Conditions Precedent to Closing Date. The obligation of each Lender to make an Initial Loan on the Closing Date shall be subject to the following conditions precedent: (a) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for the three most recent fiscal years ended at least 90 days prior to the Closing Date (the Administrative Agent hereby acknowledges receipt of the audited financial statements of the Borrower for the 2008, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada); (b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement); (c) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof; (d) Since September 30, 2010, there having been no Target Material Adverse Effect; (e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects; (f) The Specified Representations shall be true and correct as of the Closing Date; (g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Date; (i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect; (i) Each Lender shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; and (j) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, 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 2 contracts
Sources: Amendment Agreement (Cliffs Natural Resources Inc.), Term Loan Agreement (Cliffs Natural Resources Inc.)
Conditions Precedent to Closing Date. The Each Lender’s obligation of each Lender to make an Initial a Term Loan on the Closing Date shall be is subject to the following conditions precedent:condition precedent that Administrative Agent and each Lender shall have received (or shall have consented to waive), in form and substance reasonably satisfactory to Administrative Agent):
(a) The Administrative Agent shall have received (i) audited consolidated balance sheets the Term Notes, an IP Security Agreement (to the extent any Loan Party has acquired Intellectual Property since the Effective Date required to be included thereon in accordance with the terms of this Agreement), to the extent required hereunder or under the Pledge Agreement, all other Loan Documents, each duly executed by each Loan Party required to be party thereto, as applicable and related statements (ii) an amendment to this Agreement substantially in the form attached hereto as Exhibit F to set forth, among other terms, the Term Loan Commitments of incomethe Lenders on Schedule 1.1, stockholders’ equity the Interest Rate in Section 2.3(a) hereof, the amortization schedule set forth in Section 2.3(b) hereof, the Stated Maturity Date and cash flows of the covenant levels for the Total Net Debt to Consolidated EBITDA Ratio and Consolidated Fixed Charge Coverage Ratio set forth in Section 7.15, each as reasonably determined by Administrative Agent in accordance with the terms hereof;
(b) updated Schedule 5.2 solely to add the Closing Date Acquisition Intellectual Property as owned Intellectual Property, which shall be in form, scope and substance satisfactory to Administrative Agent;
(c) a completed Perfection Certificate for each of the Borrower Loan Parties (and assuming the Target for Closing Date Acquisition has been consummated in accordance with the three most recent fiscal years ended at least 90 terms of the Closing Date Acquisition Documents);
(d) certified copies, dated as of date no earlier than thirty (30) days prior to the Closing Date (the Administrative Agent hereby acknowledges receipt Date, of the audited financial statements of the Borrower for the 2008financing statement searches, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada);
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of request, accompanied by written evidence (including any UCC termination statements) that the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial Liens indicated in any such financing statements either constitute Permitted Liens or have been delivered pursuant to clause (a) aboveor, prepared after giving effect to in connection with the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) Closing Date, will be terminated or at the beginning of such period (in the case of the income statement);
(c) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effectreleased;
(e) The Arrangement Agreement Representations shall be true certification that the Borrower is Solvent and correct Parent and its Subsidiaries, when taken as of the Closing Date without regard to any materiality or material adverse effect qualification contained in thema whole, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;are Solvent.
