing Date. The obligation of ~~each Lender~~ the Lenders to make ~~an Advance~~ Advances on the Closing Date is subject to the satisfaction (with the Administrative Agent acting reasonably in assessing whether the conditions precedent are satisfactory) (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the ~~Shire~~ Synergy Acquisition is effected by way of a Scheme, the Administrative Agent (or its counsel) shall have received: (i) a certificate of the Borrower signed by a an officer or director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of ~~Shire~~Synergy; (2) the date on which the Court has sanctioned the Scheme and ~~that~~ the ~~Court Order~~ Borrower has ~~been~~ duly delivered to the ~~Registrar in accordance with Article 125(3) of the Jersey Companies Law~~Post-Sanction Notice; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme~~), (f~~) and (~~i) (to the extent relating to the Scheme~~f) below; and (4) each copy of the documents specified in ~~paragraphs~~ paragraph (ii~~) and (iii~~) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or a court of competent jurisdiction or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which ~~is consistent in all material respects~~ complies with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court requirements of ~~competent jurisdiction or are not prohibited by the Loan Documents~~Section 5.01(k)(iv). (c) If the ~~Shire~~ Synergy Acquisition is effected by way of a Takeover Offer, the Administrative Agent (or its counsel) shall have received: (i) a certificate of the Borrower signed by a an officer or director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of ~~Shire~~Synergy; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer~~), (f~~) and (~~i) (to the extent relating to the Takeover Offer~~f) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which ~~is consistent in all material respects~~ complies with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents.requirements of Section 5.01(k)(iv); and (d) On the ~~date of the applicable borrowing request and on the proposed date of such borrowing~~ Closing Date (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true and correct or, if a Certain Funds Representation does not include a materiality concept, true and correct in all material respects. (e) Where the ~~Shire~~ Synergy Acquisition is to be implemented by way of a Scheme, each of the ~~Shire~~ Synergy Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the ~~Shire~~ Synergy Acquisition in all material respects in accordance with the terms and conditions of the Scheme ~~Documents~~ Documents; provided that, if the conditions precedent to the Synergy Acquisition speci- fied in the Press Release at Appendix 2 “Conditions of the Offer” Section 2 (~~it being understood that substantially concurrently shall include~~ a) through (e), other than the ~~payment for Scheme Shares being made~~ Post-Sanction Conditions, have been satisfied or waived and the ~~Company Merger being consummated no more than~~ Borrower delivers a notice (the “Post-Sanction Notice”) in writing to the Administrative Agent confirming satisfaction or waiver of such conditions, then the condition precedent in this clause (e) shall be deemed to have been satisfied subject to the satisfaction of the Post-Sanction Conditions within two Business Days ~~after the initial Advance hereunder)~~ following delivery of such notice or, where the ~~Shire~~ Synergy Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required ~~pursuant to~~ by the City ~~Code or~~ Code, the Panel or a court of competent jurisdiction or are not prohibited by the Loan Documents; provided, however, that any increase in the Cash Consideration composed of Equity Interests of New HoldCo shall not be deemed to be materially adverse to the interests of the Lenders. (f) All fees and other amounts due and payable by the ~~Borrower, AbbVie~~ Borrower and ~~their Subsidiaries~~ STERIS to the Arranger, the Administrative Agent and the Lenders under the Loan Documents shall have been paid, or ~~pursuant to any fee or similar letters relating to the Loan Documents~~ substantially simultaneously shall be paid, to the extent invoiced at least ~~one~~ three Business ~~Day~~ Days prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. . (g) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (gh) The Administrative Agent (or its counsel) shall have received on or before the Closing Date: (i) certified copies of the resolutions or similar authorizing documentation of the governing bodies of each of the Guarantors that has acceded before or is acceding on the Closing Date (other than STERIS) authorizing the Acquisitions and such Person to enter into and perform its obligations under the Loan Documents to which it is a party; (ii) a good standing certificate or similar certificate dated a date reasonably close to the Closing Date from the jurisdiction of formation of the Guarantors that have acceded before or are acceding on the Closing Date (other than STERIS and New HoldCo), but only where such concept is applicable; (iii) a customary certificate of the Guarantors that have acceded before or are acceding on the Closing Date (other than STERIS) certifying the names and true signatures of the officers of the Guarantors authorized to sign this Agreement and the other documents to be delivered by them hereunder; and (iv) a favorable opinion letter of legal counsel to the Guarantors that have acceded before or are acceding on the Closing Date (other than STERIS), in each case in form and substance substantially similar, with applicable changes, to the opinion letters delivered on the Effective Date. (i) With respect to the funding obligation of any affected Lender, it is not illegal for such Lender to make such Advance hereunder, provided that such Lender has used commercially reasonable efforts to make the Advance through an Affiliate of such Lender not subject to such legal restriction. (j) The Administrative Agent shall have ~~received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending~~ received, on ~~the last day of the most recently completed four-fiscal quarter period ended at least 45 days~~ or prior to the Closing Date, ~~prepared after giving effect~~ so long as requested no less than 5 Business Days prior to the ~~Transactions as if~~ Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the ~~Transactions had occurred as of such date~~ Patriot Act, in each case relating to the Guarantors that have acceded before or are acceding on the Closing Date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financialsother than STERIS). (hk) It The Administrative Agent (or its counsel) shall have received from each Guarantor that has acceded before or is ~~not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of~~ acceding on the ~~Advances or restricting the application of the proceeds thereof.~~ Closing Date (other than STERIS) either (i) ~~After giving effect~~ a joinder to this Agreement and the other Loan Documents signed on behalf of such party or (ii) written evidence reasonably satisfactory to the ~~consummation of the Scheme,~~ Administrative Agent (which may include .pdf or ~~if the Shire Acquisition is implemented by way~~ facsimile transmission of a ~~Takeover Offer after giving effect to the initial purchase~~ signed signature page of ~~Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders~~ this Agreement) that such party has signed a counterpart of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCothis Agreement. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~the conditions precedent in this Section 3.02 being satisfied (or waived in accordance with Section 9.01), and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: 364 Day Bridge Credit Agreement (Steris Corp)

