Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date: (a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date: (i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and (ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto. (b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing. (c) The Allergan Acquisition shall have been, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lenders.
Appears in 2 contracts
Sources: Cash Bridge Loan Credit and Guaranty Agreement (Warner Chilcott LTD), Term Loan Credit and Guaranty Agreement (Warner Chilcott LTD)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder on the Closing Date is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01waiver) of the following conditions precedent precedent, and upon satisfaction (or simultaneous, to waiver) of such conditions each Lender shall make its Loans hereunder on the extent specified herein) on or after the Effective Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originalsoriginals unless otherwise specified, each properly executed by a Responsible Officer of the applicable Loan Parties, and each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date); provided that the delivery of any originals shall is not be a condition precedent to the obligation of each Lender to make its Loans hereunder on the Closing Date:
(i) Notes executed by the Borrower in favor of each Lender requesting a certificate, dated Note at least two Business Days prior to the Closing Date and Date;
(ii) a certificate signed by a Responsible Officer of Ultimate each of Intermediate Parent, Actavis, Actavis SCS and the Borrower (A) certifying and attaching the resolutions adopted by such Person authorizing the execution and delivery of this Agreement and the Notes, if applicable, and the performance of this Agreement and the Notes, if applicable, (B) certifying as to the incumbency and specimen signature of each Responsible Officer executing this Agreement and the Notes, if applicable, (C) attaching a good standing certificate (or the local equivalent) and a certificate of incorporation (or the local equivalent) evidencing that such Person is validly existing and in good standing (or the local equivalent) in its jurisdiction of organization, (D) certifying and attaching a true and complete copy of the Organization Documents of such Person and (E) in the case of the certificate of Intermediate Parent only, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d(c) and 4.02(e(d) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and;
(iiiii) a certificatean executed legal opinion of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, addressed to the Administrative Agent and each Lender and dated the Closing Date Date, substantially in the form of Exhibit J-1, (B) ▇▇▇▇▇▇▇▇▇ Traurig LLP, special Nevada counsel for Actavis, addressed to the Administrative Agent and signed by each Lender and dated the chief executive officerClosing Date, chief financial officer or treasurer substantially in the form of Ultimate Exhibit J-2, (C) Loyens & Loeff Luxembourg S.à ▇.▇., special Luxembourg counsel for the Borrower and Actavis SCS, addressed to the Administrative Agent and each Lender and dated the Closing Date, substantially in the form of Exhibit J-3 and (D) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, special Bermuda counsel for Intermediate Parent, addressed to the Administrative Agent and each Lender and dated the Closing Date, substantially in the form of Exhibit J-4;
(iv) a certificate as to the financial condition and Solvency of Ultimate Intermediate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H I hereto; and
(v) the receipt of any Loan Notices in accordance with the requirements hereof.
(b) Since November 16February 17, 2014, no there shall not have occurred a “Company Material Adverse Effect” (as defined in under the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lenders.
Appears in 1 contract
Sources: Cash Bridge Credit and Guaranty Agreement (Actavis PLC)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.
(b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lenders.
(d) Such representations and warranties made by or with respect to the Allergan Acquired Business and its Subsidiaries in the Allergan Merger Agreement as are material to the interests of the Lenders shall be true and correct, but only to the extent that Ultimate Parent or any of its Affiliates has the right to terminate Ultimate Parent’s or such Affiliate’s obligations under the Allergan Merger Agreement, or to decline to consummate the Allergan Acquisition pursuant to the Allergan Merger Agreement, as a result of a breach of such representations and warranties in the Allergan Merger Agreement. The Specified Representations shall be true and correct in all material respects.
(e) The Refinancing shall have occurred, or shall occur substantially simultaneously with the making of the Loans. After giving effect to the Transactions, Ultimate Parent and its Subsidiaries (including the Allergan Acquired Business and its Subsidiaries) shall not have any Indebtedness for borrowed money other than (i) the Loans, (ii) the Allergan Acquisition Term Facilities, the Allergan Cash Bridge Facility and/or debt securities (including securities exchangeable for shares of capital stock of (or other ownership or profits interests, or warrants, rights or options for the purchase of ordinary shares)) issued and other credit facilities entered into, in each case, to finance the Allergan Acquisition and the related transactions, (iii) Indebtedness under the Actavis Revolving Credit Agreement, the Existing Actavis Term Loan Credit Agreement and the WC Term Loan Credit Agreement permitted hereunder, (iv) any notes of Ultimate Parent and its Subsidiaries issued and outstanding on the Effective Date, (v) Indebtedness of the Acquired Business and its Subsidiaries permitted to remain outstanding on the Closing Date under the Merger Agreement (as in effect on November 16, 2014), (vi) Indebtedness permitted under Section 7.02(b), 7.02(e) or, other than with respect to Indebtedness of the Allergan Acquired Business and its Subsidiaries, 7.02(f), (vii) Indebtedness owed by Ultimate Parent or any of its Subsidiaries to Ultimate Parent or any of its Subsidiaries, (viii) any working capital financings and project financings in the ordinary course of business of Ultimate Parent and its Subsidiaries, (ix) any commercial paper financings and other short-term Indebtedness incurred in the ordinary course of business of Ultimate Parent and its Subsidiaries and (x) other Indebtedness in an aggregate principal amount not to exceed $300,000,000.
(f) All fees due to the Administrative Agent, the Arrangers and the Lenders pursuant to the Commitment Letter, the Fee Letters or this Agreement and, to the extent invoiced at least two (2) Business Days prior to the Closing Date, all reasonable and documented expenses to be paid or reimbursed to the Administrative Agent and the Arrangers on or prior to the Closing Date pursuant to the Commitment Letter or this Agreement, shall have been paid.
(g) At least ten (10) consecutive business days (as defined in the Allergan Merger Agreement) prior to the Closing Date (which period (i) shall exclude November 27, 2014, November 28, 2014 and July 3, 2015, (ii) if it has not ended on or before December 19, 2014, shall not commence before January 5, 2015 and (iii) if it has not ended on or before August 14, 2015, shall not commence before September 8, 2015), Actavis SCS shall have (A) provided to the Debt Investment Banks one or more preliminary offering memoranda or preliminary private placement memoranda relating to the offering of the Senior Notes in a form customary for private offerings of similar debt securities pursuant to Rule 144A (with registration rights) or, at the election of Actavis SCS, one or more preliminary prospectuses or preliminary prospectus supplements pursuant to an effective and available registration statement on Form S-1 or Form S-3 under the Securities Act, relating to the offering of the Senior Notes in a form customary for public offerings of similar debt securities registered pursuant to the Securities Act (including, in either case, all financial statements and other information (including all audited financial statements, all unaudited financial statements (with respect to which Actavis SCS’s and Allergan Acquired Business’s independent accountants shall have performed a SAS 100 review, as applicable) and all appropriate pro forma financial statements) that would enable the Debt Investment Banks to obtain customary comfort letters from Actavis SCS’s and Allergan Acquired Business’s independent registered public accounting firms) that would be of the type that would be customary in a private offering of similar debt securities pursuant to Rule 144A (with registration rights), or public offerings of similar debt securities registered pursuant to the Securities Act, as applicable (which, in the case of a private offering pursuant to Rule 144A, for the avoidance of doubt, need not include financial statements or information required by Rules 3-09, 3-10 or 3-16 of Regulation S-X, Compensation Discussion and Analysis required by Regulation S-K Item 402(b), other information or financial data customarily excluded from a Rule 144A (with registration rights) offering memorandum), and any applicable supplements to such offering documents, and at no time during such period shall the financial information in such Senior Notes offering document (the “Senior Notes Offering Document”) have become stale, (B) provided to the Debt Investment Banks drafts of customary comfort letters (including customary negative assurance comfort) by the independent registered public accounting firm of Actavis SCS and, consistent with its obligations under the Allergan Merger Agreement, the Allergan Acquired Business with respect to the financial information in the Senior Notes Offering Document, which such accountants are prepared to issue upon completion of customary procedures, each in form and substance customary for private offerings of similar debt securities pursuant to Rule 144A (with registration rights), or public offerings of similar debt securities registered pursuant to the Securities Act, as applicable and (C) caused the senior management and other representatives of Actavis SCS and, in a manner consistent with the Allergan Merger Agreement, the Allergan Acquired Business, to provide access in connection with due diligence investigations.
