Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2): (a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the Administrative Agent shall have received: (i) a certificate of Bidco signed by a director certifying: (1) the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement); (2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone; (3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies ▇▇▇ ▇▇▇▇ and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ has been issued in relation to the Capital Reduction relating to the Scheme; (4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and (5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; (ii) a copy of each of the Scheme Documents. (iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court; and (iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ and a copy of the order of the Court and minute which is the subject of that certificate. (v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained. (b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received: (i) a certificate of Bidco signed by a director certifying: (1) the date on which the Announcement Date occurred; (2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone; (3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
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Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit Term Loan hereunder shall not become effective until the time and date (such time and date, the “Initial Funding Date”) on which each of the following conditions is satisfied (or waived in accordance with Section 10.29.02); provided that the Initial Funding shall occur no earlier than April 10, 2008 (it being understood and agreed that if on the Initial Funding Date the Transaction Closing Date has not occurred, then the proceeds of the Term Loans shall be deposited directly into the Collateral Account on such date):
(a) If The Administrative Agent shall have received a copy of the Offer Conversion articles or certificate of incorporation (or equivalent organizational document) of the Borrower, certified as of a recent date by the Secretary of State of the state of organization of the Borrower, together with certificates of such official attesting to the good standing of the Borrower;
(b) The Administrative Agent shall have received a certificate, dated the Initial Funding Date, of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of each officer of the Borrower that has been authorized to execute and deliver any Loan Document or other document required hereunder to be executed and delivered by or on behalf of the Borrower, (B) the by-laws (or equivalent organizational document) of the Borrower as in effect on the date of such certification, (C) the resolutions of the Borrower’s board of directors approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, and (D) that there have been no changes in the certificate of incorporation (or equivalent organizational document) of the Borrower from the certificate of incorporation (or equivalent organizational document) delivered pursuant to paragraph (a) above;
(c) The Administrative Agent shall have received, for the account of each Lender requesting the same at least two (2) Business Days prior to the Initial Funding Date, a Promissory Note (which may for purposes of this Section 4.01(c) be a copy delivered by facsimile or electronic “.pdf” transmission to be followed promptly with an original of such Promissory Note by overnight courier or messenger) of the Borrower conforming to the requirements of Section 2.09(e) herein;
(d) The Borrower, Cadbury and their respective Affiliates shall have complied in all material respects (and shall be deemed to have so complied if they have not received written notice of any material non-compliance) with the Fee and Syndication Letter; provided, however, that if, on or prior to the Transaction Funding Date, (i) the Borrower, Cadbury or any such Affiliate failed to comply with Section 3 thereof (other than the requirements set forth in clauses (c) and (d) of the second paragraph and in the last paragraph thereunder) and (ii) the Borrower, Cadbury and/or their respective Affiliates cured such non-compliance within two (2) Business Days of receipt of such notice, then the Borrower shall be deemed to have complied with the Fee and Syndication Letter for purposes of this clause (d);
(e) At least five (5) Business Days prior to the Initial Funding Date, the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested by the Lenders at least ten (10) Business Days prior to the Initial Funding Date;
(f) The Administrative Agent shall have received a favorable written opinion dated the Initial Funding Date (addressed to the Administrative Agent and the Lenders and dated the Initial Funding Date) of Shearman & Sterling LLP, counsel for the Loan Parties, substantially in the form of Exhibit B. The Administrative Agent also shall have received a copy of a written opinion dated the Initial Funding Date (addressed to Cadbury) of Shearman & Sterling LLP, counsel to Cadbury, covering such matters as have been previously agreed between Shearman & Sterling LLP and each of the Bookrunners, in form and substance satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions;
(g) The Administrative Agent shall have received a certificate from a Financial Officer of the Borrower dated the Initial Funding Date certifying that on such date, the Borrower and its subsidiaries (on a consolidated basis) are Solvent, both before, and on a pro forma basis after giving effect to, the Transactions;
(A) The representations and warranties set forth in Sections 3.01(a), 3.02, 3.03, 3.04(a), 3.05, 3.06(a)(i), 3.07, 3.08, 3.09, 3.10, 3.11 and 3.12 shall be true and correct in all material respects on and as of the Initial Funding Date; (B) at the time of and immediately after giving effect to the Borrowing on the Initial Funding Date, (x) no Default as a result of the Borrower’s failure to observe or perform any covenant, condition or agreement contained in Sections 5.02, 5.03(a) (with respect to the Borrower’s existence only), 5.03(b), 5.04, 5.05, 5.08 or in Article VI (other than for avoidance of doubt, Section 6.04) shall have occurred and be continuing, (y) no Event of Default under clause (c) of Article VII with respect to any representation and warranty under Article III made by the Borrower on the Effective Date shall have occurred, and (z) no Event of Default under clauses (h), (i) or (j) of Article VII shall have occurred and be continuing and (C) the Administrative Agent shall have received a certificate, dated the Initial Funding Date and signed by the president, a vice president or Financial Officer of the Borrower, confirming compliance with the conditions contained in clauses (A) and (B) above.