(f) The Specified Representations shall delivery of an intercompany note evidencing Indebtedness among the Loan Parties, in form and substance reasonably satisfactory to Administrative Agent;
(g) a payoff letter executed by each applicable financing source requested by Administrative Agent and required to be true repaid on the Closing Date pursuant to the terms of this Agreement;
(h) a subordination agreement with each applicable financing source requested by Administrative Agent and correct required to be subordinated to the Obligations pursuant to the terms of this Agreement;
(i) evidence reasonably satisfactory to Administrative Agent that the insurance policies required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing lender’s loss payable and/or additional insured clauses or endorsements in favor of Administrative Agent, for the ratable benefit of the Lenders;
(j) the Organization Documents (or certificates of no change) and good standing certificates of each Loan Party certified by the Secretary of State (or equivalent agency) of such Loan Party’s jurisdiction of organization or formation, each as of a date no earlier than thirty (30) days prior to the Closing Date;
(gk) No Default or Event a copy of Default arising under resolutions of the governing body for each Loan Party evidencing approval of the Term Loans and other transactions evidenced by the Loan Documents;
(l) duly executed original officer’s certificates for each Loan Party certifying as to (i) the incumbency of each Responsible Officer executing each Loan Document and (ii) the documents delivered pursuant to Section 7.01(a3.2(j) and 3.2(k), Section 7.01(jin a form reasonably acceptable to Administrative Agent;
(m) or Section 7.01(k) shall have occurred and be continuing duly executed legal opinions of counsel to each Loan Party dated as of the Closing DateDate in form and substance reasonably satisfactory to Administrative Agent;
(n) delivery of a duly authorized original officer’s certificate, executed by each Loan Party, (i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification certifying to the Arrangement Agreement that is materially adverse to the Lenders without the consent satisfaction of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(33.2(e) of the Arrangement Agreementand Section 3.2(r), (Bii) the delivery of items certifying to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 Section 3.3(b), (c) and 6.02 (d) hereof and (iii) certifying and attaching true, correct and complete copies of the Arrangement executed Closing Date Acquisition Agreement (other than with respect to the delivery of certificates) would be satisfied as in effect on the Effective Date, together with all amendments, supplements or other modifications thereto) and each other executed Closing Date if each reference to “Acquisition Document (as in effect on the Effective Time” Date or “in the form in effect on the Effective Date” therein were a reference to the Closing Date and , together with all amendments, supplements or other modifications thereto) (ii) the Escrow Arrangement each such document shall be in effectform, scope and substance satisfactory to Administrative Agent);
(io) Each Lender receipt of confirmation by Administrative Agent that all costs, fees and expenses due to any affiliate of Administrative Agent under the Engagement Letter shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; and
(j) All fees required to be been paid (including fees payable on or prior to the Closing Date or substantially contemporaneously with the funding of the Term Loan;
(p) payment to Administrative Agent, for the account of Administrative Agent and the Lenders, of L▇▇▇▇▇▇’ Expenses as specified in Section 2.4 hereof;
(q) delivery of (i) all certificates (if any) evidencing any certified Equity Interests pledged to Administrative Agent pursuant to the Fee LettersPledge Agreement, together with duly executed in blank, undated transfer powers attached thereto, and, for Pledged Uncertificated Stock (as defined in the Pledge Agreement), entry into an agreement to grant the Administrative Agent a perfected, first-priority Lien by “control” as defined in Section 8-106 of the UCC; and (ii) to the extent required by the BorrowerPledge Agreement, all Pledged Debt, together with duly executed in blank, undated allonges attached thereto;
(r) evidence that the Closing Date Acquisition shall be consummated, and all expenses required to such Closing Date Acquisition shall only be reimbursed by consummated, substantially contemporaneously with the Borrowerfunding of the Term Loan on the Closing Date in accordance with the terms of the Closing Date Acquisition Agreement (as in effect on the Effective Date or as otherwise amended, to supplemented or otherwise modified with the written consent of the Administrative Agent, the Lead Arrangers or any Lender () and each other than a Defaulting Lender) prior to the Closing Date Acquisition Document (as in effect on the Effective Date or in form in effect as of the Effective Date or as otherwise amended, supplemented or otherwise modified with the written consent of the Administrative Agent); and
(s) evidence that the Common Stock Offering shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, 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 theretoconsummated.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation Notwithstanding any other provision of each this Agreement and without affecting in any manner the rights of Lender to make an Initial Loan on hereunder, the Closing Date shall be subject to not occur until and unless each and every one of the following conditions precedenthas been satisfied or waived, in Lender’s sole discretion:
(a) The Administrative Agent Borrower shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for the three most recent fiscal years ended at least 90 days prior delivered to the Closing Date (the Administrative Agent hereby acknowledges receipt of the audited financial statements of the Borrower for the 2008, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada);
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement);
(c) The Administrative Agent shall have received the notice of borrowing Lender all documents required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;
(e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations Lender to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of delivered on or before the Closing Date;
(gb) Lender shall have received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt of all necessary governmental approvals, required certifications, including, but not limited to, compliance with all laws, payment of all taxes and satisfaction of all insurance requirements, and such legal opinions as may reasonably be required by Lender;
(c) No Material Adverse Effect shall have occurred or shall exist;
(d) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Date;
(i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect;
(i) Each Lender shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Actcontinuing; and
(je) All fees required Lender has received an executed copy of the Addendum to Macadamia Nut Purchase Agreement dated July 8, 2008 between Mauna Loa Macadamia Nut Corporation and Borrower (the “Addendum to Nut Purchase Agreement”) with terms and conditions to be paid (including fees payable on or prior approved by Lender. The Addendum to Nut Purchase Agreement shall terminate no sooner than June 30, 2009, unless terminated earlier as provided in the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative AgentMacadamia Nut Purchase Agreement. In addition, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior Addendum to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, each Lender that has signed this Nut Purchase Agreement shall be deemed include a requirement for Mauna Loa 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 purchase a minimum of 9 million wet in shell pounds of macadamia nuts from Borrower up to a Lender unless the Administrative Agent maximum of 12 million wet in shell pounds. The minimum price shall have received notice from such Lender prior be $0.60 per pound, adjusted to the proposed Closing Date specifying its objection thereto20% moisture and 30% saleable kernel recovery to dry shell.
