Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 of the following conditions precedent: (a) The Effective Date shall have occurred. (b) The Acquisition shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement and the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent. (c) [Reserved]. (d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date). (e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company). (f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect. (g) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E. (h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof. (i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder. (j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company. (k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation This Agreement and the obligations of each Lender the Lenders to make a Loan Loans and of the Issuing Banks to make LC Credit Extensions hereunder shall become effective on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 first date when each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Effective Date shall have occurred.
(b) The Acquisition shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement and the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received the following, each of which shall be originals, telecopies or electronic copies unless otherwise specified, and each properly executed by a solvency certificate from the chief financial officer or principal accounting officer Responsible Officer of the Company in Borrower (other than with respect to subclauses (iv) and (v) below), each dated a date on or prior to the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.Closing Date:
(i) The executed counterparts of this Agreement from the Borrower;
(ii) a promissory note executed by the Borrower in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative AgentAgent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Lenders other Loan Documents to which the Borrower is a party or is to be a party;
(iv) a certificate of good standing for the Borrower from its jurisdiction of organization;
(v) a customary opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel to the Borrower, addressed to the Administrative Agent and each Lender (as of the Closing Date); and
(vi) a certificate signed by a Financial Officer of the Borrower certifying that the conditions specified in Section 4.02(a) and (b) have been satisfied.
(b) All reasonable and documented out-of-pocket fees and expenses of the Administrative Agent and the Arrangers shall have received all (in the case of legal fees, limited to the reasonable and documented fees and expenses of a single counsel for the Administrative Agent and the Arrangers) required to be paid on or before the Closing Date, in the case of expenses, to the extent invoiced at least two Business Days prior to the Closing Date, shall have been paid. The Borrower shall have paid all items then due and payable under any separate letter agreements with respect to fees payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreementthe syndication of the Loans and Commitments.
(c) Solely in the event that the Borrower requests Borrowings on the Closing Date, to the extent invoiced Administrative Agent shall have received a Borrowing Request in accordance with the requirements of Section 2.03 hereof.
(d) The Administrative Agent shall have received, at least three Business Days prior to the Closing Date, all documentation and other information regarding the Borrower required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including reimbursement or payment of all out-of-pocket expenses required without limitation the PATRIOT Act and, to be reimbursed or paid the extent applicable, the Beneficial Ownership Regulation, to the extent requested in writing by the Company hereunder.
(j) At any Lender at least three (3) ten Business Days prior to the Closing Date.
(e) Prior to, or substantially concurrently with, the Company Closing Date, all principal, interest and fees due under the Existing Credit Agreement shall have provided to been paid and all commitments thereunder shall have been terminated (the “Refinancing”). Upon the satisfaction or waiver of such conditions, the Administrative Agent shall notify the documentation Borrower and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to Lenders of the Closing Date in order to comply with applicable lawwriting, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by and such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoconclusive and binding.
Appears in 1 contract
Sources: Credit Agreement (Nasdaq, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 of the following conditions precedent:
(a) The Effective Date shall have occurred.
(b) The Acquisition Buyer shall have been consummated paid (or shall be consummated or, substantially concurrently contemporaneously with the closing initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in accordance with the Offer pursuant to the Acquisition Agreement and the Acquisition Agreement shall not have been amended without giving effect to any modifications, consents, amendments or modified, and no condition shall have been waived waivers thereto or consent granted by the Company, thereunder that in each case, in any respect that is case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers without the Arrangers’ prior shall have provided their written consent, which consent shall not be unreasonably withheld, conditioned or delayed thereto (it being understood and agreed that (i) any decrease reduction in the aggregate cash and stock consideration set forth “Offer Consideration” (as defined in the Acquisition Agreement (such aggregate considerationas in effect on October 27, the “Acquisition Consideration”2016) in excess of 10less than 5% shall will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) any decrease in increases the total Acquisition Offer Consideration equal to or less by more than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and or (iii) makes any increase in Acquisition Consideration that is not funded with equity (or proceeds of equitymodification to Sections 2.04(a)(v) or cash 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on hand shall the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since Since the date of the Acquisition Agreement, there shall not have been an Acquired Business occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent or the Lenders on or before the Closing Date, including pursuant to any Fee Letter, shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(g) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company Borrower in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.B.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at At least three Business Days prior to the Closing Date, including reimbursement or payment of the Borrower shall have provided to the Administrative Agent and the Lenders all outdocumentation and other information required by regulatory authorities under applicable “know your customer” and anti-of-pocket expenses required to be reimbursed or paid by money laundering rules and regulations, including, without limitation, the Company hereunder.
(j) At least three (3) PATRIOT Act, that has been requested in writing not less than ten Business Days prior to the Closing Date, .