Conditions Precedent to Closing Date. The obligation of each Lender to make an Advance on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the Shire Acquisition is effected by way of a Scheme, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the The Certain Funds Representations ~~are~~ shall be true and correct (or, if a Certain Funds Representation does not include a materiality concept, true and correct in all material respects) when made or deemed to be made, except to the extent that such Certain Funds Representations specifically refer to an earlier date, in which case they shall be true and correct (or, if a Certain Funds Representation does not include a materiality concept, true and correct in all material respects) as of such earlier date. (ec) ~~Where~~ No Certain Funds Event of Default has occurred and is continuing or would result from the ~~Shire~~ proposed Borrowings. (d) If the Acquisition ~~is to be implemented~~ has proceeded by way of a Scheme, ~~each of~~ the ~~Shire Acquisition and the Company Merger~~ Borrower shall have ~~been, or substantially concurrently with~~ provided to the ~~occurrence of the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions~~ Administrative Agent: (i) a copy of the Scheme ~~Documents~~ Documents; (~~it being understood~~ ii) a copy of the Court Order; and (iii) evidence that ~~substantially concurrently shall include~~ the ~~payment for Scheme Shares being made and~~ Court Order has been delivered to Companies House. (e) If the ~~Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire~~ Acquisition ~~is to be implemented~~ has proceeded by way of ~~a Takeover~~ an Offer, the ~~Takeover Offer~~ Borrower shall have ~~become unconditional in accordance with~~ provided to the ~~terms~~ Administrative Agent: (i) a copy of the Offer ~~Document and~~ Press Release; (ii) a copy of the ~~shares in AbbVie NewCo to be issued~~ Offer Document; and (iii) a certificate of a Responsible Officer of the Borrower confirming that the conditions to the ~~Shire shareholders pursuant to the terms of the Takeover~~ Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests satisfied or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documentswaived. (f) ~~All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries~~ The Borrower shall have provided to ~~the Arranger,~~ the Administrative Agent ~~and~~ copies of mandatory competition clearances in the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing Key Jurisdiction(s) in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day respect of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date Acquisition (~~in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the~~ where “~~Pro Forma Financials”~~Key Jurisdiction(s), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. ” means (i) ~~After giving effect~~ if the Borrower has requested the European Commission to review the Acquisition, the European Union, or (ii) if the Borrower has not requested the European Commission to review the Acquisition (or there is an objection by any of the United Kingdom, the Netherlands or Germany to the ~~consummation~~ Borrower’s request for review), then each of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company MergerUnited Kingdom, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of Netherlands and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and bindingGermany).

Appears in 1 contract

Sources: Bridge Credit Agreement (Equinix Inc)

Conditions Precedent to Closing Date. ~~The obligation~~ This Agreement shall become effective on and as of the date (the "Closing Date"), on which each ~~Lender to make an Advance on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 9.01)~~ of the following ~~conditions~~conditions precedent shall have been satisfied: (a) ~~The Effective Date~~ No Material Adverse Change shall have ~~occurred~~occurred since January 31, 1998. (b) If There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of their properties, including any Environmental Action, pending or to the ~~Shire Acquisition is effected by way~~ best of ~~a Scheme~~the Borrowers' knowledge, ~~the Administrative Agent shall have received:~~ threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a certificate of the Borrower signed by a director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d)Material Adverse Effect, ~~(e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs~~ or (ii) ~~and (iii) below is correct and complete and has not been amended~~ purports to affect the legality, validity or ~~superseded on~~ enforceability of this Agreement, any Note, any other Loan Document, any Related Document or ~~prior to~~ the ~~Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy~~ consummation of the Scheme Circular which is consistent in all material respects with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documentstransactions contemplated hereby. (c) ~~If the Shire Acquisition is effected by way of a Takeover Offer,~~ The Borrowers shall have paid to the Administrative Agent ~~shall have received: (i) a certificate~~ all reasonable accrued fees of the ~~Borrower signed by a director certifying:~~ Agents and the Lenders (1) including the ~~date on which~~ upfront fee to be paid with respect to this Agreement and the ~~Takeover Offer Document was posted~~ accrued fees and expenses of counsel to the ~~shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d~~Administrative Agent), (e) (to the extent relating to the Takeover Offer), (f) and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) ~~On the date of the applicable borrowing request~~ All governmental and ~~on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing~~ third party consents and ~~(y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true~~ approvals necessary in ~~all material respects. (e) Where the Shire Acquisition is to be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger~~ connection with this Agreement shall have ~~been~~been obtained (without the imposition of any conditions other than those that are reasonably acceptable to the Administrative Agent) and shall remain in effect, and all applicable waiting periods shall have expired without any action being taken by any competent authority and no law or ~~substantially concurrently with the occurrence of the Closing Date~~ regulation shall bebe applicable, ~~consummated~~ in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent reasonable judgment of the Administrative Agent, ~~except~~that restrains, ~~in each case, to the extent such modifications, amendments, consents, requests~~ prevents or ~~waivers have been required pursuant to the City Code~~ imposes adverse conditions upon this Agreement or ~~the Panel or are not prohibited by the Loan Documents~~any related transactions. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (ge) The Administrative Agent shall have received on or before the Closing Date the following, each dated the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) The Notes to the order of the Lenders. (ii) Certified copies of the resolutions of the Board of Directors of each Borrower and of each other Loan Party approving this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a ~~pro forma consolidated balance sheet~~ party, and ~~related pro forma consolidated statement~~ of ~~income~~ all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Notes, each other Loan Document and each Related Document. (iii) A copy of ~~AbbVie NewCo~~ the charter of each Borrower and ~~its Subsidiaries~~ of each other Loan Party and each amendment thereto, certified (as of ~~and for~~ a date reasonably near the ~~twelve-month period ending on the last day~~ date of the ~~most recently completed four-fiscal quarter period ended at least 45 days prior to~~ initial Borrowing) by the Secretary of State of the State of their respective states of incorporation or organization as being a true and correct copy thereof. (iv) A copy of a certificate of the Secretary of State of the State of their respective states of incorporation or organization, dated reasonably near the Closing Date, ~~prepared after giving effect~~ listing the charter or other organizational documents of each Borrower and of each other Loan Party and each amendment thereto on file in his office and certifying that (A) such amendments are the only amendments to the ~~Transactions as if~~ Borrowers' or such other Loan Party's charter or other organizational documents on file in his office, (B) each Borrower and each other Loan Party have paid all franchise taxes to the ~~Transactions had occurred as~~ date of such ~~date~~ certificate and (C) each Borrower and each other Loan Party are duly incorporated or organized and in good standing under the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents laws of the ~~Pro Forma Financials)~~State of their respective states of incorporation or organization. (hv) ~~It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion~~ A copy of a certificate of the ~~Advances or restricting the application~~ Secretary of State of the ~~proceeds thereof~~Commonwealth of Pennsylvania, dated reasonably near the Closing Date, stating that GNCI is duly qualified and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate. (ivi) ~~After giving effect~~ A certificate of each of the Borrowers and each other Loan Party, signed on behalf of each Borrower or such other Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in such certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the ~~consummation~~ charter or other organizational documents of such Borrower or such other Loan Party since the date of the ~~Scheme~~Secretary of State's certificate referred to in Section 3.01(e)(iv), ~~or if~~ (B) the ~~Shire Acquisition is implemented by way~~ truth and accuracy of ~~a Takeover Offer after giving effect to~~ the ~~initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness~~ bylaws of such ~~Scheme~~ Borrower or ~~purchase pursuant~~ such other Loan Party as in effect on the Closing Date (a copy of which shall be attached to such ~~Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0%~~ certificate), (C) the due incorporation or organization and good standing of ~~both~~ such Borrower or such other Loan Party as a corporation or limited partnership organized under the ~~voting interests~~ laws of ~~and value~~ the State of ~~AbbVie NewCo. The Administrative Agent shall notify the Borrower~~ its respective state of incorporation or organization, and the ~~Lenders~~ absence of any proceeding for the dissolution or liquidation of such Borrower or such other Loan Party, (D) the truth and accuracy of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date and (E) the absence of any event occurring and continuing, or resulting from the initial Borrowing, that constitutes a Default. (vii) A certificate of the Secretary or an Assistant Secretary of each Borrower and of each other Loan Party certifying the names and true signatures of the officers of such Borrower and of such other Loan Party authorized to sign this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be parties and the other documents to be delivered hereunder and thereunder. (viii) A guaranty in substantially the form of Exhibit D hereto (as ~~soon~~ amended, supplemented or otherwise modified from time to time in accordance with its terms, the "Parent Guaranty"), duly executed by GNCI and GNI and a guaranty in substantially the form of Exhibit E hereto (as ~~practicable upon~~ amended, supplemented or otherwise modified from time to time in accordance with its ~~occurrence~~terms, the "Subsidiary Guaranty"), duly executed by each Subsidiary Guarantor. (ix) Certified copies of each of the Related Documents, duly executed by the parties thereto and ~~such notice~~ in form and substance reasonably satisfactory to the Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith. (x) Such financial, business and other information regarding the Borrowers and each other Loan Party as the Administrative Agent shall ~~be conclusive~~ have reasonably requested, including, without limitation, (A) information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and ~~binding~~under Plans, Multiemployer Plans, Welfare Plans and collective bargaining agreements, (B) annual audited financial statements for the Fiscal Year ended January 31, 1998 of GNCI, (C) interim financial statements dated the end of the most recent Fiscal Quarter for which financial statements of GNCI are available and (D) forecasts prepared by management of GNCI, in form and substance satisfactory to the Administrative Agent, of balance sheets, income statements and cash flow statements on an annual basis through Fiscal Year 2002.