(i) The Index Debt and the corporate ratings of the Borrower shall be rated at least “BBB-”, which rating may be subject to a “negative outlook” from S&P but not subject to “negative watch” or “development” and “Baa3” from M▇▇▇▇’▇, which rating shall be stable and not subject to “negative watch”, “negative outlook” or “development”;
(j) The Borrower has received (i) proceeds from the issuance of the Senior Notes or from borrowings under the Bridge Loan Agreement of at least $2,000,000,000 (less transaction costs and original issue discount incurred in connection therewith) or (ii) commitments to fund the Bridge Loan from the Bookrunners subject only to the satisfaction of conditions substantially similar to those set forth in Section 4.03 of this Agreement;
(k) Each of the Bookrunners shall have received and be satisfied with (i) the audited combined financial statements of the Borrower for the fiscal year ending December 31, 2007, which such audited financial statements may exclude (A) guarantor/non-guarantor financial information and (B) quarterly financial information for completed fiscal periods (it being understood that the financial information for the fiscal years ending December 31, 2006 and January 1, 2006 presented with the financial information for the fiscal year ending December 31, 2007 will be the same in all material respects as that contained in the Registration Statement) (the “Audited Financial Statements”) and (ii) unaudited pro forma combined balance sheets of the Borrower and its Subsidiaries as of December 31, 2007 and unaudited pro forma statement of operations for the fiscal year ended December 31, 2007, adjusted to give effect to the consummation of the Transactions as if such Transactions, with respect to the pro forma combined balance sheets had occurred on December 31, 2007 and with respect to the pro forma statement of operations had occurred on January 1, 2007, to the extent permitted under Regulation S-X and related SEC and other applicable guidance (together, the “Pro Forma Financial Statements”). The Audited Financial Statements shall be prepared, in all material respects in accordance with GAAP and with Regulation S-X and the Pro-Forma Financial Statements shall be prepared, in all material respects in accordance with Regulation S-X and related SEC and other applicable guidance and based on assumptions which are reasonably set forth therein. The Bookrunners shall be deemed to be satisfied with the Audited Financial Statements if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the Audited Financial Statements within three (3) Business Days following delivery of the Audited Financial Statements. Following the delivery of the Audited Financial Statements, the Borrower shall provide the Bookrunners with an opportunity, by telephone or otherwise, to conduct customary auditor due diligence with representatives of the Borrower during which representatives of Deloitte & Touche LLP will be present (in person or by telephone) and participate in a customary manner, the result of which the Bookrunners shall be satisfied with. Each of the Bookrunners agrees to have its representatives available for the auditor due diligence promptly following the delivery of the Audited Financial Statements and each of the Bookrunners agrees to not unreasonably delay the completion of the auditor due diligence. The Bookrunners shall be deemed to be satisfied with the auditor due diligence if no Bookrunner shall have contacted the Borrower indicating such Bookrunner is not satisfied with the results of the auditor due diligence within two (2) Business Days following completion of the auditor due diligence; and
(l) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Initial Funding Date, including, to the Administrative Agent extent invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees and expenses of counsel) required to be reimbursed or paid by the Borrower hereunder. Notwithstanding the foregoing, the obligations of the Lenders to make the Term Loans shall have received:
not become effective unless each of the foregoing conditions is satisfied (ior waived pursuant to Section 9.02) a certificate at or prior to 3:00 p.m., New York City time, on the Early Commitment Termination Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). Notwithstanding any other provision of Bidco signed by a director certifying:
(1) this Agreement, the date only condition precedent to the making of the Loans on which the Announcement Initial Funding Date occurred (which are those set forth in this Section 4.02. Notwithstanding any other provision of this Agreement, the only conditions precedent to the depositing of the Term Loans into the Collateral Account on the Initial Funding Date are those set forth in this Section 4.02 and, if such conditions are satisfied, no additional conditions, including without limitation the absence of any other breaches or defaults under the Loan Documents or the making of any other representations under the Loan Documents or the Separation Documents, shall be a date on or prior condition precedent to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order depositing of the Court has been duly delivered to Term Loans into the Registrar of Companies in accordance with Section 899(4) of the Companies ▇▇▇ ▇▇▇▇ and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents.
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court; and
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ and a copy of the order of the Court and minute which is the subject of that certificate.
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or Collateral Account on the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and.