(h) At least ten (10) consecutive business days (as defined in the Allergan Merger Agreement) prior to the Closing Date (which period (i) shall exclude November 27, 2014, November 28, 2014 and July 3, 2015, (ii) if it has not ended on or before December 19, 2014, shall not commence before January 5, 2015 and (iii) if it has not ended on or before August 14, 2015, shall not commence before September 8, 2015), Ultimate Parent shall have an effective registration statement on Form S-1 or Form S-3 under the Securities Act available for the issuance of the Equity Securities and shall have (A) provided to the Equity Investment Banks one or more preliminary prospectuses or preliminary prospectus supplements, as applicable, relating to the offering of the Equity Securities in a form customary for public offerings of similar equity securities registered pursuant to the Securities Act (including all financial statements and other information (including all audited financial statements, all unaudited financial statements (with respect to which Ultimate Parent’s and Allergan Acquired Business’s independent accountants shall have performed a SAS 100 review) and all appropriate pro forma financial statements), in each case, required by, prepared in accordance with, or reconciled to, generally accepted accounting principles in the United States and prepared in accordance with Regulation S-X under the Securities Act), and such other data (including selected financial data) that the SEC requires in such a registered offering of the Equity Securities or that would be necessary for the Equity Investment Banks to receive customary comfort (including customary negative assurance comfort) from independent registered public accounting firms) that would be of the type that would be customary in a public offering of similar equity securities registered pursuant to the Securities Act, and any applicable supplements to such offering documents, and at no time during such period shall the financial information in such Equity Securities offering document (the “Equity Securities Offering Document”) have become stale, (B) provided to the Equity Investment Banks drafts of customary comfort letters (including customary negative assurance comfort) by the independent registered public accounting firm of Ultimate Parent and, consistent with its obligations under the Allergan Merger Agreement, the Allergan Acquired Business with respect to the financial information in the Equity Securities Offering Document, which such accountants are prepared to issue upon completion of customary procedures, each in form and substance customary for public offerings of similar equity securities registered pursuant to the Securities Act, and (C) caused the senior management and other representatives of Ultimate Parent and, in a manner consistent with the Allergan Merger Agreement, the Allergan Acquired Business, to provide access in connection with due diligence investigations. Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in Section 4.01 or 4.02, each Lender will be deemed to have consented to approved or accepted, or to be satisfied with, each document or other matter referred to in such Section unless the Administrative Agent will have received notice from such Lender prior to the proposed Effective Date or the proposed Closing Date, as applicable, specifying its objection thereto. The Administrative Agent shall promptly notify in writing Ultimate Parent, the Borrower and the Lenders of the occurrence of the Effective Date and the Closing Date, and such notice shall be conclusive and binding. For the avoidance of doubt, (a) the conditions precedent (or simultaneous, to the extent specified herein) in Section 4.02 shall not be conditions to the delivery of any Lender’s Pre-Advanced Funds on the Pre-Funding Date, but shall be conditions to the Administrative Agent making the Pre-Advanced Funds available to the Borrower and (b) if the conditions set forth in Section 4.02 are satisfied, the absence of any Default shall not be a condition precedent to any Borrowing on the Closing Date.
Appears in 1 contract
Sources: Bridge Loan Credit and Guaranty Agreement (Warner Chilcott LTD)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder a Loan is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after before the Effective Availability End Date:
(a) The Administrative Agent’s receipt of the following, each of Agent shall have received reasonably satisfactory evidence (which may be delivered provided by facsimile a certificate of a Responsible Officer) that (X) the Acquisition has been consummated (or other electronic transmission (including “pdf” and “tif”), followed promptly after shall be consummated substantially concurrently with the Closing Date by originals, provided that funding of the delivery of any originals shall not be a condition precedent to Loans on the Closing Date:
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.
(b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, or substantially simultaneously with the making of the Loans shall be, consummated all material respects in accordance with the terms of the Allergan Merger Agreement without giving effect to Acquisition Agreement; provided that no amendment, modification or waiver of any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent term thereof or any of its Affiliates condition to the Borrower’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted that are is materially adverse to the interests of the Lenders and not approved by Lead Agents or the Arrangers (Lenders, as the case may be, without the prior written consent of the Lead Agents, which approval consent shall not be unreasonably withheld, conditioned withheld or delayed). It is delayed (it being understood and agreed that any (i) no increase modification, amendment, supplement, consent, waiver or request under the Acquisition Agreement that results in consideration a decrease in the purchase price shall not be deemed to be materially adverse to the interests of the Lead Agents or the Lenders; provided that, any such reduction shall be allocated entirely to reduce the Commitments under this Agreement or ratably to reduce (x) the Commitments under this Agreement and (y) the requirement of cash on hand and the BAT Equity Issuance (so long as BAT’s percentage ownership of the Borrower’s common equity after giving effect to the Transactions is 42.17832%) intended to be used to finance the Acquisition and (ii) amendment, waiver or modification to the definition of “Company Material Adverse Effect” or the “lender protection provisions” in Sections 8.02(g), 8.03, 8.04, 9.07, 9.08(c) and 9.11 of the Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lead Agents and the Lenders, (Y) the Specified Asset Dispositions have been consummated (or shall be consummated substantially concurrently) with the funding of the Loans on the Closing Date and the consummation of the Acquisition in accordance with the terms of the Imperial Divestiture Documents as in effect on the date hereof and after giving effect to any modifications, amendments, supplements, replacements or substitutions (in each case, in whole or in part), consents, waivers or requests thereto, other than those modifications, amendments, supplements, replacements, substitutions, consents, waivers or requests (including the effects of any such requests) that result in (a) additional assets exceeding in the aggregate $250,000,000 becoming part of the Specified Asset Dispositions or (b) a Substantial Detriment unless either such addition of assets or Substantial Detriment is consented to in writing by the Lead Agents (which consent shall not be unreasonably withheld or delayed), and (Z) the BAT Equity Issuance has been consummated (or shall be consummated substantially concurrently) with the funding of the Loans on the Closing Date.
(b) The Administrative Agent shall have received reasonably satisfactory evidence certifying that except (x) as set forth in the Lorillard Disclosure Letter delivered by Lorillard to the Borrower on July 15, 2014, (y) with respect to any information set forth in one section or subsection of the Lorillard Disclosure Letter to the extent that it is reasonably apparent from the wording of such disclosure that such disclosure applies to the foregoing or (z) as set forth in the Lorillard SEC Documents filed since January 1, 2014, but prior to the date of the Acquisition Agreement (excluding all disclosures in any “Risk Factor” sections and any disclosures included in any such Lorillard SEC Documents that are cautionary, predictive or forward looking in nature, from January 1, 2014 to the date of the Acquisition Agreement) there has not occurred any fact, circumstance, effect, change, event or development that, individually or in the aggregate, has had or could reasonably be expected to have a Lorillard Material Adverse Effect.
(c) Since July 15, 2014, a Lorillard Material Adverse Effect shall not have occurred and the Administrative Agent shall have received a certificate to such effect, dated the Closing Date and signed by a Responsible Officer.