(j) At the Company shall have provided time of and upon giving effect to the Administrative Agent borrowing and application of the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to Loans on the Closing Date, (i) each Acquisition Representation shall have received a Beneficial Ownership Certification in relation be true and correct (but only to the Companyextent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to be true and correct), (ii) the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date shall be) paid in full, all commitments (if any) in respect thereof terminated and all guarantees (if any) thereof and security (if any) therefor discharged and released: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc., as administrative agent, (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Barclays Bank PLC, as administrative agent, and (c) that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate, certificate dated the Closing Date and signed by the President or from a Vice President Responsible Officer of the Company, or a Financial Officer, certifying as to Borrower confirming the satisfaction of the conditions precedent described in Section 4.02(bparagraphs (b), 4.02(d(c), 4.02(e(j) and 4.02(f)(k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to the registration status of the Borrower under the Investment Company Act of 1940, in form and substance reasonably satisfactory to the Administrative Agent. Without limiting the generality of the provisions of the last paragraph of Section 9.049.03, for purposes of determining compliance with the conditions specified in this Section Sections 4.01 and 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Qualcomm Inc/De)
Conditions to the Closing Date. The obligation of each Lender Lenders’ obligations to make a Loan on the Closing Date is Loans shall be subject solely only to the satisfaction or waiver accordance with Section 11.01 all of the following conditions precedentprecedent having been satisfied (or waived in accordance with Section 10.01) on or prior to the Commitment Termination Date:
(a) The the Effective Date shall have occurred.;
(b) The the Pinnacle Acquisition shall have been consummated (or shall be consummated or, substantially concurrently contemporaneously with the closing hereundermaking of the Loans, shall be) in accordance with consummated pursuant to the Pinnacle Acquisition Agreement and the Acquisition Agreement shall not have been amended without giving effect to any modifications, consents, amendments or modifiedwaivers thereto that, and no condition shall have been waived or consent granted by the Companytaken as a whole, in each case, in any respect that is are materially adverse to the Lenders or interests of the Arrangers without Lenders, unless the Arrangers’ prior Syndication Agent shall have provided its written consent, which consent shall not be unreasonably withheld, conditioned or delayed thereto (it being understood and agreed that (i) any decrease change in the aggregate cash and stock purchase consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 1010.0% shall in respect of the Pinnacle Acquisition will be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the ArrangersLenders); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.;
(c) [Reserved].
there shall not have occurred: (da) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materialityfrom December 31, which representations and warranties shall be true and correct in all respects after giving effect 2017 through to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Pinnacle Acquisition Agreement, there shall not any event, change, effect, development, state of facts, condition, circumstance or occurrence, individually or in the aggregate with all other events, changes, effects, developments, states of facts, conditions, circumstances and occurrences in the business, results of operations, properties, assets, liabilities, operations or financial condition of Pinnacle that, individually or in the aggregate, has had, or that would reasonably be expected to have been an Acquired Business Material Adverse Effect.
, except as set forth in the (gi) The Administrative Agent shall have received a solvency certificate from reports publicly filed with the chief financial officer SEC prior to the date of the Pinnacle Acquisition Agreement (excluding, in each case, any disclosures set forth in any risk factor section or principal accounting officer in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature) or (ii) corresponding sections or subsections of the Company Disclosure Letter (as defined in the form attached hereto Pinnacle Acquisition Agreement in effect as Exhibit E.
of June 26, 2018) (h) The Administrative Agent it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall have received a Committed Loan Notice in accordance be deemed disclosure with respect to any other section or subsection of the requirements hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, Company Disclosure Letter to the extent invoiced at least three that the relevance of such item to such section or subsection is reasonably apparent on its face), or (b) from the date of the Pinnacle Acquisition Agreement, 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, an Acquired Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.Material Adverse Effect;
(jd) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender (except to the extent not required by the Administrative Agent) (i) audited financial statements of the Company for each of its three most recent fiscal years ended at least 60 days prior to the proposed Closing Date specifying Date; (ii) unaudited financial statements of the Company for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its objection thereto.most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date; and
Appears in 1 contract
Conditions to the Closing Date. The obligation of each Lender (i) to make a Loan the Loans on the Closing Date is subject solely to the satisfaction (or waiver accordance with Section 11.01 by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent, on the Closing Date, or (ii) to pre-fund the Loans on the Pre-Closing Funding Date pursuant to Section 2.2(c)(ii) is subject to the satisfaction (or waiver by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent (in each case in this clause (ii), other than the Black Knight Acquisition Related Conditions), on the Pre-Closing Funding Date:
(a) The Effective Date Borrowing of such Loans shall have occurred.occur on the Black Knight Acquisition Date, which shall be on or before the earlier to occur of (i) the termination or expiration of the Black Knight Acquisition Agreement in accordance with its terms, and (ii) the “Outside Date” (as defined in the Black Knight Acquisition Agreement as in effect on May 4, 2022) as such date may be extended in accordance with the Black Knight Acquisition Agreement as in effect on May 4, 2022;
(b) Since the date of the Black Knight Acquisition Agreement, there shall not have been any event, circumstance, occurrence, effect, fact, development or change that has had, or would reasonably be expected to have, individually or in the aggregate, a “Material Adverse Effect” (as defined in the Black Knight Acquisition Agreement);