Appears in 1 contract

Sources: Term Credit Agreement (General Nutrition Companies Inc)

Conditions Precedent to Closing Date. The obligation of each Lender to make an Advance ~~on the Closing Date is~~ shall be subject to all of the ~~satisfaction~~ following conditions precedent having been satisfied (or ~~waiver~~ waived in accordance with Section ~~9.01~~8.01) of on or before the ~~following conditions~~Commitment Termination Date: (a) The Effective Date shall have occurred. (b) If (i) The Acquisition shall have been, or substantially concurrently with the ~~Shire~~ funding of the Advances shall be, consummated in accordance with the terms of the Acquisition Agreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified, and no consent by the Borrower or any of its Subsidiaries shall have been provided thereunder, in each case which is ~~effected by way~~ materially adverse to the interests of ~~a Scheme~~the Lenders without the Joint Bookrunners' prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that, (w)(i) any increase in the ~~Administrative~~ non-cash portion of the purchase consideration and (ii) any decrease in the non-cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall in each case be deemed not materially adverse to the Lenders, (x) any decrease in the cash portion of the purchase consideration for the Acquisition shall be deemed not materially adverse to the Lenders so long as it shall have been allocated to reduce the Commitments in an amount equal to such reduction in the cash portion of the purchase consideration and (y) any increase or decrease in the cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall be deemed not materially adverse to the Lenders. The Agent shall have ~~received:~~received from the Borrower certified copies of the Acquisition Agreement and all amendments, modifications, waivers and consents, if applicable, under the Acquisition Agreement. (c) Except as set forth in the corresponding sections or subsections of the Company Disclosure Letter (as defined in the Acquisition Agreement) (it being understood that any disclosure set forth in one section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to, and shall be deemed to apply to and qualify, the section or subsection of the Acquisition Agreement to which it corresponds in number and each other section or subsection of the Acquisition Agreement to the extent the qualifying nature of such disclosure with respect to such other section or subsection is reasonably apparent on the face of such disclosure) or, to the extent the qualifying nature of such disclosure with respect to a specific representation and warranty is reasonably apparent therefrom, as set forth in the Company Reports (as defined in the Acquisition Agreement) filed on or after January 1, 2016 and prior to the date of the Acquisition Agreement (excluding all disclosures (other than statements of historical fact) in any "Risk Factors" section and any disclosures included in any such Company Reports that are cautionary, predictive or forward looking in nature), since December 31, 2015 there shall not have been any change, effect, circumstance or development which has had or would, individually or in the aggregate, reasonably be likely to have a Target Material Adverse Effect. (d) The Joint Bookrunners shall have received (i) ~~a certificate~~ audited consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Borrower ~~signed by a director certifying: (1)~~ and its Subsidiaries for the date on which the Scheme Circular was posted to the shareholders of Shire; (2) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or last three full fiscal years ended at least 75 days prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which is consistent in all material respects with the terms and ~~conditions in the Press Release~~ unaudited consolidated and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent shall have received: (i) a certificate of the Borrower signed by a director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of Shire; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent ~~relating to the Takeover Offer)~~available) consolidating balance sheets and related statements of income, ~~(f)~~ comprehensive income and ~~(i) (to the extent relating to the Takeover Offer) below; (3) each copy~~ cash flows of the ~~documents specified in paragraph (ii) below is correct~~ Borrower and ~~complete and has not been amended~~ its Subsidiaries for each subsequent fiscal quarterly interim period or ~~superseded on or~~ periods ended at least 40 days prior to the Closing ~~Date~~Date (and the corresponding period(s) of the prior fiscal year) (other than the last fiscal quarter of any fiscal year), ~~except~~ which shall have been reviewed by the independent accountants for the Borrower as provided in Statement of Auditing Standards No. 100, and prepared in accordance with the requirements of Form 10-K and 10-Q under the Securities Act and under Regulation S-X under the Securities Act (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the Borrower of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period); and (ii) to the extent ~~such changes thereto~~ as would be required by Rule 3-05 and Article 11 of Regulation S-X if the Permanent Financings were registered on Form S-1 under the Securities Act on the Closing Date, (A) audited consolidated annual balance sheets and related statements of income, comprehensive income and cash flows of the Target, as well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Target (which shall have been ~~required pursuant to the City Code or required~~ reviewed by the ~~Panel or are not prohibited~~ independent accountants for the Target as provided in Statement of Auditing Standards No. 100) and prepared in accordance with GAAP (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the ~~Loan Documents; and~~ Target of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period) and (4B) ~~that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver~~ pro forma financial statements of the ~~conditions to~~ Borrower reflecting the ~~Takeover Offer or~~ Transactions, which meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the ~~Acceptance Condition except~~ SEC promulgated thereunder applicable to ~~the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent~~ registration statements on Form S-1, in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true or, if a Certain Funds Representation does not include a materiality concept, true each case in all material respects. (e) ~~Where~~ All costs, fees, expenses (including legal fees and expenses) to the ~~Shire Acquisition is~~ extent invoiced at least three Business Days prior to ~~be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of~~ the Closing Date shall be, consummated in the case of the Shire Acquisition in all material respects in accordance with the terms and conditions of the Scheme Documents (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the ~~Company Merger being consummated no more than two Business Days after~~ fees payable pursuant to Section 2.03 to the ~~initial Advance hereunder) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer~~Joint Bookrunners, the ~~Takeover Offer~~ Agent or the Lenders shall have ~~become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued~~ been paid on or prior to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, exceptClosing Date, in each case, to the extent ~~such modifications, amendments, consents, requests or waivers have been~~ required ~~pursuant~~ by this Agreement to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents or pursuant to any fee or similar letters relating to the Loan Documents shall be ~~paid, to the extent invoiced at least one Business Day prior to the Closing Date by the relevant person and to the extent such amounts are payable~~ paid on or prior to the Closing Date. . (f) The ~~Administrative~~ Agent shall have received (i) a customary legal opinion of the Senior Executive Vice President and General Counsel or Vice President, Associate General Counsel and Assistant Secretary of the Borrower substantially in the form of Exhibit D hereto and (ii) a customary legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Agent, as to the enforceability of this Agreement and the Notes. (g) The Agent shall have received an officer's certificate dated as of the Closing Date from the Borrower that there has been no change to the matters previously certified pursuant to Sections 3.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in Sections 3.02(b) and (h) have been satisfied as of the Closing Date. (h) (i) There shall exist no Specified Default and (ii) each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case at the time of, and after giving effect to, the making of the Advances on the Closing Date. (i) The Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials2.02(a). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Term Loan Credit Agreement (At&t Inc.)