(d) At least 5 Business Days prior to the Closing Date, the Lead Agents shall have received (i) audited consolidated balance sheets and related statements of income (or, in the case of Lorillard, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of Lorillard, stockholders’ equity) and cash flows for Lorillard and the Borrower for the fiscal years ended December 31, 2011, 2012, 2013 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2014) 2014, (ii) unaudited consolidated balance sheets and related statements of income (or, in the case of Lorillard, statements of operations and comprehensive income), shareholders’ equity (in the case of the Borrower) (or, in the case of Lorillard, stockholders’ equity) and cash flows for each of Lorillard and the Borrower for each fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with generally accepted accounting principles and (iii) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently ended four-fiscal quarter period for which financial statements have been delivered pursuant to clauses (i) and (ii) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of the balance sheet) or at the beginning of such period (in the case of such income statements). The Borrower’s or Lorillard’s, as applicable, filing of the historical and pro forma financial statements required by applicable federal securities laws and rules, at the times and in the filings required by such laws and rules will satisfy the requirements under clauses (i), (ii) and (iii) of this Section 4.02(d). The Lead Agents hereby acknowledge that they have received each of the financial statements described in clause (i) of the first sentence of this Section 4.02(d) for the fiscal years ended December 31, 2011, 2012 and 2013 and described in clause (ii) of the first sentence of this Section 4.02(d) for the fiscal quarters ended March 31 and June 30, 2014.
(e) To the extent not delivered on or prior to the Effective Date, the Borrower and each Guarantor shall have executed and delivered or caused to be executed and delivered the Loan Documents, including the Subsidiary Guarantee Agreement executed and delivered by each Subsidiary of the Borrower that guarantees the Existing Credit Agreement on the Effective Date; provided, however, that with respect to any Subsidiary Guarantee Agreement to be provided by Lorillard or any of its Material Subsidiaries, if such guarantee cannot be provided as a condition precedent solely because the directors or managers of Lorillard or such Subsidiary have not authorized such guarantee and the election of new directors or managers to authorize such guarantee has not taken place prior to the funding of the Loans (such guarantee, “Duly Authorized Guarantee”), such election shall take place and such Duly Authorized Guarantee shall be executed and delivered to the Administrative Agent no later than 5:00 p.m., New York City time on the Business Day following the Closing Date.
(f) The Administrative Agent shall have received an executed Borrowing Request.
(g) The Administrative Agent shall have received written opinions (each addressed to the Administrative Agent and the Lenders so long and dated the Closing Date) of (i) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Borrower and (ii) the Deputy General Counsel of the Borrower, each in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(h) The Administrative Agent shall have received such customary documents and certificates as such increase is solely the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party in its jurisdiction of organization or formation, as applicable, the authorization of the Transactions and incumbency, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(i) The Administrative Agent shall have received a solvency certificate, dated the Closing Date, in the form of additional Equity Interests in Ultimate Parent Exhibit E, executed by the chief financial officer of the Borrower certifying that the Borrower and (ii) any amendment its Subsidiaries, on a consolidated basis after giving effect to the definition Transactions and the other transactions contemplated hereby and by the Acquisition Agreement, are solvent.
(j) As of the Closing Date, the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except to the extent expressly made as of an earlier date, in which case such representation shall have been accurate in all material respects as of such earlier date) and the Administrative Agent shall have received a certificate to such effect, dated the Closing Date and signed by a Responsible Officer.
(k) The Lead Agents shall have received at least three Business Days before the Closing Date all documentation and other information requested in writing by the Lead Agents at least 10 Business Days prior to the Closing Date and required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(l) The Administrative Agent and each Lender shall have received all fees and other amounts due and payable to the Administrative Agent and such Lender, respectively, on or prior to the Closing Date, including, to the extent invoiced a reasonable time prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent required to be reimbursed or paid by the Borrower on or prior to the Closing Date.
(m) The Borrower will have used commercially reasonable efforts to assist the Investment Bank with a timely (relative to the Closing Date) marketing of the Notes and to provide the Lead Agents and the Investment Bank with a complete printed preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum (collectively, an “Offering Document”) suitable for use in a customary “road show” relating to the Notes, which contains all financial statements and other data to be included therein (including all audited financial statements, all unaudited financial statements (which shall have been reviewed by the independent accountants for Lorillard and the Borrower, as applicable, as provided in the procedures specified by the Public Company Material Adverse EffectAccounting Oversight Board in AU 722) and all appropriate pro forma financial statements, in each case, required by, prepared in accordance with, or reconciled to, GAAP and prepared in accordance with Regulation S-X under the Securities Act of 1933, as amended), and such other data (including selected financial data) that the Securities and Exchange Commission would require in a registered offering of the Notes or that would be necessary for the Investment Bank to receive customary “comfort” (including by means “negative assurance” comfort) from independent accountants in connection with the offering of the Notes and the Investment Bank shall have received a customary comfort letter (which shall provide “negative assurance” comfort), which may be in draft form if any such amendment Notes are then proposed to be issued but have not yet been issued, from the independent accountants for Lorillard and the Borrower (and any predecessor accountant or acquired company accountant to the definition extent financial statements of “Effects”Lorillard or the Borrower or any acquired company audited or reviewed by such accountants are or would be included in any Offering Document).
(n) The loans under the Existing Credit Agreement that are used to finance the Acquisition (including any fees and expenses incurred in the Allergan Merger Agreement connection therewith) shall be deemed materially adverse to the interests of the Lendersnot exceed $500,000,000.
Appears in 1 contract
Conditions to Borrowing. The obligation of each SECTION 3.01. Conditions Precedent to the Initial Borrowing and the Term Advances. No Lender shall be required or obligated on the Closing Date to make its Loans hereunder is subject solely any Advance, the Initial Issuing Bank shall not be required or obligated on the Closing Date to continue the receipt by Existing L/Cs hereunder, and each Issuing Bank shall not be required or obligated to make on the Administrative Agent of a Loan Notice therefor Closing Date L/C Credit Extensions, in accordance with Section 2.02 and to each case, until the satisfaction (or waiver in accordance with Section 11.01) of first Business Day on which the following conditions precedent have been satisfied (or simultaneouswaived, as evidenced by an "effective date" notice to AYE from each Issuing Bank and the extent specified herein) Administrative Agent), as determined by each Lender and each such Issuing Bank (provided that if the Closing Date does not occur on or after before May 22, 2006, the Effective Date:Commitments of the Lender Parties shall terminate on such date):
(a) The Administrative Agent’s 's receipt of the following, each of which may shall be delivered originals or facsimiles (followed promptly by facsimile or other electronic transmission originals) (including “pdf” and “tif”unless otherwise specified), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
(i) a certificate, dated the Closing Date and signed each properly executed by a Responsible Officer of Ultimate Parenteach Borrower (if executed by such Borrower), each dated the date of the Initial Borrowing (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 Lender Parties (unless otherwise specified) and in sufficient copies for the Borrowers and the Administrative Agent (unless otherwise specified):
(i) five (5) executed counterparts of this Agreement;
(ii) to the extent requested, duly executed Notes of each Borrower for the account of each Lender that has so requested complying with the provision of Section 2.14 hereof;
(iii) certified copies of resolutions of the board of directors of each Borrower approving the Transactions to which such Borrower is or is to be a party and the execution, delivery and performance of each Loan Document to which such 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 Loan Document to which such Borrower is or is to be a party;
(iv) copies of a certificate of the Secretary of State of Maryland, certifying (A) as to a true and correct copy of the certificate of incorporation or formation of AYE and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the conditions specified only amendments to such certificate on file in Sections 4.02(b)such Secretary's office, 4.02(c)(2) AYE has paid all franchise taxes to the date of such certificate and (3) AYE is duly formed and in good standing or presently subsisting under the laws of the State of Maryland;
(v) copies of a certificate of the Secretary of State of Delaware, 4.02(dcertifying (A) as to a true and 4.02(ecorrect copy of the certificate of formation of AESC and each amendment thereto on file in such Secretary's office and (B) have been satisfied that (1) such amendments are the only amendments to such certificate on file in such Secretary's office, (2) AESC has paid all franchise taxes to the date of such certificate and (3) AESC is duly formed and in good standing or presently subsisting under the laws of the State of Delaware;
(vi) 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 any Borrower conducts a material portion of its business other than with respect to AYE, the Commonwealth of Pennsylvania stating that such 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;
(vii) certificates signed on behalf of each Borrower by its secretary or any assistant secretary (the statements made in which certificate shall be true on and as of the Closing Date), in certifying (A) as to a true and correct copy of the form attached Constituent Documents of such Borrower as Exhibit G hereto; and
(ii) a certificate, dated of the Closing Date and signed by each amendment to its Constituent Documents, if any, from the chief executive officer, chief financial officer date on which the resolutions referred to in Section 3.01(a)(iii) were adopted to the Closing Date; and (B) the names and true signatures of the officers of such Borrower authorized to sign each Loan Document to which it is or treasurer is to be a party and the other documents to be delivered hereunder and thereunder;
(viii) [Intentionally Omitted];
(ix) legal opinions of Ultimate Parentappropriate counsel for the Borrowers, as to such matters as any Lender may reasonably request;
(x) a legal opinion of Shearman & Sterling LLP, counsel to the financial condition Administrative Agent, as to such matters as the Administrative Agent may reasonably request;
(xi) [Intentionally Omitted];
(xii) [Intentionally Omitted];
(xiii) certificates signed by a Responsible Officer of each Borrower to the effect that (A) the representations and Solvency warranties contained in Article IV by such Borrower are true and correct on and as of Ultimate Parent the Closing Date as though made on and its Subsidiaries (on a consolidated basis, as of such date both immediately before and immediately after giving effect to the Initial Borrowing and the Term Borrowing; and (B) no Default has occurred and is continuing or would result from the Initial Borrowing or the consummation of that portion of the Transactions being effected on the Closing Date (the "Closing Date Transactions"), in the form attached as Exhibit H hereto.; and
(b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined All Governmental Approvals and third party consents and approvals necessary in connection with the Allergan Merger Agreement) Transactions shall have occurred been obtained and be continuingin full force and effect; and the Administrative Agent shall have received evidence satisfactory to it that the foregoing have been accomplished.