(c) The Initial Arrangers shall have received a certificate of the chief financial officer of the Borrower as to the solvency of the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Black Knight Transactions, in the form of Exhibit F;
(d) The Black Knight Acquisition shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) Borrowing of such Loans, and substantially in accordance with the terms and conditions of the Black Knight Acquisition Agreement and the Acquisition Agreement shall not have been amended or modifiedwithout giving effect to any waiver, and no condition shall have been waived modification or consent granted by the Company, in each case, in any respect thereunder that is materially adverse to the Lenders or the Initial Arrangers without (as reasonably determined by the Initial Arrangers’ prior written consent, ) unless approved by the Initial Arrangers (which consent approval shall not be unreasonably withheld, conditioned or delayed (delayed), it being understood and agreed that that, without limiting the generality of the foregoing, (i1) any decrease in the aggregate cash Black Knight Acquisition consideration shall not be materially adverse to the Lenders or the Initial Arrangers so long as such decrease is allocated to reduce the Black Knight Borrower Stock Contribution and stock consideration set forth the Black Knight Bridge Facility on a pro rata, dollar-for-dollar basis, (2) any increase in the Acquisition Agreement purchase price shall not be materially adverse to the Lenders or the Initial Arrangers so long as such increase is funded solely by an increase in the amount of the Black Knight Borrower Stock Contribution and (such aggregate consideration, 3) any change to the definition of “Material Adverse Effect” or the “Acquisition Consideration”) in excess of 10% Xerox” provisions shall be deemed to be a modification which is materially adverse to the Lenders and the Initial Arrangers, ;
(iie) any decrease The representations and warranties made by or with respect to Black Knight and its Subsidiaries in the total Black Knight Acquisition Consideration equal Agreement as are material to or less than 10% the interests of the Lenders (the “Black Knight Acquisition Agreement Representations”) shall be deemed not materially adverse to the Lenders true and the Arrangers correct, but only to the extent that the cash portion Borrower or any of such decrease is applied its Affiliates has the right to reduce terminate its or its Subsidiaries’ obligations under the Commitments on a dollar-for-dollar basis and (iii) any increase in Black Knight Acquisition Consideration that is not funded with equity (Agreement, or proceeds of equity) or cash on hand shall be deemed to be materially adverse decline to consummate the Black Knight Acquisition pursuant to the Lenders Black Knight Acquisition Agreement, as result of a breach of any such representations and the Arrangers); provided that the Arrangers will be deemed to have consented warranties or any such representations and warranties not being accurate (in each case, determined without regard to any such amendmentnotice requirement). The representations and warranties of the Borrower set forth in Sections 4.1(i), modification4.1(ii) (but only with respect to the Borrower’s power and authority to execute, waiver or consent unless they object thereto in writing deliver and perform the Credit Documents to which it is a party), 4.2, 4.3 (including via emailbut only with respect to clause (i) within ten therein), 4.7, 4.11, 4.12 (10but only with respect to the Borrower’s use of proceeds) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations 4.13 shall be true and correct in all material respects (except for representations that any representation and warranties that are already warranty qualified by materiality, which representations and warranties as to materiality or Material Adverse Effect shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier daterespects).;
(ef) No Event of Default under Section 8.1(a), 8.1(f) or 8.1(g), nor any “event of default” or similar condition under the Black Knight Bridge Facility, the Revolving Credit Agreement (unless terminated on or prior to the Closing Date), or any other Indebtedness in excess of the Threshold Amount in the aggregate (but, in each case, only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred or and be continuing under Section 8.01(a) or 8.01(f) (solely in respect of on such date, both immediately before and immediately after giving effect to the Company).Loans to be made on such date;
(fg) Except as set forth in The Initial Arrangers shall have received (i) copies of audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Disclosure Schedules Borrower and its subsidiaries for the three fiscal years most recently ended at least 90 days prior to the Acquisition Agreement Closing Date (or such lesser time applicable to the Borrower as in effect on July 25the annual report deadline under the Securities Exchange Act of 1934, 2021as amended, since and the rules and regulations thereunder) and interim unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for each subsequent quarterly period after the date of the last audited financial statements pursuant to this clause (i) (other than the fourth fiscal quarter of any fiscal year) ended at least 45 days prior to the Closing Date (or such lesser time applicable to the Borrower as the quarterly report deadline under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) (it being understood and acknowledged by the Initial Arrangers that the audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Borrower and its subsidiaries filed with the SEC, as of the date hereof, for the three years ended December 31 2019, 2020 and 2021 and for the three months ended March 31, 2022 satisfy the obligation to provide such financial information for the periods covered by such filings), and (ii) copies of all financial statements of Black Knight delivered to the Borrower pursuant to the Black Knight Acquisition Agreement;
(h) On the Black Knight Acquisition Date, there after giving effect to the Black Knight Transactions, the obligations of Black Knight and its subsidiaries under that certain Second Amended and Restated Lien Credit and Guaranty Agreement, dated as of March 10, 2021 (as amended, restated, supplemented or otherwise modified from time to time), among Black Knight Infoserv, LLC, a Delaware limited liability company (the “Black Knight Borrower”), Black Knight Financial Services, LLC, a Delaware limited liability company, each subsidiary of the Black Knight Borrower from time to time party thereto as guarantors, the lenders from time party thereto, JPMorgan Chase Bank, N.A., as the administrative agent, a swing line lender and an L/C issuer, Bank of America, N.A., as a swing line lender and an L/C issuer, and U.S. Bank National Association, as a swing line lender an L/C issuer, shall not have been an Acquired Business Material Adverse Effect.repaid in full and all guarantees and security interests shall have been terminated and released;
(gi) The Administrative Agent shall have received a solvency certificate from Notice of Borrowing in accordance with Section 2.2(b) and, if any SOFR Loans are to be borrowed on the chief financial officer Closing Date (or principal accounting officer of pre-funded on the Company in Pre-Closing Funding Date) and such date is prior to the form attached hereto as Exhibit E.