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Initial Funding Date. The obligations of the Lenders to make the initial Loans and of the Issuing Bank to issue the initial Letters of Credit on the Initial Funding Date hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2):
(a) If the Offer Conversion has not occurred, on or prior to the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred (which shall be a date on or prior to the tenth calendar day after the date of this Agreement);
(2) the date on which the Scheme Circular was posted to the shareholders of ClinPhone;
(3) the date that the Court has sanctioned the Scheme and the Capital Reduction relating to the Scheme and that the relevant order of the Court has been duly delivered to the Registrar of Companies in accordance with Section 899(4) of the Companies ▇▇▇ ▇▇▇▇ and has been registered and a certificate of registration from the Register of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ has been issued in relation to the Capital Reduction relating to the Scheme;
(4) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or as otherwise agreed by the Initial Lenders; and
(5) each copy document specified in paragraphs (ii) to (v) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing;
(ii) a copy of each of the Scheme Documents.;
(iii) a copy of the certificate of the Register of Companies confirming registration of the order of the Court sanctioning the Scheme and a copy of that order of the Court; and;
(iv) a copy of the certificate of registration from the Registrar of Companies under section 138(4) of the Companies ▇▇▇ ▇▇▇▇ and a copy of the order of the Court and minute which is the subject of that certificate.; and
(v) evidence that all necessary regulatory and competition authority approvals for the ClinPhone Acquisition have been obtained.
(b) If the Offer Conversion has occurred, prior to or on the Initial Funding Date, the Administrative Agent shall have received:
(i) a certificate of Bidco signed by a director certifying:
(1) the date on which the Announcement Date occurred;
(2) the date on which the Takeover Offer Document was posted to the shareholders of ClinPhone;
(3) that the conditions applicable to the ClinPhone Acquisition have been satisfied or waived in accordance with their terms and the terms of this Agreement or otherwise agreed by the Initial Lenders; and
(4) each copy document specified in paragraph (ii) below is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the proposed date of the relevant Borrowing; and
(ii) a copy of each of the Offer Documents.
(c) In the case of a Borrowing to be made by any Borrower other than Bidco, Bidco has consented to such Borrowing.
(d) The Administrative Agent shall have received all fees and other amounts due and payable pursuant to this Agreement and the Syndication and Fee Letter on or prior to the Initial Funding Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Administrative Borrower hereunder.
(e) The Administrative Agent shall have received a certificate of a Financial Officer of the Administrative Borrower certifying that (1) a portion (or all) of the Borrowings to be made on such date will constitute a Certain Funds Utilisation (other than a Certain Funds Utilisation for a purpose falling within paragraph (1)(b) or (2)(b) of the definition of Certain Funds Purpose), (2) in the case of a Borrowing to be made on the Initial Funding Date, the remainder of such Borrowings and all the Letters of Credit to be issued on that date, up to an aggregate amount of not more than US$72,500,000, will be used to ensure that the representation made in the last paragraph of Section 4.2 shall be true and (3) on the date of the applicable Borrowing Request and on the proposed date of such Borrowings and Letter of Credit issuances:
(i) no Certain Funds Default is continuing or would result from the proposed Borrowings and Letter of credit issuances; and
(ii) all the Certain Funds Representations are true. The Administrative Agent shall notify the Administrative Borrower and the Lenders of the Initial Funding Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans on the Initial Funding Date and of the Issuing Bank to issue Letters of Credit hereunder and of the Lenders to make Loans on the Acquisition Consideration Payment Date shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on the Initial Funding Date, and at or prior to 3:00 p.m., New York City time, on the last day of the Certain Funds Period, respectively During the Certain Funds Period (save in circumstances where, pursuant to paragraph (e) above, a Lender is not obliged to make a Loan), none of the Lenders nor the Agents shall be entitled to:
(iii) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(iv) rescind, terminate or cancel this Agreement or the Commitments or exercise any similar right or remedy or make or enforce any claim under the Loan Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
(v) refuse to participate in the making of a Certain Funds Utilisation on the Initial Funding Date or on the Acquisition Consideration Payment Date if the conditions set forth in this Section 4.2 have been satisfied as of the Initial Funding Date and as of the Acquisition Consideration Payment Date, respectively;
(vi) exercise any right of set-off or counterclaim in respect of a Borrowing to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
(vii) cancel, accelerate or cause repayment or prepayment of any amounts owing hereunder or under any other Loan Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation, provided that immediately upon the expiry of the Certain Funds Period all such rights, remedies and entitlements shall be available to the Lenders and Agents notwithstanding that they may not have been used or been available for use during the Certain Funds Period. Immediately following the initial funding of Loans on the Initial Funding Date, the Administrative Borrower shall cause all principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Credit Agreement to be paid in full, the commitments thereunder to be terminated and all guarantees and Liens existing in connection therewith to be discharged and released, and the Administrative Borrower hereby directs the Administrative Agent to apply proceeds of the Borrowings on the Initial Funding Date to the payment of the foregoing amounts until they are paid in full. The Administrative Borrower represents and covenants that, after the borrowings on the Initial Funding Date and the application of funds provided for in the immediately preceding paragraph, none of the Borrowers or any other Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.1 and Schedule 6.16, (iii) intercompany Indebtedness permitted under Section 6.1(c) and (iv) other Indebtedness in an aggregate principal amount not to exceed US$12,000,000.
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