(c) The Allergan Acquisition Except for Disclosed Matters as of the date hereof, since December 31, 2005, there shall not have occurred any Material Adverse Change.
(d) All required stamp duties and other costs and charges in connection with the execution, delivery, priority or admissibility in evidence of the Loan Documents required to be paid on or prior to the Closing Date shall have been, been paid in full or substantially simultaneously with the making of the Loans an appropriate exemption therefrom shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers have been obtained.
(which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that e) All Taxes (i) no increase in consideration shall be deemed to be materially adverse due and payable on or prior to the interests Closing Date in connection with the execution, delivery or admissibility in evidence of the Lenders so long as such increase is solely Loan Documents or to ensure the legality, validity, enforceability or admissibility in evidence of the form of additional Equity Interests in Ultimate Parent Loan Documents and (ii) any amendment due and payable on or prior to the definition Closing Date by the Borrowers in connection with the consummation of “Company Material Adverse Effect” the transactions contemplated by, and the performance of, the Loan Documents shall, in the case of clauses (including by means i) and (ii) of any such amendment this Section 3.01(e), have been duly paid in full.
(f) AYE shall have paid all accrued fees of the Administrative Agent, the Lender Parties and the Arranger Parties and all accrued expenses of the Administrative Agent to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse extent invoiced at least three Business Days prior to the interests of the LendersClosing Date.
Appears in 1 contract
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely following conditions apply to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) making of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective DateSecond Loan:
(a) The Administrative Agent’s receipt No Event of Default and no condition which would constitute an Event of Default with the followinggiving of notice or lapse of time or both shall exist, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals there shall not be have occurred a condition precedent to the Closing Date:
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.Bankruptcy Event;
(b) Since November 16Each of the representations and warranties made by the Borrowers herein shall be true and correct immediately prior to, 2014and after giving effect to, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.such Loan;
(c) The Allergan Acquisition making of such Loan shall have beennot violate any requirement of law and shall not be enjoined, temporarily, preliminarily, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without permanently;
(d) If after giving effect to a request for, and the borrowing of, a Loan, the Total Commitment Amount will not be exceeded;
(e) There shall not have occurred any amendmentsevent, modificationschange, supplementscircumstance, waivers effect, or consents thereto other matter that has, individually or in the aggregate, a material adverse effect on (i) the financial condition or results of operations of the Borrower or its business, taken as a whole as of the date hereof; or (ii) the condition or value of any material portion of the Borrower’s assets;
(f) For the Second Loan, the Borrower shall have sent a written borrowing notice (“Borrowing Notice”) to the Lender setting forth (i) the amount of the Loan being requested, (ii) the date the Loan being requested is to be funded, which shall be at least three (3) Business Days after November 16the date the Lender receives the Borrowing Notice, 2014(iii) the intended use of the proceeds of the Loan, (iv) where the Loan funds should be wire transferred, (v) confirmation that no Events of Default have occurred and are continuing, and (vi) confirmation that all of the representations and warranties in this Secured Note are accurate as of the date of the Borrowing Notice and the requested Loan funding date. Each Borrowing Notice shall be signed by Ultimate Parent an authorized officer of the Borrower. For the First Loan, the conditions of this paragraph shall have been met upon execution of this agreement and the First Loan amount of $2,000,000 shall be remitted within at least one (1) Business Day to the account specified in writing by ▇▇▇▇▇▇▇▇.
(g) There shall exist no order of any court of competent jurisdiction that would prevent the Borrower or Lender from honoring their respective obligations, or prevent the Lender from exercising any of its Affiliates that are materially adverse to rights or remedies, under this Secured Note, the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheldPrior Secured Note, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lendersapplicable law.