Conditions Precedent to Closing Date. The obligation of each Lender to make ~~an Advance~~ Advances on the Closing Date is subject to the satisfaction (with the Administrative Agent acting reasonably in assessing whether the conditions precedent have been satisfied) (or waiver in accordance with Section 9.01) of the following conditions: (a) The Effective Date shall have occurred. (b) If the ~~Shire~~ Synergy Acquisition is effected by way of a Scheme, the Administrative Agent (or its counsel) shall have received: (i) a certificate of the ~~Borrower~~ Borrowers signed by a an officer or director certifying: (1) the date on which the Scheme Circular was posted to the shareholders of ~~Shire~~Synergy; (2) the date on which the Court has sanctioned the Scheme and ~~that~~ the ~~Court Order has been~~ Borrowers have duly delivered to the ~~Registrar in accordance with Article 125(3) of the Jersey Companies Law~~Post-Sanction Notice; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme~~), (f~~) and (~~i) (to the extent relating to the Scheme~~f) below; and (4) each copy of the documents specified in ~~paragraphs~~ paragraph (ii~~) and (iii~~) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or a court of competent jurisdiction or to the extent not prohibited by the Loan Documents; and (ii) a copy of the Scheme Circular which ~~is consistent in all material respects~~ complies with the terms and conditions in the Press Release and the Scheme Resolutions, in each case, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court requirements of ~~competent jurisdiction or are not prohibited by the Loan Documents~~Section 5.01(k)(iv). (c) If the ~~Shire~~ Synergy Acquisition is effected by way of a Takeover Offer, the Administrative Agent (or its counsel) shall have received: (i) a certificate of the ~~Borrower~~ Borrowers signed by a an officer or director certifying: (1) the date on which the Takeover Offer Document was posted to the shareholders of ~~Shire~~Synergy; (2) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Takeover Offer~~), (f~~) and (~~i) (to the extent relating to the Takeover Offer~~f) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which ~~is consistent in all material respects~~ complies with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents.requirements of Section 5.01(k)(iv); and (d) On the ~~date of the applicable borrowing request and on the proposed date of such borrowing~~ Closing Date (x) no Certain Funds Default is continuing or would result from the proposed Borrowing and (y) all the Certain Funds Representations are true and correct or, if a Certain Funds Representation does not include a materiality concept, true and correct in all material respects. (e) Where the ~~Shire~~ Synergy Acquisition is to be implemented by way of a Scheme, each of the ~~Shire~~ Synergy Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of the Closing Date shall be, consummated in the case of the ~~Shire~~ Synergy Acquisition in all material respects in accordance with the terms and conditions of the Scheme ~~Documents~~ Documents; provided that, if the conditions precedent to the Synergy Acquisition specified in the Original Press Release at Appendix 2 “Conditions of the Offer” Section 2 (~~it being understood that substantially concurrently shall include~~ a) through (e), other than the ~~payment for Scheme Shares being made~~ Post-Sanction Conditions, have been satisfied or waived and the ~~Company Merger being consummated no more than~~ Borrowers deliver a notice (the “Post-Sanction Notice”) in writing to the Administrative Agent confirming satisfaction or waiver of such conditions, then the condition precedent in this clause (e) shall be deemed to have been satisfied subject to the satisfaction of the Post-Sanction Conditions within two Business Days ~~after the initial Advance hereunder)~~ following delivery of such notice or, where the ~~Shire~~ Synergy Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the ~~Borrower~~ Borrowers (or ~~its~~ their applicable ~~affiliate~~Affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required ~~pursuant to~~ by the City ~~Code or~~ Code, the Panel or a court of competent jurisdiction or are not prohibited by the Loan Documents; provided, however, that any increase in the Cash Consideration composed of Equity Interests of New HoldCo shall not be deemed to be materially adverse to the interests of the Lenders. (f) All fees and other amounts due and payable by any of the ~~Borrower, AbbVie and their Subsidiaries~~ Borrowers to ~~the~~ each Joint Lead Arranger, the Administrative Agent and the Lenders under the Loan Documents shall have been paid, or ~~pursuant to any fee or similar letters relating to the Loan Documents~~ substantially simultaneously shall be paid, to the extent invoiced at least ~~one~~ three Business ~~Day~~ Days prior to the Closing Date by the relevant person and to the extent such amounts are payable on or prior to the Closing Date. . (g) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02. (gh) The Administrative Agent (or its counsel) shall have received on or before the Closing Date: (i) certified copies of the resolutions or similar authorizing documentation of the governing bodies of each of the Closing Date Guarantors authorizing the Acquisitions and such Person to enter into and perform its obligations under the Loan Documents to which it is a party; (ii) a good standing certificate or similar certificate dated a date reasonably close to the Closing Date from the jurisdiction of formation of the Closing Date Guarantors, but only where such concept is applicable; (iii) a customary certificate of each Closing Date Guarantor certifying the names and true signatures of the officers of such Closing Date Guarantor authorized to sign this Agreement and the other documents to be delivered by it hereunder; and (iv) a favorable opinion letter of legal counsel to the Closing Date Guarantors, in each case in form and substance substantially similar, with applicable changes, to the opinion letters delivered on the Effective Date. (i) With respect to the funding obligation