(h) The third Business Day after the Effective Date, the Administrative Agent shall have received received, three Business Days prior to such date, a Committed Loan Notice in accordance with customary pre-funding SOFR indemnity letter from the requirements hereof.Borrower;
(ij) The Administrative Agent, aggregate principal of such Loans shall not exceed the Lenders and the Arrangers shall have received all aggregate Commitments at such time (determined without giving effect to such Loans);
(k) All fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, (to the extent invoiced at least two Business Days prior to the Closing Date) expenses due to the Initial Arrangers, the Administrative Agent and the Lenders required to be paid on the Closing Date (including the fees and expenses of counsel for the Initial Arrangers and the Administrative Agent) will have been paid;
(l) At least three Business Days prior to the Closing DateDate (or, including reimbursement or payment of all outif a Pre-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing DateFunding Election has been made, the Company shall Pre-Closing Funding Date), the Borrower will have provided to the Administrative Agent the documentation and other customary information reasonably to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation, but only to the extent that the Lenders shall have requested by the Administrative Agent or any Lender not less than ten (10) such documentation and other information at least 10 Business Days prior to the Closing Date in order to comply with applicable law(or, including if a Pre-Closing Funding Election has been made, the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten Pre-Closing Funding Date); and
(10m) Business Days prior to the Closing Date, The Effective Date shall have received a Beneficial Ownership Certification in relation to the Companyoccurred.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
Conditions to the Closing Date. The obligation of the L/C Issuer and each Lender to make a Loan its initial Credit Extension hereunder on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 of the following conditions precedent:
(a) The Effective Date Administrative Agent's receipt of the following, each of which shall have occurred.be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date:
(bi) The Acquisition shall a pledge agreement, in substantially the form of Exhibit G (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Pledge Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) evidence that all other actions, recordings and filings that the Administrative Agent may reasonably deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement have been consummated taken;
(ii) evidence of (A) the substantial simultaneous repayment, defeasance or shall be consummated substantially concurrently call for redemption (together with concurrent discharge thereof), as applicable, of (i) the closing hereunderExisting Credit Agreements, (ii) in accordance with the Acquisition Agreement Borrower's 6.190% notes due July 5, 2016, (iii) the Borrower's 6.140% notes due January 20, 2017, (iv) the Borrower's 2.590% notes due September 28, 2017, (v) the Borrower's 3.275% notes due January 20, 2017 and (vi) the Acquisition Agreement shall not have been amended or modifiedBorrower's 1.676% notes due May 25, 2022 (clauses (ii) through (vi), collectively, the "Existing Notes"), and no condition shall have been waived or consent granted by (B) to the Companyextent applicable, the termination of any commitments under any Indebtedness pursuant to clause (A), the release of any guarantees of such Indebtedness and, to the extent applicable, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consentdischarge of all Liens and security interests securing such Indebtedness (including receipt of payoff letters, which consent shall not be unreasonably withheld, conditioned or delayed UCC-3 termination statements and other applicable terminations) (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate considerationcollectively, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and "Refinancing"); and
(iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds A) a favorable opinion of equity) or cash on hand shall be deemed to be materially adverse S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, counsel to the Lenders Loan Parties and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment(B) a favorable opinion of D. M▇▇▇▇▇▇ ▇▇▇▇▇, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except Utah counsel to the extent that such representations and warranties specifically refer to an earlier dateLoan Parties, in which each case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided addressed to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, reasonably satisfactory to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the CompanyLenders.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject solely to the satisfaction (or waiver in accordance with Section 11.01 11.01) of the following conditions precedent:
(a) The Effective Closing Date shall have occurred.
(b) The Acquisition shall have been consummated (or shall be consummated consummated, substantially concurrently with the closing borrowing of the Loans hereunder) , in accordance with the Acquisition Agreement in all material respects and without giving effect to any amendments, modifications or supplements of or to the Acquisition Agreement, or any waivers of any provision or condition therein, or any grants of any consent thereunder (directly or indirectly, including as a result of a consent under any other Transaction Document (as defined in the Acquisition Agreement shall not have been amended or modifiedas in effect on the Signing Date)), and no condition shall have been waived or consent granted by the CompanyCompany or any of its Subsidiaries, that are, individually or in each casethe aggregate, in any respect that is materially adverse to the interests of the Lenders or (in their capacities as such), without the prior written consent of the Arrangers without the Arrangers’ prior written consent, which (such consent shall not to be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangersdelayed); provided that the Arrangers will shall be deemed to have consented to any such amendment, modification, supplement, waiver or consent unless they an Arranger shall object thereto in writing thereto within three (including via email) within ten (103) Business Days of receipt of written notice being notified by the Company of such amendment, modification, supplement, waiver or consentconsent and being provided with a copy thereof; provided, further, that (i) any reductions to the aggregate consideration for the Closing Date Acquisition that do not exceed, when taken together with all prior reductions, 15% of the original aggregate consideration for the Closing Date Acquisition shall not be deemed to be materially adverse to the interests of the Lenders (in their capacities as such), so long as the Commitments are reduced on a dollar-for-dollar basis by any reductions in the cash component of the aggregate consideration for the Closing Date Acquisition, (ii) any reductions to the aggregate consideration for the Closing Date Acquisition that exceed, when taken together with all prior reductions, 15% of the original aggregate consideration for the Closing Date Acquisition shall be deemed to be materially adverse to the interests of the Lenders (in their capacities as such) and (iii) any increases to the cash component of the aggregate consideration for the Closing Date Acquisition that do not exceed, when taken together with all prior such increases, 15% of the original cash component of the aggregate consideration for the Closing Date Acquisition shall not be deemed to be (and any such increases that exceed 15% of the original cash component of the aggregate consideration for the Closing Date Acquisition will be deemed to be) materially adverse to the interests of the Lenders (in their capacities as such).
(b) Since the date of the Acquisition Agreement, there shall not have been a Business Material Adverse Effect.
(c) [Reserved]The Administrative Agent shall have received: (i) with respect to the Company, (x) audited consolidated balance sheets and related consolidated statements of earnings (loss), comprehensive earnings (loss), equity and cash flows of the Company as of the end of and for each of the last three full fiscal years ended at least 60 days prior to the Closing Date and (y) unaudited consolidated balance sheets and related consolidated statements of earnings (loss), comprehensive earnings (loss), equity and cash flows of the Company as of the end of and for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year), in each case which are prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, and it being understood and agreed that, with respect to any such financial statements for each such fiscal year and fiscal quarter, such condition shall be deemed satisfied through the filing by the Company of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or fiscal quarter containing such financial statements (provided that a subsequent Form 8-K, Item 4.02 has not been filed with respect to the financial statements included therein), and (ii) with respect to the Acquired Business, (x) the unaudited combined balance sheets of the Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for each fiscal quarter ending after December 31, 2024, with comparative financial information for the equivalent period of the prior year, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the end of such quarter and, in any event, no later than 45 days after end of such quarter, (y) the audited combined balance sheets of the Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for the fiscal years ended December 31, 2023 and December 31, 2024 prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the Signing Date, but in any event no later than 135 days after the Signing Date and (z) the audited combined balance sheets of the Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for the fiscal years ended December 31, 2025 and December 31, 2026 prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the end of such fiscal year and, in any event, no later than sixty (60) days after the end of such year. The Administrative Agent hereby acknowledges receipt of the financial statements in the foregoing clause (i) with respect to the Company for fiscal years ended December 31, 2022, December 31, 2023 and December 31, 2024.