Appears in 1 contract
Sources: Secured Convertible Promissory Note (Momentus Inc.)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder a Loan on the Borrowing Date is subject solely to the satisfaction of such of the following conditions as shall not have been expressly waived in writing by the Required Lenders;
(a) receipt by the Administrative Agent of a Loan the Notice therefor in accordance with of Borrowing as required by Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.2.02;
(b) Since November 16the fact that, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, prior to or substantially simultaneously with the making of the Loans, the Acquisition shall have been consummated;
(c) the fact that, immediately before and after the making of the Loans, no Default shall have occurred and be continuing;
(d) the fact that each of the representations and warranties made by the Obligors in or pursuant to the Financing Documents shall be true and correct in all material respects on and as of the Borrowing Date;
(e) the fact that the making of the Loans shall bewill not violate any provision of law or regulation applicable to any Lender (including, consummated without limiting the generality of the foregoing, Regulations U and X of the Board of Governors of the Federal Reserve System) as then in accordance effect;
(f) receipt by the Administrative Agent for the account of each Lender of a duly executed Note dated on or before the Effective Date complying with the terms provisions of Section 2.04;
(g) receipt by the Administrative Agent of counterparts of all other Financing Documents signed by each of the Allergan Merger Agreement without giving effect parties thereto (or, in the case of any party as to any amendmentswhich an executed counterpart shall not have been received, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved receipt by the Arrangers Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such party of execution of a counterpart thereof by such party);
(which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that h) receipt by the Administrative Agent (i) for its own account of the fees set forth in Section 7.08 and (ii) for the account of the Lenders, of participation fees in the amounts heretofore mutually agreed upon;
(i) receipt by the Administrative Agent of a certificate of a Principal Officer of the Parent Guarantor and of the Borrower that, upon the Borrowing Date, no increase Default shall have occurred and be continuing and that each of the representations and warranties made by the Obligors in consideration shall be deemed to be materially adverse or pursuant to the interests Financing Documents are true and correct in all material respects;
(j) receipt by the Administrative Agent of an opinion of the Lenders so long as such increase is solely General Counsel or Associate General Counsel of the Borrower and the Parent Guarantor, substantially in the form of Exhibit B hereto and covering such additional Equity Interests in Ultimate Parent and (ii) any amendment matters relating to the definition transactions contemplated hereby as the Required Lenders may reasonably request;
(k) receipt by the Administrative Agent of “Company Material Adverse Effect” (including by means an opinion of any ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the Administrative Agent, substantially in the form of Exhibit C hereto and covering such amendment additional matters relating to the definition transactions contemplated hereby as the Required Lenders may reasonably request; and
(l) receipt by the Administrative Agent of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse all documents they may reasonably request relating to the interests existence of the LendersBorrower and the Parent Guarantor, the corporate authority for and the validity and enforceability of the Financing Documents, and any other matters relevant hereto, all in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions to Borrowing. The obligation Lender's consideration of each Lender to make its Loans FemRx's request for an Advance hereunder is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Dateconditions:
(i) a certificateprior to making its first request for an Advance, dated FemRx shall have delivered to Lender the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; andduly executed Note;
(ii) a certificate, dated FemRx shall not then be in default under the Closing Date and signed by terms of the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to Merger Agreement (provided that the financial foregoing condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), shall be deemed waived in the form attached as Exhibit H hereto.event that FemRx shall have terminated the Merger Agreement pursuant to Section 9.01(g) thereof);
(biii) Since November 16, 2014, no “Company Material Adverse Effect” FemRx shall not have provided to Lender a Notice of Superior Proposal (as defined in the Allergan Merger Agreement);
(iv) the Merger Agreement shall not have terminated by any of the parties thereto in accordance with its terms other than by FemRx as permitted pursuant to Section 9.01(g) thereof;
(v) FemRx shall have given Lender at least three (3) business days' written notice specifying the date and amount of any proposed Advance;
(vi) each Advance sought shall be for not more than Two Hundred Fifty Thousand Dollars ($250,000.00) in each two week period (and pro rata for any shorter period) beginning November 2, 1998 and ending at maturity;
(vii) receipt by Lender of financing statements (Form UCC-1) or other documents, in form and substance satisfactory to Lender, which Lender may reasonably request in order to create, perfect or protect its pledge and security interest on the Collateral (as hereinafter defined); and
(viii) no Event of Default, or event which, with the passage of time or giving of notice or both, shall have occurred and be continuing.
(c) continuing or shall occur as a result of Lender making the Loan. The Allergan Acquisition shall have beenconditions precedent to funding are solely for the benefit of Lender and may be waived by Lender; provided, however, if Lender waives compliance with any condition precedent, FemRx shall, and does hereby agree to indemnify and hold Lender harmless against any loss, cost or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” expense (including reasonable attorneys' fees) incurred or suffered by means Lender as a result of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lenderswaiver.
Appears in 1 contract
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely following conditions apply to the receipt by the Administrative Agent making of a any Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:unless otherwise indicated):
(a) The Administrative Agent’s receipt No Event of Default and no condition which would constitute an Event of Default with the giving of notice or lapse of time or both shall exist, and there shall not have occurred a Bankruptcy Event;
(b) Each of the followingrepresentations and warranties made by the Borrowers herein shall be true and correct immediately prior to, each and after giving effect to, such Loan;
(c) The making of which may be delivered by facsimile or other electronic transmission (including “pdf” such Loan shall not violate any requirement of law and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:enjoined, temporarily, preliminarily, or permanently;
(id) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, If after giving effect to a request for, and the Transactions)borrowing of, in a Loan, the form attached as Exhibit H hereto.Total Commitment Amount will not be exceeded;
(be) Since November 16For each Loan, 2014, no “Company Material Adverse Effect” there shall not have occurred and be continuing any Event of Default (as defined in the Allergan Merger AgreementDirector Notes) under any Director Notes;
(f) There shall not have occurred any event, change, circumstance, effect, or other matter that has, individually or in the aggregate, a material adverse effect on (i) the financial condition or results of operations of the Borrower or its business, taken as a whole as of the date hereof; or (ii) the condition or value of any material portion of the Borrower’s assets;
(g) The Borrower shall have sent a written borrowing notice (each, a “Borrowing Notice”) to the Lender setting forth (i) the amount of the Loan being requested, (ii) the date the Loan being requested is to be funded, which shall be at least five (5) Business Days after the date the Lender receives the Borrowing Notice, (iii) the intended use of the proceeds of the Loan, (iv) where the Loan funds should be wire transferred, including where the funds should be wired by the Lender to repay the Director Loans in connection with a borrowing of the Second Loan, (v) confirmation that no Events of Default have occurred and are continuing, and (vi) confirmation that all of the representations and warranties in this Secured Note are accurate as of the date of the Borrowing Notice and the requested Loan funding date. Each Borrowing Notice shall be continuing.signed by an authorized officer of the Borrower;
(ch) The Allergan Acquisition With respect to the Second Loan, Lender shall use commercially reasonable efforts to timely obtain and shall have beenobtained, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect financing to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that fund (i) no increase in consideration shall be deemed to be materially adverse to the interests maximum amount of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent Second Loan and (ii) a debtor in possession financing facility to be made available to Borrower (subject to final documentation, an agreed budget, and court approval) on terms that are at least as favorable as the following: (1) the aggregate amount of such facility and availability thereunder shall be not less than $6,000,0000, (2) the interest rate shall not be more than fourteen percent (14%) per annum, (3) any amendment origination fee and other fees and costs in aggregate shall not be more than two percent (2%) of the total facility amount financed, (4) the term of such facility shall not be less than thirty-six (36) months, and (5) the other terms of such facility shall be on terms no less favorable than set forth in this Secured Note (such financing, an “Acceptable Loan Facility”). If Lender determines in good faith, after using commercially reasonable efforts, that it cannot obtain an Acceptable Loan Facility, it will provide the Borrower with written notice of such determination within five (5) Business Days of receipt of a Borrowing Notice for the Second Loan (the “Second Loan Lender Notice”) which notice shall set forth the commercially reasonable efforts taken by Lender to obtain an Acceptable Loan Facility, the funding sources consulted by Lender to obtain an Acceptable Loan Facility (subject to any applicable non-disclosure agreements), and the reason(s) Lender has determined that it cannot obtain an Acceptable Loan Facility. Subject to the definition Borrower obtaining a final, non-appealable order from a court of “Company Material Adverse Effect” competent jurisdiction to the contrary, upon delivery of the Lender Notice, (including by means i) Lender shall have no further obligation or commitment to the Borrower to fund any other Loans (other than the First Loan) under this Secured Note, and (ii) Lender shall have no liability to the Borrower for any claims, actions, causes of action, proceedings, obligations, liabilities, losses and/or damages of any such amendment kind or character, whether in law or in equity, for not funding the requested Second Loan or for any other purported breaches by Lender of its obligations under this Secured Note. As used herein, “commercially reasonable efforts” shall exclude the provision, in connection with obtaining an Acceptable Loan Facility, of any personal or other guarantees by any principals of Lender or by other any Releasee (as defined below) or the pledging of any assets by any principals of Lender or by other any Releasee (other than Lender); and
(i) Prior to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests funding of the LendersSecond Loan, the Director ▇▇▇▇▇▇▇ shall have delivered the Director ▇▇▇▇▇▇ Releases to Lender.
Appears in 1 contract
Sources: Secured Convertible Promissory Note (Momentus Inc.)