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation occurrence of each Lender the Closing Date and the obligations of the Lenders to make an Initial the Loan under the Certain Funds Draw on the Closing Date shall be are, in each case, subject to each of the following conditions precedentbeing satisfied:
(a) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each a certificate from a Responsible Officer of the Borrower certifying that (a) the conditions to the Combination set forth in the Business Combination Agreement (without giving effect to any modifications, consents, amendments or waivers thereto by Mylan that in each case are materially adverse to the interests of the Lenders or the Arrangers, in their capacities as such, unless the Arrangers shall have provided their written consent thereto (such consent not to be unreasonably withheld, conditioned or delayed)), in each case, other than such conditions that by their nature are to be satisfied upon the closing of such transaction, have been satisfied or waived or are expected to be satisfied and the Target for the three most recent fiscal years ended at least 90 days prior to waived on the Closing Date or one Business Day thereafter and (b) the Administrative Agent hereby acknowledges receipt of Distribution is expected to be, the audited financial statements of the Borrower for the 2008, 2009 and 2010 fiscal years Combination is expected to be and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (Contribution has been or is expected to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before be consummated on the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada)or one Business Day thereafter;
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as of and for the twelve-month period ending a whole) on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) above, prepared Closing Date after giving effect to the Transactions as if Transactions, the Transactions had occurred as of such date Contribution, the Borrower Cash Distribution and the Distribution (but prior to the Combination) in or substantially in the case of such balance sheet) or at the beginning of such period (in the case form attached as Exhibit H hereto, from a Financial Officer of the income statement)Borrower;
(c) The Administrative Agent shall have received Notes executed by the notice Borrower in favor of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;
(e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of the Closing Date;
(g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Date;
(i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect;
(i) Each Lender shall have received, requesting Notes at least five three Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; and
(j) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, 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 Precedent to Closing Date. The obligation of each Lender to make an Initial a Loan on the Closing Date shall be subject to the following conditions precedent:
(a) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for the three most recent fiscal years ended at least 90 days prior to the Closing Date (the Administrative Agent hereby acknowledges receipt of the audited financial statements of the Borrower for the 2008, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada);
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement);
(c) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;
(e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of the Closing Date;
(g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Date;
(i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect;
(i) Each Lender shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; and
(j) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, 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 (Cliffs Natural Resources Inc.)
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make an Initial Loan on the Closing Date Loans shall be subject to all of the following conditions precedentprecedent having been satisfied (or waived in accordance with Section 10.01) on or before the Commitment Termination Date:
(a) The Administrative Agent Effective Date shall have occurred.
(b) (i) The Exelis Acquisition shall have been, or substantially concurrently with the funding under the Facility shall be, consummated in accordance with the terms of the Acquisition Agreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified, and no consent by the Borrower or any of its Subsidiaries shall have been provided thereunder, in each case which is materially adverse to the interests of the Lenders without MSSF’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that, (x) any decrease in the cash portion of the purchase consideration for the Exelis Acquisition exceeding 10% in the aggregate shall be deemed materially adverse to the Lenders and any decrease of the cash portion of such purchase consideration equal to or less than 10% in the aggregate shall be deemed not materially adverse to the Lenders and (y) any increase in the cash portion of the purchase consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders.