(d) The Administrative Agent shall have received (i) a pro forma consolidated balance sheet for the Company and the Acquired Business dated as of the date of the most recent balance sheet required to be delivered under clause (i) of Section 4.02(c) and (ii) pro forma consolidated statements of comprehensive earnings (loss) for the Company and the Acquired Business for each of (x) the most recent fiscal year of the Company for which audited consolidated financial statements are required to be delivered under clause (i) of Section 4.02(c) and (y) the interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited financial statements of the Company required to be delivered under clause (i) of Section 4.02(c), in each case giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of the fiscal year described in the foregoing clause (ii)(x) (in the case of the statements of comprehensive earnings (loss)), which financial statements shall be required to meet the requirements of Article 11 of Regulation S-X under the Securities Act of 1933.
(e) The Administrative Agent shall have received (i) a certificate dated the Closing Date and signed by a Responsible Officer of the Company as to the satisfaction of the conditions precedent set forth in clauses (a), (b) and (f) of this Section 4.02, (ii) a duly executed Loan Notice complying with the terms of Section 2.02 and (iii) a solvency certificate from the chief financial officer, executive vice-president or treasurer of the Company in the form attached as Exhibit B hereto certifying that the Company and its Subsidiaries, on a consolidated basis on the Closing Date after giving effect to the Transactions, are solvent.
(f) At the time of and after giving effect to the Borrowing and application of the proceeds of the Loans on the Closing Date, (i) the Acquisition Agreement Representations shall be true and correct; provided that a failure of an Acquisition Agreement Representation to be accurate will not result in a failure of a condition to funding set forth in this clause (f)(i) unless such failure results in a failure of a condition precedent to the Company’s (or the Company’s applicable Subsidiaries’) obligation to consummate the Closing Date Acquisition pursuant to the terms of the Acquisition Agreement or such failure gives the Company (or the Company’s applicable Subsidiaries) the right (taking into account any notice and cure provisions) to terminate the Company’s (or the Company’s applicable Subsidiaries’) obligation to consummate the Closing Date Acquisition pursuant to the terms of the Acquisition Agreement, (ii) the Specified Representations shall be true and correct in all material respects (except for representations and warranties without duplication of any materiality qualifier set forth therein); provided that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties any Specified Representation specifically refer refers to an earlier date, in which case they such representation shall be true and correct accurate in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such without duplication of any materiality qualificationqualifier set forth therein) as of such earlier date).
date and (eiii) No no Event of Default shall have occurred or be continuing under (x) Section 8.01(a) (solely with respect to the non-payment of fees due and payable by the Company under this Agreement) or (y) Section 8.01(f) (solely in with respect of to the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effectoccurred and be continuing.
(g) The Administrative Agent Company shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received paid all fees and expenses due under that (x) certain Arranger Fee Letter, dated as of the Signing Date, among the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Fargo Bank, National Association and payable on or prior ▇▇▇▇▇ Fargo Securities, LLC and (y) certain Administrative Agent Fee Letter, dated as of the Signing Date, among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇, in each case, that are referred to in the Closing Date which are required to be paid pursuant to or Term Loan Commitment Letter (collectively, the “Term Loan Fee Letters”), and in connection with this Agreementthe case of expenses and legal fees, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
two (j) At least three (32) Business Days prior to the Closing Date, the Company shall have provided and required to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to be paid on the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Fidelity National Information Services, Inc.)
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans on the Closing Date is are subject solely to the satisfaction or waiver accordance with Section 11.01 each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.01(e)(i)Section 9.02) on or prior to the Closing Date:
(a) The the Effective Date shall have occurredoccurred or shall occur simultaneously with the Closing Date.