Conditions to Borrowing. The In addition to the conditions set forth in Section 4.01, the obligation of each Lender to make its Loans hereunder on or after the Closing Date is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver waiver, by the Required Lenders in accordance with Section 11.01their sole discretion) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Dateprecedent:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals Agent shall not be a condition precedent to the Closing Date:
have received (i) a certificate, dated Borrowing Notice in accordance with the requirements hereof and (ii) in the case of any Borrowing after the Closing Date and signed by Date, concurrently with such Borrowing Notice, a certification (which may be set forth in such Borrowing Notice) from a Responsible Officer of Ultimate Parentthe Borrower that (x) the proceeds of the Loans shall be used in accordance with the Approved Budget, certifying that (y) the conditions specified Borrower was in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and compliance with Section 6.23 as of the Closing most recently-ended Variance Testing Period and (z) in the case of any Borrowing after the Final Order Date, the Borrower shall be in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (compliance with Section 7.21 on a consolidated basis, pro forma basis immediately after giving effect to the Transactions), in the form attached as Exhibit H heretofunding of such Loan.
(b) Since November 16The Interim Order (with respect to the period prior to the entry of the Final Order) or the Final Order (with respect to the period on and after the entry of the Final Order), 2014as the case may be, no “Company Material Adverse Effect” is in full force and effect and shall not have been reversed, stayed (as defined whether by statutory stay or otherwise), modified or amended in a manner that materially adversely affects the Allergan Merger Agreement) shall have occurred and be continuingLenders without the written consent of the Agent (at the Direction of the Required Lenders).
(c) The Allergan Acquisition Agent and each Lender shall have beenreceived the Approved Budget, in form and substance reasonably satisfactory to the Debtors and the Required Lenders.
(d) The representations and warranties of each Loan Party set forth in Article 5 and in each other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing, as applicable, 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 they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(e) No Default or Event of Default shall exist or would result from such proposed Borrowing or from the application of the proceeds therefrom.
(f) With respect to any Borrowing after the Closing Date, (i) the Final Order shall have been entered by the Bankruptcy Court and shall not have been vacated, stayed, reversed, modified, or substantially simultaneously with amended, in whole or in any part, without the making prior written consent of the Loans Agent (at the Direction of the Required Lenders) and shall beotherwise be in full force and effect, consummated in accordance with (ii) no motion for reconsideration of the Final Order shall have been timely filed by a Debtor or any of their Subsidiaries and (iii) no appeal of the Final Order shall have been timely filed.
(g) Subject to the terms of the Allergan Merger Agreement without giving effect DIP Order, all reasonable and documented out-of-pocket fees and expenses required to any amendments, modifications, supplements, waivers be paid under the Loan Documents shall have been paid (or consents thereto after November 16, 2014, will be paid from the proceeds of such Borrowing). The acceptance by Ultimate Parent or any of its Affiliates that are materially adverse to the interests Borrower of the Lenders and not approved Loans on the applicable Funding Date shall conclusively be deemed to constitute a representation by the Arrangers Borrower that each of the conditions precedent set forth in Sections 4.01 and 4.02 (which approval as applicable) shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by the applicable relevant Person; provided, however, that the making of any such Loan (regardless of whether the lack of satisfaction was known or unknown at the time) shall not be unreasonably withhelddeemed a modification or waiver by the Agent, conditioned any Lender or delayed). It is understood and agreed that other Secured Party of the provisions of this Article 4 on any future occasion or operate as a waiver of (i) no increase in consideration shall be deemed the right of Agent and ▇▇▇▇▇▇▇ to be materially adverse insist upon satisfaction of all conditions precedent with respect to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and any subsequent funding or issuance, (ii) any amendment Default or Event of Default due to the definition such failure of “Company Material Adverse Effect” conditions or otherwise or (including by means iii) any rights of Agent or any Lender as a result of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests failure of the LendersLoan Parties to comply.
Appears in 1 contract
Conditions to Borrowing. The obligation of each Lender to make its Pro Rata Share of the Loans hereunder is subject solely available to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and Borrower are subject only to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Dateprecedent:
(a) The Administrative Agent’s receipt of a copy of the followingfollowing documents, in each case in respect of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”)the Borrower, followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
(i) its constitutional documents, (ii) a certificateresolution of its board of directors and (iii) a specimen signature of each person authorized by the resolution referred to in clause (a)(ii) above;
(b) The Agent’s receipt of (i) an opinion from Ropes & Gray International LLP, dated New York counsel to the Closing Borrower, in form and substance reasonably satisfactory to the Agent, and (ii) an opinion from Ropes & Gray International LLP, English legal counsel to the Borrower, in form and substance reasonably satisfactory to the Agent;
(c) The Scheme Effective Date shall have occurred;
(d) Notwithstanding anything to the contrary in this Agreement, only the representations and signed by a Responsible Officer warranties of Ultimate Parent, certifying that the conditions specified Borrower (solely in respect of itself) contained in Sections 4.02(b5.01(a) to (c) (inclusive), 4.02(c)Section 5.02, 4.02(dSection 5.04(a) and 4.02(e) have been satisfied Section 5.06, in each case, of Article V shall be true and correct in all material respects on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified by a “material” standard, a “Material Adverse Effect” standard or similar other standard shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(e) No Certain Funds Default shall exist or would result from the Borrowing of the Loans or from the application of the proceeds therefrom;
(f) The Agent shall have received a Committed Loan Notice in accordance with the requirements hereof;
(g) The Agent shall have received a copy of the Interim Facility Fee Letter and the Commitment Letter, in each case, entered into by the form attached as Exhibit G heretoBorrower; and
(iih) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.
(b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval It shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed unlawful in any applicable jurisdiction for that (i) no increase in consideration shall be deemed Lender to be materially adverse perform its obligations to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means lend its participation of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the LendersLoan.
Appears in 1 contract
Sources: Interim Credit Agreement
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely following conditions apply to the receipt by the Administrative Agent making of a any Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:unless otherwise indicated):
(a) The Administrative Agent’s receipt No Event of Default and no condition which would constitute an Event of Default with the giving of notice or lapse of time or both shall exist, and there shall not have occurred a Bankruptcy Event;
(b) Each of the followingrepresentations and warranties made by the Borrowers herein shall be true and correct immediately prior to, each and after giving effect to, such Loan;
(c) The making of which may be delivered by facsimile or other electronic transmission (including “pdf” such Loan shall not violate any requirement of law and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:enjoined, temporarily, preliminarily, or permanently;
(id) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, If after giving effect to a request for, and the Transactions)borrowing of, in a Loan, the form attached as Exhibit H hereto.Total Commitment Amount will not be exceeded;
(be) Since November 16For each Loan, 2014, no “Company Material Adverse Effect” there shall not have occurred and be continuing any Event of Default (as defined in the Allergan Merger AgreementDirector Notes) under any Director Notes;
(f) There shall not have occurred any event, change, circumstance, effect, or other matter that has, individually or in the aggregate, a material adverse effect on (i) the financial condition or results of operations of the Borrower or its business, taken as a whole as of the date hereof; or (ii) the condition or value of any material portion of the Borrower’s assets;
(g) The Borrower shall have sent a written borrowing notice (each, a “Borrowing Notice”) to the Lender setting forth (i) the amount of the Loan being requested, (ii) the date the Loan being requested is to be funded, which shall be at least five (5) Business Days after the date the Lender receives the Borrowing Notice, (iii) the intended use of the proceeds of the Loan, (iv) where the Loan funds should be wire transferred, including where the funds should be wired by the Lender to repay the Director Loans in connection with a borrowing of the Second Loan, (v) confirmation that no Events of Default have occurred and are continuing, and (vi confirmation that all of the representations and warranties in this Secured Note are accurate as of the date of the Borrowing Notice and the requested Loan funding date. Each Borrowing Notice shall be continuing.signed by an authorized officer of the Borrower;
(ch) The Allergan Acquisition With respect to the Second Loan, Lender shall use commercially reasonable efforts to timely obtain and shall have beenobtained, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect financing to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that fund (i) no increase in consideration shall be deemed to be materially adverse to the interests maximum amount of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent Second Loan and (ii) a debtor in possession financing facility to be made available to Borrower (subject to final documentation, an agreed budget, and court approval) on terms that are at least as favorable as the following: (1) the aggregate amount of such facility and availability thereunder shall be not less than $6,000,0000, (2) the interest rate shall not be more than fourteen percent (14%) per annum, (3) any amendment origination fee and other fees and costs in aggregate shall not be more than two percent (2%) of the total facility amount financed, (4) the term of such facility shall not be less than thirty-six (36) months, and (5) the other terms of such facility shall be on terms no less favorable than set forth in this Secured Note (such financing, an “Acceptable Loan Facility”). If Lender determines in good faith, after using commercially reasonable efforts, that it cannot obtain an Acceptable Loan Facility, it will provide the Borrower with written notice of such determination within five (5) Business Days of receipt of a Borrowing Notice for the Second Loan (the “Second Loan Lender Notice”) which notice shall set forth the commercially reasonable efforts taken by Lender to obtain an Acceptable Loan Facility, the funding sources consulted by Lender to obtain an Acceptable Loan Facility (subject to any applicable non-disclosure agreements), and the reason(s) Lender has determined that it cannot obtain an Acceptable Loan Facility. Subject to the definition Borrower obtaining a final, non-appealable order from a court of “Company Material Adverse Effect” competent jurisdiction to the contrary, upon delivery of the Lender Notice, (including by means i) Lender shall have no further obligation or commitment to the Borrower to fund any other Loans (other than the First Loan) under this Secured Note, and (ii) Lender shall have no liability to the Borrower for any claims, actions, causes of action, proceedings, obligations, liabilities, losses and/or damages of any such amendment kind or character, whether in law or in equity, for not funding the requested Second Loan or for any other purported breaches by Lender of its obligations under this Secured Note. As used herein, “commercially reasonable efforts” shall exclude the provision, in connection with obtaining an Acceptable Loan Facility, of any personal or other guarantees by any principals of Lender or by other any Releasee (as defined below) or the pledging of any assets by any principals of Lender or by other any Releasee (other than Lender); and
(i) Prior to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests funding of the LendersSecond Loan, the Director ▇▇▇▇▇▇▇ shall have delivered the Director ▇▇▇▇▇▇ Releases to Lender.
