Common use of Conditions to Release from Escrow Clause in Contracts

Conditions to Release from Escrow. The release of the Escrow Property from the Escrow Account to (or as directed by) Staples or the Escrow Borrower on the Acquisition Effective Date is subject to the satisfaction or waiver (in accordance with Section 9.02) of the following additional conditions on or prior to the Escrow Conditions Deadline (such conditions, the “Escrow Conditions”): (a) The Acquisition will be consummated, substantially concurrently with the release of the Escrow Property, on substantially the terms of the Acquisition Agreement without giving effect to any amendments, modifications, supplements, consents or waivers by Staples thereto (other than such amendments, modifications, supplements, consents or waivers by Staples of any term thereof that are not materially adverse to any interest of the Lenders) unless consented to by the Arrangers (it being understood that (i) any amendment, modification, supplement, consent or waiver by Staples to the definition of “Material Adverse Effect” or the “Xerox” provisions in Sections 8.5(b), 8.6, 8.11, the last sentence of 8.12 and the last sentence of 8.14 of the Acquisition Agreement shall be deemed to be materially adverse and (ii) any amendment, modification, supplement, consent or waiver by Staples that results in a decrease of up to 15% of the Cash Consideration (as defined in the Acquisition Agreement) shall not be deemed to be materially adverse so long as the Initial Loans are prepaid (upon release from the Escrow Account on the Acquisition Effective Date) in an amount equal to the amount of any such decrease). (b) The Refinancing Transactions will be consummated prior to or substantially concurrently with the release of the Escrow Property, and the Administrative Agent shall have received the ABL Intercreditor Agreement, executed and delivered by an Authorized Officer of each party thereto. (A) Staples shall have executed and delivered a Borrower Assumption Agreement, (B) Staples and each Restricted Subsidiary of Staples (other than any Immaterial Subsidiary or any Excluded Foreign Subsidiary) shall have executed and delivered the Guarantee and Collateral Agreement, (C) Staples shall have delivered (as part of the Perfection Certificates) a correct and complete list of the name and jurisdiction of each and all of Staples’ Subsidiaries (completed on a pro forma basis giving effect to the Transactions), (D) each of Staples and the Target shall have executed and delivered a Perfection Certificate dated as of the Acquisition Effective Date, and (E) with respect to the Collateral: (i) the Collateral Agent shall have received, subject to the terms of the ABL Intercreditor Agreement, and unless otherwise agreed by the Collateral Agent (I) all certificates representing Equity Interests pledged under the Guarantee and Collateral Agreement to the extent certificated, accompanied by undated instruments of transfer or stock powers endorsed in blank, (II) the Subordinated Intercompany Note executed by the parties thereto accompanied by an undated instrument of transfer duly executed in blank and satisfactory to the Collateral Agent, (III) an Acknowledgment and Consent, substantially in the form of Exhibit D to the Guarantee and Collateral Agreement, duly executed by any issuer of Equity Interests pledged pursuant to the Guarantee and Collateral Agreement that is not itself a party to the Guarantee and Collateral Agreement and (IV) each promissory note pledged under the Guarantee and Collateral Agreement, duly executed (without recourse), in blank or accompanied by an undated instrument of transfer duly executed in blank and satisfactory to the Collateral Agent; (ii) all UCC or other applicable personal property and financing statements reasonably requested by the Collateral Agent to be filed, registered or recorded to perfect the Liens intended to be created by any Collateral Document shall have been delivered to the Collateral Agent for filing, registration or recording; and (d) The Administrative Agent shall have received a certificate of the secretary, assistant secretary or other Authorized Officer of each Loan Party dated the Acquisition Effective Date, substantially in the form delivered by the Escrow Borrower to the Administrative Agent on the Closing Date, and with appropriate resolutions relating to the applicable Transactions. (e) The Administrative Agent shall have received the Pro Forma Financial Statements and the financial statements described in Section 3.04(a). (f) The Administrative Agent shall have received a solvency certificate substantially in the form attached hereto as Exhibit G-2 with respect to Staples and its Restricted Subsidiaries, dated the Acquisition Effective Date (after giving effect to the Transactions) and signed by the chief financial officer of Staples. (g) The Administrative Agent shall have received the legal opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, special counsel to the Loan Parties, and other firms of counsel to the Loan Parties that are reasonably acceptable to the Administrative Agent, each (a) dated as of the Acquisition Effective Date, (b) addressed to the Administrative Agent, the Collateral Agent and the Lenders and (c) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent may reasonably require. The Borrower hereby instructs such counsel to deliver such opinions to the Administrative Agent, the Collateral Agent and the Lenders. (h) (A) Since September 27, 2014 through the date of the Acquisition Agreement, there not having been any Events that would, individually or in the aggregate, reasonably be expected to have an Acquisition Date Material Adverse Effect; provided that this clause (A) is qualified in its entirety by reference to (1) the information disclosed by the Target in any Company SEC Document (as defined in the Acquisition Agreement as in effect on February 4, 2015) filed under Sections 13(a), 14(a) or 15(d) of the Exchange Act (as defined in the Acquisition Agreement as in effect on February 4, 2015) during the period from December 31, 2013 through the Business Day (as defined in the Acquisition Agreement as in effect on February 4, 2015) prior to the date of the Acquisition Agreement (other than in any risk factor or other cautionary or forward-looking disclosure contained in such Company SEC Document) and (2) the exceptions set forth in the Company Disclosure Schedule (as defined in the Acquisition Agreement as in effect on February 4, 2015); it being understood and agreed that each exception set forth in the Company Disclosure Schedule shall qualify such condition to the extent such exception is specifically identified as being disclosed under Section 3.6 of the Acquisition Agreement or such exception is disclosed with reference to any other section of the Acquisition Agreement and it is reasonably apparent on the face of such disclosure that it relates to such Section 3.6, and (B) since the date of the Acquisition Agreement, there shall not have occurred any Events (other than Excluded Company Events (as defined in the Acquisition Agreement as in effect on February 4, 2015)) that, individually or in the aggregate, have had or would reasonably be expected to have an Acquisition Date Material Adverse Effect. (i) Each of the Specified Representations shall be true and correct in all material respects on and as of the Acquisition Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. Each of the Acquisition Agreement Representations shall be true and correct in all respects on the Acquisition Effective Date, expect to the extent any such Acquisition Agreement Representation is stated to relate solely to an earlier date, in which case such Acquisition Agreement Representation shall be true and correct as of such earlier date specified in the Acquisition Agreement. (j) The Lenders, the Arrangers and the Agents shall have received or, substantially concurrently with the release of the Escrow Property, will receive, all fees and other amounts due and payable on or prior to the Acquisition Effective Date, including, to the extent invoiced at least two Business Days prior to the Acquisition Effective Date, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, disbursements and other charges of counsel) required to be reimbursed or paid under any Loan Document or any other agreement. (k) The Escrow Property will be used in the manner described in Section 5.08. In connection with any release from the Escrow Account, the conditions set forth in this Section 4.02 will be deemed to have been satisfied upon delivery to the Escrow Agent of a certificate signed by an Authorized Officer of the Escrow Borrower confirming compliance therewith. Notwithstanding anything in this Agreement, the Escrow Agreement or any Loan Document to the contrary, the only representations and warranties the accuracy of which will constitute Escrow Conditions on the Acquisition Effective Date will be (a) the Acquisition Agreement Representations and (b) the Specified Representations.