(b) The Acquisition the Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel to the Borrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement Investment Agreements, and the Acquisition Agreement Investment Agreements shall not have been amended or modifiedmodified by the Company, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”Subscription Agreement) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided , and (ii) (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Arrangers will Investment Consideration, together with any other increases since the date of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case shall be deemed not to have consented be materially adverse to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].the Lenders);
(d) The Acquisition since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of Canopy set forth therein;
(f) the Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the Closing Date and executed by a Financial Officer of the Company;
(g) the Specified Representations and Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already or if qualified by materialitymateriality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualificationrespects) as of such earlier date).;
(eh) No Event of Default the Administrative Agent and the Arrangers shall have occurred or be continuing under Section 8.01(areceived:
(i) or 8.01(fwith respect to the Company and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income (solely in respect loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the Company).required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(fii) Except as set forth in the Disclosure Schedules with respect to the Acquisition Agreement as in effect on July 25Target and its Subsidiaries, 2021(i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the date last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.required financial statements on Form 40-F and Form 6-K by the Target will satisfy the foregoing requirements;
(gi) The the Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice Borrowing Request in accordance with the requirements hereof.Section 2.03; and
(ij) The Administrative Agent, the Lenders and the Arrangers Company shall have received paid, by wire transfer of immediately available funds, all fees reasonable and expenses documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable on or prior to as previously agreed in the Closing Date which are required to be paid pursuant to or Commitment Letter and Fee Letter, in connection with this Agreementthe case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Restatement Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans on the Closing Date is are subject solely to the satisfaction or waiver accordance with Section 11.01 each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The the Effective Date shall have occurred.occurred or shall occur simultaneously with the Closing Date;
(b) The Acquisition the Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel to the Borrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement Investment Agreements, and the Acquisition Agreement Investment Agreements shall not have been amended or modifiedmodified by the Company, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers Arranger without the Arrangers’ Arranger’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”Subscription Agreement) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided Arranger, and (ii) (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Arrangers will Investment Consideration, together with any other increases since the date of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case shall be deemed not to have consented be materially adverse to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].the Lenders);
(d) The Acquisition since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of the Target set forth therein;
(f) the Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the Closing Date and executed by a Financial Officer of the Company;
(g) the Specified Representations and Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already or if qualified by materialitymateriality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualificationrespects) as of such earlier date).;
(eh) No Event of Default the Administrative Agent and the Arranger shall have occurred or be continuing under Section 8.01(areceived:
(i) or 8.01(fwith respect to the Company and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income (solely in respect loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the Company).required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(fii) Except as set forth in the Disclosure Schedules with respect to the Acquisition Agreement as in effect on July 25Target and its Subsidiaries, 2021(i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the date last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.required financial statements on Form 40-F and Form 6-K by the Target will satisfy the foregoing requirements;
(gh) The the Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice Borrowing Request in accordance with the requirements hereof.Section 2.03; and
(i) The Administrative Agent, the Lenders and the Arrangers Company shall have received paid, by wire transfer of immediately available funds, all fees reasonable and expenses documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable on or prior to as previously agreed in the Closing Date which are required to be paid pursuant to or Commitment Letter and Fee Letter, in connection with this Agreementthe case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Bridge Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make a Loan the Loans on the Closing Date is subject solely to the satisfaction (or waiver accordance with Section 11.01 by the Administrative Agent) of the following conditions precedent, and only the following conditions precedent, on the Closing Date:
(a) The Effective Date Borrowing of such Loans shall have occurred.occur on or before the Ellie Mae Acquisition Date, which shall be on or before the earlier to occur of (i) the termination or expiration of the Ellie Mae Acquisition Agreement in accordance with its terms, and (ii) the “Outside Date” (as defined in the Ellie Mae Acquisition Agreement as in effect on August 6, 2020) as such date may be extended in accordance with the Ellie Mae Acquisition Agreement as in effect on August 6, 2020 (but in any event not later than August 6, 2021);
(b) The Acquisition Administrative Agent shall have been consummated received a certificate of the chief financial officer of the Borrower as to the solvency of the Borrower and its Subsidiaries, on a consolidated basis, in the form of Exhibit F;
(or c) The conditions set forth in Article VII of the Ellie Mae Acquisition Agreement (other than those conditions that by their nature are to be satisfied at the “Closing” (as defined in the Ellie Mae Acquisition Agreement)) shall be consummated satisfied substantially concurrently with the closing hereunder) in accordance with the terms and conditions of the Ellie Mae Acquisition Agreement and the Acquisition Agreement shall not have been amended or modifiedwithout giving effect to any waiver, and no condition shall have been waived modification or consent granted by the Company, in each case, in any respect thereunder that is materially adverse to the Lenders or the Arrangers without Initial Arranger (as reasonably determined by the Arrangers’ prior written consent, Initial Arranger) unless approved by the Initial Arranger (which consent approval shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangersdelayed); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].;
(d) The Acquisition Agreement Representations representations and warranties of the Specified Representations Borrower set forth in Sections 4.1(i), 4.1(ii) (but only with respect to the Borrower’s power and authority to execute, deliver and perform the Credit Documents), 4.2, 4.3 (but only with respect to clause (i) therein), 4.7, 4.11, 4.12 (but only with respect to the Borrower’s use of proceeds) and 4.13 shall be true and correct in all material respects (except for representations that any representation and warranties that are already warranty qualified by materiality, which representations and warranties as to materiality or Material Adverse Effect shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier daterespects).;
(e) No Event of Default under Section 8.1(a), 8.1(f) or 8.1(g), nor any “event of default” or similar condition under the Bridge Facility, the Revolving Credit Agreement (unless terminated on or prior to the Closing Date), or any other Indebtedness in excess of the Threshold Amount in the aggregate (but only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred or and be continuing under Section 8.01(a) or 8.01(f) (solely in respect of on such date, both immediately before and immediately after giving effect to the Company).Loans to be made on such date;
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received a solvency certificate Notice of Borrowing in accordance with Section 2.2(b) and, if any LIBOR Loans are to be borrowed on the Closing Date and such date is prior to the third Business Day after the Effective Date, the Administrative Agent shall have received, three Business Days prior to such date, a customary pre-funding LIBOR indemnity letter from the chief financial officer or Borrower;
(g) The aggregate principal accounting officer of such Loans shall not exceed the Company in the form attached hereto as Exhibit E.aggregate Commitments at such time (determined without giving effect to such Loans);
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all All fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, (to the extent invoiced at least three two Business Days prior to the Closing Date) expenses due to the Initial Arranger, including reimbursement or payment of all out-of-pocket expenses the Administrative Agent and the Lenders required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to on the Closing Date in order to comply with applicable law, (including the Patriot Act. If fees and expenses of counsel for the Company qualifies as a “legal entity customer” under Initial Arranger and the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten Administrative Agent) will have been paid; and
(10i) Business Days prior to the Closing Date, The Effective Date shall have received a Beneficial Ownership Certification in relation to the Companyoccurred.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
Conditions to the Closing Date. The effectiveness of the Commitments and the obligation of each any Lender to make a Loan on the Closing Date is are subject solely to the satisfaction (or waiver in accordance with Section 11.01 9.05) solely of the following conditions precedentconditions:
(a) The Effective Date shall have occurred.
(b) The receipt by the Administrative Agent of:
(i) a Notice of Borrowing as required by Section 2.02; and
(ii) a Solvency Certificate.