Appears in 1 contract
Sources: Secured Convertible Promissory Note (Momentus Inc.)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder on the Closing Date is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01) ), on or before the Acquisition Termination Date of each of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Dateprecedent:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Effective Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H heretooccurred.
(b) Since November 16, 2014, no “Company Material Adverse Effect” The Acquisition Agreement (as defined in the Allergan Merger Agreementincluding all schedules and exhibits thereto) shall not have occurred and be continuing.
(c) The Allergan Acquisition shall have beenbeen altered, amended or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers otherwise changed or consents thereto after November 16, 2014, by Ultimate Parent supplemented or any of its Affiliates provision waived or consented to in a manner that are is materially adverse to the interests Lenders without the prior written consent of the Lenders and not approved by the Lead Arrangers (which approval shall such consent not to be unreasonably withheld, conditioned delayed or delayedconditioned). It is ; it being understood and agreed that (a) (i) no increase any decrease in consideration the purchase price of less than 10% shall be deemed to not be materially adverse to the interests of the Lenders so long as such increase decrease, to the extent it decreases the maximum cash consideration, is solely in allocated to reduce the form of additional Equity Interests in Ultimate Parent term loan facility evidenced by this Agreement on a dollar-for-dollar basis and (ii) any amendment to the definition of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) decrease in the Allergan Merger Agreement purchase price of equal to or greater than 10% shall be deemed materially adverse to the interests of the Lenders, (b)(i) any increase in the purchase price equal to or greater than 10% of the purchase price shall be deemed materially adverse to the interests of the Lenders and (ii) any increase in the purchase price of less than 10% of the purchase price shall be materially adverse to the interests of the Lenders unless funded with equity proceeds or cash on hand or in the form of equity and (c) any amendment, modification, waiver or consent that results in a change to the definition of the term “Company Material Adverse Effect” (as defined in the Acquisition Agreement as in effect on January 4, 2021) shall be deemed to be materially adverse to the Lenders.
(c) The Firework Acquisition shall have been, or shall concurrently with the funding of the Loans be, consummated in accordance with the terms of the Acquisition Agreement, as such terms may be altered, amended or otherwise changed, supplemented, waived or consented to in accordance with Section 5.02(b).
(d) (i) The Acquisition Agreement Representations shall be true and correct in all material respects and (ii) the Specified Representations shall be true and correct in all material respects.
(e) The Administrative Agent shall have received: (A) audited consolidated balance sheets of the Borrower and the Acquired Company and related consolidated statements of income or operations, shareholders’ equity and cash flows, for each of the three most recently completed fiscal years ended at least 60 days before the Closing Date and (B) as soon as available and in any event within 40 days after the end of each subsequent fiscal quarter, an unaudited consolidated balance sheet of each of the Borrower and the Acquired Company and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the elapsed interim period following the last completed fiscal year and for the comparable periods of the prior fiscal year (the “Quarterly Financial Statements”); provided, that financial statements of the Acquired Company shall only be provided to the extent required by Rule 3-05 and Article 11 of Regulation S-X; provided further, that the Borrower’s and the Acquired Company’s public filing of any required financial statements with the U.S. Securities and Exchange Commission shall satisfy the requirements of clauses (A) and (B) of this Section 5.02(e).
(f) All fees due to the Administrative Agent, the Lead Arrangers and the Lenders required by the Commitment Letter or the Fee Letter to have been paid on or prior to the Closing Date shall have been paid, and all expenses required to be paid or reimbursed to the Administrative Agent and the Lead Arrangers that have been invoiced at least three business days prior to the Closing Date shall have been paid.
(g) The Refinancing shall have occurred concurrently with the funding of the Loans.
(h) The Administrative Agent shall have received a Solvency Certificate from the chief financial officer of the Borrower, certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Firework Acquisition and the related transactions, are solvent.
(i) (x) The Administrative Agent and each Lender (that makes a request in accordance with the terms below) shall have received, at least three (3) 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 Act, as is reasonably requested in writing by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Closing Date and (y) at least three (3) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests at least ten (10) Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Loan Party.
(j) Since the date of the Acquisition Agreement, there shall not been any event, change, effect, development, state of facts, condition circumstance or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Acquisition Agreement as in effect on January 4, 2021, without giving effect to any amendment thereof or consent thereunder).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Teledyne Technologies Inc)
Conditions to Borrowing. The obligation of each Lender Bank will not be obligated to make its Loans hereunder is subject solely to the receipt by the Administrative Agent of a Loan Notice therefor in accordance with Section 2.02 and to the satisfaction (or waiver in accordance with Section 11.01continue to make) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:
advances hereunder unless (i) a certificatethe Bank has received executed copies of the Notes and all other documents or agreements applicable to the loans described herein, dated including but not limited to the Closing Date documents specified in Article V (collectively with this Agreement the "LOAN DOCUMENTS"), in form and signed by a Responsible Officer of Ultimate Parent, certifying content satisfactory to the Bank; (ii) the Bank has received confirmation satisfactory to it that the conditions specified Bank has a properly perfected security interest with the proper priority in Sections 4.02(b), 4.02(c), 4.02(dany collateral securing advances hereunder; (iii) and 4.02(e) have been satisfied on and as the Bank has received certified copies of the Closing DateArticles of Incorporation and By-Laws and a certificate of status of the Borrower and the Subsidiaries; (iv) the Bank has received a certified copy of a resolution or authorization in form and content satisfactory to the Bank authorizing the loan and all acts contemplated by this Agreement and all related documents, and confirmation of proper authorization of all guaranties and other acts of third parties contemplated hereunder; (v) the Bank has been provided with an opinion of the Borrower's counsel in form and content satisfactory to the Bank confirming the matters outlined in paragraph 4.1 and such other matters as the Bank requests; (vi) no default exists under this Agreement or under any other Loan Documents, or under any other agreements by and between the Borrower and the Bank and no condition or event will exist or have occurred which with the passage of time, the giving of notice or both would constitute a default under this Agreement or under any other Loan Documents or under any other agreements by and between the Borrower and the Bank; (vii) all proceedings taken in connection with the transactions contemplated by this Agreement and all instruments, authorizations and other documents applicable thereto, will be satisfactory to the Bank and its counsel; (viii) the Bank has received evidence satisfactory to the Bank that the Borrower has obtained all required regulatory approvals for the acquisition by the Borrower of PFC and the Bank has received evidence satisfactory to the Bank that except for the funding of the term loan contemplated hereunder the Borrower has consummated the acquisition of PFC; (ix) the Bank has received its original Letter of Credit No. s102182 dated October 7, 1996, undrawn upon, in the form attached as Exhibit G heretoface amount of $1,000,000 issued for the account of the Borrower in favor of Park Financial Corporation; and
(iix) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as Bank has received evidence satisfactory to the financial condition Bank that the Borrower has raised $11,000,000 through the issuance and Solvency sale of Ultimate Parent and its Subsidiaries (on a consolidated basis, after giving effect to the Transactions), in the form attached as Exhibit H hereto.