of any affected Lender, it is not illegal for such Lender to make such Advance hereunder, provided that such Lender has used commercially reasonable efforts to make the Advance through an Affiliate of such Lender not subject to such legal restriction. (j) The Administrative Agent shall have received, on or prior to the Closing Date, so long as requested no less than 5 Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case relating to the Guarantors that have acceded before or are acceding on the Closing Date (other than the Effective Date Guarantors). (k) The Administrative Agent (or its counsel) shall have received from each Closing Date Guarantor either (i) a joinder to this Agreement and the other Loan Documents signed on behalf of such party substantially in the form of Exhibit D or any other form agreed by the Administrative Agent or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include .pdf or facsimile transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement. (l) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (Delayed Draw Notice in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCoaccordance with Section 2.05. The Administrative Agent shall notify the ~~Borrower~~ Borrowers and the Lenders of the Closing Date ~~as soon as practicable~~ in writing promptly upon ~~its occurrence~~the conditions precedent in this Section 3.02 being satisfied (or waived in accordance with Section 9.01), and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: 364 Day Bridge Credit Agreement (Steris Corp)

Conditions Precedent to Closing Date. ~~The obligation of each~~ No Lender ~~to make an Advance~~ shall be required or obligated on the Closing Date ~~is subject~~ to make any Advance, and no Issuing Bank shall be required or obligated to make L/C Credit Extensions, in each case until the first Business Day on which the following conditions precedent have been satisfied (or waived, as evidenced by an "effective date" notice to the ~~satisfaction~~ Borrower from each Issuing Bank and the Administrative Agent), as determined by each Lender and each such Issuing Bank (provided that if the Closing Date does not occur on or ~~waiver in accordance with Section 9.01)~~ before May 31, 2006, the Commitments of the ~~following conditions:~~Lender Parties shall terminate on such date): (a) The ~~Effective Date~~ Administrative Agent's receipt of the following, each of which shall ~~have occurred.~~ be originals or facsimiles (bfollowed promptly by originals) If (unless otherwise specified), each properly executed by a Responsible Officer of the ~~Shire Acquisition is effected by way~~ Borrower, each dated the date of the Initial Borrowing (the "Closing Date") (or, in the case of certificates of governmental officials, a ~~Scheme,~~ recent date before the ~~Administrative~~ Closing Date) and each in form and substance satisfactory to the Lender Parties (unless otherwise specified) and in sufficient copies for each Agent ~~shall have received:~~and the Borrower (unless otherwise specified): (i) five (5) executed counterparts of this Agreement; (ii) to the extent requested, duly executed Notes of the Borrower for the account of each Lender that has so requested complying with the provisions of Section 2.14; (iii) a security agreement in substantially the form of Exhibit D hereto (the "Security Agreement"), duly executed by the Borrower, together with: (A) proper financing statements, duly completed for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect and protect the liens and security interests created under the Collateral Documents in favor of the Secured Parties, covering the Collateral described in the Collateral Documents; (B) results of lien searches, dated on or no earlier than 45 days before the Closing Date, for existing financing statements filed in the jurisdictions referred to in Section 3.01(a)(iii)(A) that name the Borrower as debtor, together with copies of all such financing statements; and (C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interests in favor of the Secured Parties created under the Security Agreement and the Account Control Agreements (both before and after giving effect to the Closing Date Transactions), other than the Other Perfection Requirements, has been taken; (iv) an amendment to each Amended and Restated Mortgage (in recordable form and otherwise in form and substance satisfactory to the Administrative Agent) (collectively, the "Amendments"), duly executed and delivered by the Borrower, so as to create or ensure the continued effectiveness of the Liens created thereby, all as determined by the Administrative Agent and its counsel, together with: (A) confirmation from Chicago Title Insurance Company or such other title insurers acceptable to the Administrative Agent recording the Amendments that duly executed counterparts of such Amendments that are sufficient for recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create or continue valid and subsisting Liens on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties have been delivered to Chicago Title Insurance Company or such other title insurer, and evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees have been paid; (B) a fully paid "date down" endorsement to each Mortgage Policy for the properties encumbered by the Amended and Restated Mortgages, as amended by the Amendments, in form and substance acceptable to the Administrative Agent, dated the Closing Date and issued by Chicago Title Insurance Company, which (1) states, among other things, that since the effective date of the applicable Mortgage Policy, there have been no changes in the state of title, including no new Liens that do not constitute Permitted Encumbrances (as defined in the applicable Amended and Restated Mortgage, as amended by the Amendment thereto) and (2) shall reduce the liability amounts under the Mortgage Policies to an amount equal to $500,000,000 in the aggregate, which amount shall be allocated among the Mortgage Policies as determined by the Administrative Agent. (C) at the Administrative Agent's option, affidavits of the Borrower, dated as of the Closing