(c) all fees and expenses required to be paid on or before the Closing Date (in the case of expenses, for which the Borrower has been billed at least two (2) Domestic Business Days prior to the Closing Date), including the reasonable and documented fees and expenses of one counsel for the Administrative Agent and the Lead Arranger shall have been paid;
(d) the Acquisition shall have been consummated (or shall will be consummated substantially concurrently with the closing hereunder) funding of the Loans in accordance with the Acquisition Agreement and no amendment, modification, consent or waiver of any term thereof or any condition to the Buyer’s obligation to consummate the Acquisition Agreement shall thereunder (other than any such amendment, modification, consent or waiver that is not have been amended or modified, and no condition materially adverse to any interest of the Lenders) shall have been waived made or consent granted by granted, as the Companycase may be, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed of the Lead Arranger (it being understood and agreed that (i) any decrease change in the aggregate cash consideration payable or the price (excluding any price decrease of less than 10% of the consideration paid or payable or any price increase funded with equity of the Borrower less than such 10%), (ii) any material change to the structure of the Acquisition and stock consideration (iii) any change in the definition of “Material Adverse Effect” or any lender protection provisions set forth in the Acquisition Agreement (such aggregate considerationon September 20, the “Acquisition Consideration”) 2018, in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall each case will be deemed to be materially adverse to the interests of the Lenders and will require the Arrangersprior written consent of the Lead Arranger); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.;
(ce) [Reserved].except as set forth in Section 3.8 of the Seller Disclosure Schedule (as defined in the Acquisition Agreement on September 20, 2018) as in effect on September 20, 2018, since December 31, 2017 there shall not have been any change, event or development that would, individually or in the aggregate, have a Target Material Adverse Effect;
(df) The At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects and (except for representations and warranties that are already qualified by materiality, which representations and warranties ii) there shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No not exist any Default or Event of Default shall have occurred or be continuing under Section 8.01(aclauses (a), (g) or 8.01(f(h) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.Section 6.01;
(g) The Administrative Agent shall have received a solvency certificate dated the Closing Date from the chief financial officer or principal accounting officer a Responsible Officer of the Company Borrower confirming the satisfaction of the conditions precedent described in the form attached hereto as Exhibit E.clauses (d), (e) and (f) of this Section 3.02; and
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) The Administrative Agent, audited consolidated financial statements of the Lenders and Borrower for each of the Arrangers shall have received all fees and expenses due and payable on or last three full fiscal years ended more than 90 days prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to and (ii) unaudited consolidated financial statements of the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less Borrower for each subsequent fiscal quarter ended more than ten (10) Business Days 45 days prior to the Closing Date in order to comply with applicable law(and for the corresponding period(s) of the prior fiscal year), including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, all of which shall have received a Beneficial Ownership Certification been reviewed by the independent accountants for the Borrower as provided in relation to Statement on Auditing Standards No. 100; provided that the Company.
(k) The Administrative Agent shall have hereby acknowledges that it has received a certificate, dated the Closing Date and signed by the President or a Vice President audited consolidated financial statements of the Company, or a Financial Officer, certifying as to the satisfaction Borrower in respect of the conditions precedent in Section 4.02(b)immediately preceding clause (i) for the fiscal years ended 2015, 4.02(d), 4.02(e) 2016 and 4.02(f). Without limiting 2017 and the generality unaudited consolidated financial statements of the provisions Borrower in respect of Section 9.04the immediately preceding clause (ii) for the fiscal quarters ending March 31, for 2018, June 30, 2018 and September 30, 2018. For purposes of determining compliance with the conditions specified in this Section 4.02Sections 3.01 and 3.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless such document has been posted to the Lenders and the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans and of the Issuing Bank to make LC Credit Extensions hereunder shall not become effective unless, on the Closing Date is subject solely or prior to the satisfaction or waiver accordance with Section 11.01 April 15, 2008, each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Effective Date OMX Transaction Agreement shall have occurred.
(b) The Acquisition shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement and the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted by the Company, in each case, modified in any respect that is materially adverse to the Lenders or without the consent of the Arrangers (which consent shall not be unreasonably withheld). The conditions to the completion of the OMX Acquisition set forth in the OMX Transaction Agreement shall have been satisfied in all material respects in accordance with the OMX Transaction Agreement without any waiver by the Arrangers’ prior written consentBorrower that is materially adverse to the Lenders unless the Arrangers shall have consented to such waiver, which consent shall not be unreasonably withheld, conditioned or delayed and the OMX Acquisition shall be consummated substantially concurrently with the initial borrowings hereunder.
(it being understood and agreed that (ib) any decrease in The Administrative Agent shall have received confirmation that, pursuant to the aggregate cash and stock consideration set forth in OMX Acquisition, substantially concurrently with the Acquisition Agreement (such aggregate considerationmaking of the initial Loans hereunder, the “Acquisition Consideration”) in excess Borrower will own OMX Shares which represent more than 66 2/3% of 10% shall be deemed materially adverse to the Lenders and the Arrangers, OMX Shares (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangersfully diluted basis); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].The Administrative Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated a date on or prior to the Closing Date and each in form and substance satisfactory to the Administrative Agent and the Arrangers:
(i) executed counterparts of the Collateral Agreement from the Borrower and each Subsidiary Loan Party together with (x) Uniform Commercial Code financing statements for each Loan Party in appropriate form for filing with the Secretary of State of each applicable jurisdiction, (y) stock certificates and stock powers in favor of the Administrative Agent with respect to all certificated Equity Interests pledged thereunder to the extent required by the Collateral Agreement; provided that, to the extent any Collateral (other than the pledge and perfection of the security interests in the capital stock of wholly-owned domestic Subsidiaries held by the Loan Parties (to the extent required by the Collateral Agreement) and other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the Closing Date after the Borrower has used commercially reasonable efforts to do so, the delivery of such Collateral shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 5.13(d);
(ii) lien searches with respect to each Loan Party in such jurisdictions as may be reasonably requested by the Administrative Agent;
(iii) a promissory note executed by the Borrower in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) a certificate of good standing for each Loan Party from its jurisdiction of organization;
(vi) a certificate signed by the Chief Financial Officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries (on a consolidated basis) after giving effect to the OMX Acquisition and the incurrence of all Indebtedness related thereto; and
(vii) a favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, and local counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, in the form attached as Exhibit D.