(b) Since November 16, 2014, no “Company Material Adverse Effect” (as defined in the Allergan Merger Agreement) shall have occurred and be continuing.
(c) The Allergan Acquisition shall have been, or Junior Subordinated Deferrable Interest Debentures substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse application submitted to the interests Federal Reserve Bank of the Lenders and not approved by the Arrangers (Minneapolis, copies of which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that (i) no increase in consideration shall be deemed to be materially adverse were previously provided to the interests of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent Bank; and (iixi) any amendment the Bank has received evidence satisfactory to the definition Bank that the Borrower has raised $4,998,960 through the issuance and sale of “Company Material Adverse Effect” (including by means of any such amendment to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests of the Lenderscommon stock.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (United Community Bancshares Inc)
Conditions to Borrowing. The obligation of each Lender to make its Loans hereunder is subject solely following conditions apply to the receipt making of any Loan (unless otherwise indicated):
a. No Event of Default and no condition which would constitute an Event of Default with the giving of notice or lapse of time or both shall exist, and there shall not have occurred a Bankruptcy Event;
b. Each of the representations and warranties made by the Administrative Agent Borrowers herein shall be true and correct immediately prior to, and after giving effect to, such Loan;
c. The making of a such Loan Notice therefor in accordance with Section 2.02 shall not violate any requirement of law and to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent (or simultaneous, to the extent specified herein) on or after the Effective Date:
(a) The Administrative Agent’s receipt of the following, each of which may be delivered by facsimile or other electronic transmission (including “pdf” and “tif”), followed promptly after the Closing Date by originals, provided that the delivery of any originals shall not be a condition precedent to the Closing Date:enjoined, temporarily, preliminarily or permanently;
(i) a certificate, dated the Closing Date and signed by a Responsible Officer of Ultimate Parent, certifying that the conditions specified in Sections 4.02(b), 4.02(c), 4.02(d) and 4.02(e) have been satisfied on and as of the Closing Date, in the form attached as Exhibit G hereto; and
(ii) a certificate, dated the Closing Date and signed by the chief executive officer, chief financial officer or treasurer of Ultimate Parent, as to the financial condition and Solvency of Ultimate Parent and its Subsidiaries (on a consolidated basis, d. If after giving effect to a request for, and the Transactions)borrowing of, in a Loan, the form attached as Exhibit H hereto.Total Commitment Amount will not be exceeded;
(b) Since November 16e. For each Loan, 2014, no “Company Material Adverse Effect” there shall not have occurred and be continuing any Event of Default (as defined in the Allergan Merger AgreementDirector Notes) under any Director Notes;
f. There shall not have occurred any event, change, circumstance, effect or other matter that has, individually or in the aggregate, a material adverse effect on: (i) the financial condition or results of operations of the Borrower or its business, taken as a whole as of the date hereof; or (ii) the condition or value of any material portion of the Borrower’s assets;
g. The Borrower shall have sent a written borrowing notice (each, a “Borrowing Notice”) to the Lender setting forth (i) the amount of the Loan being requested, (ii) the date the Loan being requested is to be funded, which shall be at least five (5) Business Days after the date the Lender receives the Borrowing Notice, (iii) the intended use of the proceeds of the Loan, (iv) where the Loan funds should be wire transferred, including where the funds should be wired by the Lender to repay the Director Loans in connection with a borrowing of the Second Loan, (v) confirmation that no Events of Default have occurred and are continuing, and (vi) confirmation that all of the representations and warranties in this Secured Note are accurate as of the date of the Borrowing Notice and the requested Loan funding date. Each Borrowing Notice shall be continuing.signed by an authorized officer of the Borrower;
(c) The Allergan Acquisition h. With respect to the Second Loan, Lender shall use commercially reasonable efforts to timely obtain, and shall have beenobtained, or substantially simultaneously with the making of the Loans shall be, consummated in accordance with the terms of the Allergan Merger Agreement without giving effect financing to any amendments, modifications, supplements, waivers or consents thereto after November 16, 2014, by Ultimate Parent or any of its Affiliates that are materially adverse to the interests of the Lenders and not approved by the Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed). It is understood and agreed that fund (i) no increase in consideration shall be deemed to be materially adverse to the interests maximum amount of the Lenders so long as such increase is solely in the form of additional Equity Interests in Ultimate Parent Second Loan and (ii) a debtor in possession financing facility to be made available to Borrower (subject to final documentation, an agreed budget, and court approval) on terms that are at least as favorable as the following: (1) the aggregate amount of such facility and availability thereunder shall be not less than $6,000,0000, (2) the interest rate shall not be more than fourteen percent (14%) per annum, (3) any amendment origination fee and other fees and costs in aggregate shall not be more than two percent (2%) of the total facility amount financed, (4) the term of such facility shall not be less than thirty-six (36) months, and (5) the other terms of such facility shall be on terms no less favorable than set forth in this Secured Note (such financing, an “Acceptable Loan Facility”). If Lender determines in good faith, after using commercially reasonable efforts, that it cannot obtain an Acceptable Loan Facility, it will provide the Borrower with written notice of such determination within five (5) Business Days of receipt of a Borrowing Notice for the Second Loan (the “Second Loan Lender Notice”) which notice shall set forth the commercially reasonable efforts taken by Lender to obtain an Acceptable Loan Facility, the funding sources consulted by Lender to obtain an Acceptable Loan Facility (subject to any applicable non-disclosure agreements), and the reason(s) Lender has determined that it cannot obtain an Acceptable Loan Facility. Subject to the definition Borrower obtaining a final, non-appealable order from a court of “Company Material Adverse Effect” competent jurisdiction to the contrary, upon delivery of the Lender Notice, (including by means i) Lender shall have no further obligation or commitment to the Borrower to fund any other Loans (other than the First Loan) under this Secured Note, and (ii) Lender shall have no liability to the Borrower for any claims, actions, causes of action, proceedings, obligations, liabilities, losses and/or damages of any such amendment kind or character, whether in law or in equity, for not funding the requested Second Loan or for any other purported breaches by Lender of its obligations under this Secured Note. As used herein, “commercially reasonable efforts” shall exclude the provision, in connection with obtaining an Acceptable Loan Facility, of any personal or other guarantees by any principals of Lender or by other any Releasee (as defined below) or the pledging of any assets by any principals of Lender or by other any Releasee (other than Lender); and
i. Prior to the definition of “Effects”) in the Allergan Merger Agreement shall be deemed materially adverse to the interests funding of the LendersSecond Loan, the Director Lenders shall have delivered the Director ▇▇▇▇▇▇ Releases to Lender.
Appears in 1 contract
Sources: Secured Convertible Promissory Note (Momentus Inc.)