Date, certifying to the Administrative Agent, the Collateral Agent, the Lender Parties and the title insurance company recording the Amendments that there have been no changes, replacements or additions to the improvements on the properties described in the Amended and Restated Mortgages as amended by the Amendments, which encroach upon the property or rights of others, which violate any setback or other zoning requirements or which violate any agreements of the Borrower, and otherwise in form and substance satisfactory to the Administrative Agent; and (D) evidence that all action (including payment by the Borrower of all title search expenses, title insurance premiums, recording fees, mortgage recording taxes and like taxes) that the Administrative Agent may deem necessary or desirable in order to preserve, perfect and protect the liens and security interests created under the Collateral Documents (other than the Other Perfection Requirements) securing all Obligations of the Borrower under the Financing Documents have been taken; (v) a Deposit Account Control Agreement in substantially the form of Exhibit H hereto (as amended, the "PNC Control Agreement"), duly executed by the Borrower and PNC Bank, National Association; (vi) certified copies of resolutions of the board of directors of the Borrower approving the Transactions and the execution, delivery and performance of each Financing Document to which the Borrower is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Financing Document to which the Borrower is or is to be a party; (vii) copies of a certificate of the Secretary of State of Delaware, certifying (A) as to a true and correct copy of the certificate of formation of the Borrower ~~signed by a director certifying:~~ and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such certificate on file in such Secretary's office, (2) the Borrower has paid all franchise taxes to the date of such certificate and (3) the Borrower is duly formed and in good standing or presently subsisting under the laws of the State of Delaware; (viii) copies of a certificate of the Secretary of State of each jurisdiction (other than the jurisdiction of its formation) set forth in Schedule 3.01(a) which shall be each jurisdiction where the Borrower conducts a material portion of its business stating that the Borrower is duly qualified to do business and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, as applicable; (ix) a certificate signed on behalf of the Borrower by its secretary or any assistant secretary (the statements made in which certificate shall be true on and as of the Closing Date), certifying (A) as to a true and correct copy of the Constituent Documents of the Borrower as of the Closing Date and each amendment to its Constituent Documents, if any, from the date on which the ~~Scheme Circular was posted~~ resolutions referred to ~~the shareholders of Shire; (2~~in Section 3.01(a)(vi) the date on which the Court has sanctioned the Scheme and that the Court Order has been duly delivered to the Registrar in accordance with Article 125(3) of the Jersey Companies Law; (3) as to the satisfaction of each condition set forth in clauses (d), (e) (to the extent relating to the Scheme), (f) and (i) (to the extent relating to the Scheme) below; and (4) each copy of the documents specified in paragraphs (ii) and (iii) below is correct and complete and has not been amended or superseded on or prior were adopted to the Closing Date, ~~except~~ (B) the absence of any proceeding for the dissolution or liquidation of the Borrower and (C) the names and true signatures of the officers of the Borrower authorized to sign each Financing Document to which it is or is to be a party and the ~~extent such changes thereto have been required pursuant~~ other documents to ~~the City Code or required by the Panel or to the extent not prohibited by the Loan Documents; and~~be delivered hereunder and thereunder; (iix) ~~a copy~~ forecasts prepared by management of the ~~Scheme Circular which is consistent in all material respects with~~ Borrower of balance sheets, income statements and cash flow statements of the ~~terms and conditions in the Press Release and the Scheme Resolutions, in each case, except~~ Borrower reasonably acceptable to the extent changes thereto have been required pursuant to the City Code or required by the Panel or by a court of competent jurisdiction or are not prohibited by the Loan Documents. (c) If the Shire Acquisition is effected by way of a Takeover Offer, the Administrative Agent ~~shall have received:~~on a consolidated basis for each fiscal quarter commencing with the fiscal quarter ending March 31, 2006 through the fiscal quarter ending December 31, 2010; (ixi) legal opinions of appropriate counsel for the Borrower, as to such matters as any Lender may reasonably request; (xii) a ~~certificate~~ legal opinion of Shearman & Sterling LLP, counsel to the Administrative Agent, as to such matters as the Administrative Agent may reasonably request; (xiii) certificates signed by a Responsible Officer of the Borrower ~~signed by a director certifying:~~ to the effect that (1A) the representations and warranties contained in Article IV are true and correct on and as of the Closing Date as though made on and as of such date ~~on which the Takeover Offer Document was posted~~ both immediately before and immediately after giving effect to the ~~shareholders~~ consummation of ~~Shire;~~ that portion of the Transactions being effected on the Closing Date (~~2) as to~~ the ~~satisfaction of each condition set forth in clauses (d~~"Closing Date Transactions")~~, (e) (to the extent relating to the Takeover Offer), (f)~~ ; and (i) (to the extent relating to the Takeover Offer) below; (3) each copy of the documents specified in paragraph (ii) below is correct and complete and has not been amended or superseded on or prior to the Closing Date, except to the extent such changes thereto have been required pursuant to the City Code or required by the Panel or are not prohibited by the Loan Documents; and (4) that the Takeover Offer has been declared unconditional in all respects