(d) The Acquisition Agreement Representations representations and warranties made by the Specified Representations Loan Parties in Section 3.01(c), Section 3.02(b), Section 3.08, Section 3.16 and Section 3.17 as they relate to the Loan Parties at such time shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date)respects.
(e) No Event All accrued fees and expenses of Default the Administrative Agent and the Lead Arrangers (including the fees and expenses of counsel for the Administrative Agent and the Lead Arrangers and local and special counsel for the Administrative Agent and the Lead Arrangers) shall have occurred or be continuing been paid. The Borrower shall have paid all items then due and payable under Section 8.01(a) or 8.01(f) (solely in respect of the Company)Fee Letter.
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice Borrowing Request in accordance with the requirements of Section 2.03 hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make a Loan Loans on the Closing Date is are subject solely to the satisfaction or waiver accordance with Section 11.01 each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The the Effective Date shall have occurredoccurred or shall occur simultaneously with the Closing Date.
(b) The Acquisition the Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, U.S. counsel to the Borrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement Investment Agreements, and the Acquisition Agreement Investment Agreements shall not have been amended or modifiedmodified by the Company, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”Subscription Agreement) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided , and (ii) (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Arrangers will Investment Consideration, together with any other increases since the date of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case shall be deemed not to have consented be materially adverse to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].the Lenders);
(d) The Acquisition since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of Canopy set forth therein;
(f) the Administrative Agent shall have received a certificate attesting to the Solvency of the Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the Closing Date and executed by a Financial Officer of the Company;
(g) the Specified Representations and Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already or if qualified by materialitymateriality or Material Adverse Effect, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualificationrespects) as of such earlier date).;
(eh) No Event of Default the Administrative Agent and the Arrangers shall have occurred or be continuing under Section 8.01(areceived:
(i) or 8.01(fwith respect to the Company and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income (solely in respect loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the Company).required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(fii) Except as set forth in the Disclosure Schedules with respect to the Acquisition Agreement as in effect on July 25Target and its Subsidiaries, 2021(i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the date last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.required financial statements on Form 40-F and Form 6-K by the Target will satisfy the foregoing requirements;
(gi) The the Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice Borrowing Request in accordance with the requirements hereof.Section 2.03; and
(ij) The Administrative Agent, the Lenders and the Arrangers Company shall have received paid, by wire transfer of immediately available funds, all fees reasonable and expenses documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable on or prior to as previously agreed in the Closing Date which are required to be paid pursuant to or Commitment Letter and Fee Letter, in connection with this Agreementthe case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date in order to comply with applicable law, including the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to the Closing Date, shall have received a Beneficial Ownership Certification in relation to the Company.
(k) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make a Loan on the Closing Date is subject solely to the satisfaction (or waiver in accordance with Section 11.01 10.2) of the following conditions precedent:
(a) The Effective Date shall have occurred.
(b) The Acquisition shall have been consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement and the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers); provided that the Arrangers will be deemed to have consented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) [Reserved].
(d) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Company).
(f) Except as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, 2021, since the date of the Acquisition Agreement, there shall not have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed duly executed Loan Notice in accordance complying with the requirements hereofterms of Section 2.5.
(ic) The Administrative AgentReasonable evidence that all fees then due to the Arrangers, the Lenders Lenders, the Administrative Agent and the Arrangers shall have received all fees and expenses due and payable their Affiliates required to be paid on or prior to the Closing Date which are required pursuant to paragraphs (a), (b) and (c) of Section 2.11 and the Fee Letter shall have been or will be paid pursuant to on or in connection with this Agreement, to the extent invoiced at least three Business Days prior to before the Closing Date, including reimbursement or payment which amounts, at the Borrower’s request, may be offset against the proceeds of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunderLoans.
(jd) At least three (3) Business Days prior to the Closing Date, the Company The Scheme Effective Date shall have provided to occurred (in the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to case of the Closing Date Acquisition occurring by way of a Scheme) or the Offer shall have become or been declared unconditional in order to comply with applicable law, including all respects (in the Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by such Lender not less than ten (10) Business Days prior to case of the Closing Date, shall have received a Beneficial Ownership Certification in relation to the CompanyDate Acquisition occurring by way of an Offer).
(ke) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President or a Vice President Responsible Officer of the CompanyBorrower, substantially in the form of Exhibit C, confirming that:
(i) in the case of a Scheme, the Scheme Effective Date has occurred; or
(ii) in the case of an Offer, the Offer has become or a Financial Officerbeen declared unconditional in all respects.
(f) At the time of and immediately after giving effect to such Loan, certifying as no Major Default shall have occurred and be continuing or would result therefrom or from the proposed borrowing of Loans.
(g) It is not unlawful in any applicable jurisdiction for such Lender to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender fund that Loan; provided that such ▇▇▇▇▇▇ has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless notified the Administrative Agent shall have received notice promptly upon becoming aware of such unlawfulness; provided further that such unlawfulness alone will not excuse any other Lender from such Lender prior to participating in the proposed Closing Date specifying its objection theretorelevant Loan and will not in any way affect the obligations of any other Lender.
Appears in 1 contract
Sources: Bridge Term Loan Credit and Guaranty Agreement (DoorDash, Inc.)