without any material amendment, modification or waiver of the conditions to the Takeover Offer or of the Acceptance Condition except to the extent not prohibited by the Loan Documents. (ii) a copy of the Takeover Offer Document which is consistent in all material respects with the terms and conditions in the Offer Press Announcement, except to the extent changes thereto have been required pursuant to the City Code or required by the Panel or are permitted under the Loan Documents. (d) On the date of the applicable borrowing request and on the proposed date of such borrowing (xB) no ~~Certain Funds~~ Default has occurred and is continuing or would result from the ~~proposed~~ Initial Borrowing or would result from the consummation of the Closing Date Transactions; and (xiv) audited Consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending December 31, 2005. (yb) ~~all~~ All Governmental Approvals and third party consents and approvals necessary in connection with the ~~Certain Funds Representations are true or~~Transactions shall have been obtained and be in full force and effect; and the Administrative Agent shall have received evidence satisfactory to it that the foregoing have been accomplished. (c) Except for Disclosed Matters as of the date hereof, ~~if a Certain Funds Representation does~~ since December 31, 2005, there shall not ~~include a materiality concept~~have occurred any Material Adverse Change. (d) All required stamp duties, ~~true~~ registration fees, filing costs and other charges in ~~all material respects~~connection with the execution, delivery, filing, recording, perfection, priority or admissibility in evidence of the Financing Documents, and the security interests purported to be granted by the Financing Documents, required to be paid on or prior to the Closing Date shall have been paid in full or an appropriate exemption therefrom shall have been obtained. (e) ~~Where the Shire Acquisition is~~ All Taxes (i) due and payable on or prior to ~~be implemented by way of a Scheme, each of the Shire Acquisition and the Company Merger shall have been, or substantially concurrently with the occurrence of~~ the Closing Date ~~shall be~~in connection with the execution, ~~consummated~~ delivery, filing, recording or admissibility in ~~the case~~ evidence of the ~~Shire Acquisition~~ Financing Documents or to ensure the legality, validity, enforceability, perfection or admissibility in ~~all material respects in accordance with the terms and conditions~~ evidence of the ~~Scheme~~ Financing Documents and (it being understood that substantially concurrently shall include the payment for Scheme Shares being made and the Company Merger being consummated no more than two Business Days after the initial Advance hereunderii) or, where the Shire Acquisition is to be implemented by way of a Takeover Offer, the Takeover Offer shall have become unconditional in accordance with the terms of the Offer Document and the shares in AbbVie NewCo to be issued to the Shire shareholders pursuant to the terms of the Takeover Offer have been issued and the former Shire shareholders have been registered as the owner of such shares in the register of members of AbbVie NewCo (as applicable) and as promptly as reasonably practicable thereafter the Company Merger shall be consummated, in each case, without giving effect to (and there shall not have been) any modifications, amendments, consents, requests or waivers by the Borrower (or its applicable affiliate) thereunder that are materially adverse to the interests of the Lenders, without the prior written consent of the Administrative Agent, except, in each case, to the extent such modifications, amendments, consents, requests or waivers have been required pursuant to the City Code or the Panel or are not prohibited by the Loan Documents. (f) All fees and other amounts due and payable ~~by the Borrower, AbbVie and their Subsidiaries to the Arranger, the Administrative Agent and the Lenders under the Loan Documents~~ on or ~~pursuant to any fee or similar letters relating to the Loan Documents shall be paid, to the extent invoiced at least one Business Day~~ prior to the Closing Date by the ~~relevant person~~ Borrower or any of its Subsidiaries in connection with the consummation of the transactions contemplated by, and the performance of, the Financing Documents shall, in the case of clauses (i) and (ii) of this Section 3.01(f), have been duly paid in full. (f) The Borrower shall have paid all accrued fees of the Agents, the Lender Parties and the Arranger Parties and all accrued expenses of the Agents to the extent ~~such amounts are payable on or~~ invoiced at least three Business Days prior to the Closing Date~~. The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02~~. (g) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of AbbVie NewCo and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) (the “Pro Forma Financials”), it being acknowledged that neither the Administrative Agent nor any Lender shall have any approval right as regards the form or contents of the Pro Forma Financials). (h) It is not illegal for any Lender to lend and there is no injunction, restraining order or equivalent prohibiting any Lender from lending its portion of the Advances or restricting the application of the proceeds thereof. (i) After giving effect to the consummation of the Scheme, or if the Shire Acquisition is implemented by way of a Takeover Offer after giving effect to the initial purchase of Shire Shares pursuant to the Takeover Offer, immediately after the Company Merger, the holders of Shire Shares immediately prior to the effectiveness of such Scheme or purchase pursuant to such Takeover Offer shall own equity interests in AbbVie NewCo representing more than 20.0% of both the voting interests of and value of AbbVie NewCo. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date as soon as practicable upon its occurrence, and such notice shall be conclusive and binding.

Appears in 1 contract

Sources: Credit Agreement (Allegheny Energy, Inc)

Common use of Conditions Precedent to Closing Date Clause in Contracts