(i) Except as set forth in (x) the Company Reports (as defined in the Acquisition Agreement as of February 5, 2015) filed with the Securities and Exchange Commission that are publicly available as of the date of the Acquisition Agreement and were filed after December 31, 2013 and prior to February 5, 2015 (excluding, in each case, any disclosures set forth in the risk factors section or in the “Cautionary Statement Concerning Forward-Looking Statements” section of any Company Reports, any other disclosure that constitutes risk factors or that is cautionary, predictive or forward-looking in nature and any amendment to any such Company Report filed by or on behalf of the Borrower after the date hereof); (y) the Form 10 filed by the Spun Entity (as defined in the Acquisition Agreement as of February 5, 2015) (excluding any disclosures set forth in the risk factors section or in the “Special Note About Forward-Looking Statements” section of such Form 10 and any amendment thereto, any other disclosure that constitutes risk factors or that is cautionary, predictive or forward-looking in nature and any amendment to any such Form 10 filed after the date hereof); or (z) the corresponding sections or subsections of the Company Disclosure Letter (as defined in the Acquisition Agreement as of February 5, 2015 and provided to MSSF on such date) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter (other than any information set forth in Section 5.13 of the Company Disclosure Letter) shall be deemed to apply to and qualify the terms hereof only to the extent that the relevance of such item to the terms hereof is reasonably apparent on its face), from December 31, 2013 through February 5, 2015, there shall not have been any event, change, effect, development, state of facts, condition, circumstance or occurrence (including any adverse change with respect to any event, change, effect, development, state of facts, condition, circumstance or occurrence existing on or prior to December 31, 2013) which, individually or in the aggregate, has had or would reasonably be expected to have an Acquired Business Material Adverse Effect and (ii) since February 5, 2015, there shall not have occurred any event, change, effect, development, circumstance or occurrence, individually or in the aggregate, that has had or would reasonably be expected to have an Acquired Business Material Adverse Effect.
(d) MSSF shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of each of the Borrower and the Target its Subsidiaries for the last three most recent full fiscal years ended at least 90 60 days prior to the Closing Date (the Administrative Agent hereby acknowledges receipt of the audited financial statements of the Borrower for the 2008Date, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of each of the Borrower and the Target its Subsidiaries for each subsequent fiscal quarter quarterly interim period or periods ended at least 60 40 days before prior to the Closing Date (and the corresponding period(s) of the prior fiscal year), which shall have been reviewed by the independent accountants for the Borrower as provided in Statement of Auditing Standards No. 100, and prepared in accordance with the requirements of Form 10-K and 10-Q under the Securities Act and under Regulation S-X under the Securities Act (it being agreed that understood that, with respect to the Target such financial information for each such fiscal year and its Subsidiariessubsequent interim period, such condition shall be deemed satisfied through the filing by the Borrower of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period); and (ii) to the extent as would be required by Rule 3-05 and Article 11 of Regulation S-X if the Permanent Financings were registered on Form S-1 under the Securities Act on the Closing Date, (A) audited consolidated annual balance sheets and related statements of income, comprehensive income and cash flows of the Acquired Business, as well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Acquired Business (which shall have been reviewed by the independent accountants for the Acquired Business as provided in Statement of Auditing Standards No. 100) and prepared in accordance with GAAP (it being understood that, with respect to such financial information for each such fiscal year and subsequent interim period, such condition shall be deemed satisfied through the filing by the Acquired Business of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such fiscal year or interim period) and (B) pro forma financial statements shall be in conformity with GAAP as in effect in Canada);
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as reflecting the Transactions, which meet the requirements of Regulation S-X under the Securities Act, and for the twelve-month period ending on the last day all other accounting rules and regulations of the most recently completed four-fiscal quarter period for which financial SEC promulgated thereunder applicable to registration statements have been delivered pursuant to clause (a) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement);
(c) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;on Form S-1.
(e) The Arrangement Agreement Representations shall be true All costs, fees, expenses (including legal fees and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(cexpenses) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of the Closing Date;
(g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Date;
(i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately extent invoiced at least two Business Days prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (iithe fees payable pursuant to Section 2.08(b) to the Escrow Arrangement Arrangers, the Administrative Agent or the Lenders shall have been paid on or prior to the Closing Date, in each case, to the extent required by this Agreement to be in effect;paid on or prior to the Closing Date.
(if) Each Lender To the extent reasonably requested at least ten Business Days prior to the Closing Date by any of the Administrative Agent, the Arrangers or the Lenders, the Administrative Agent shall have received, at least five three Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the Patriot PATRIOT Act; and.
(jg) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3, 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 The Administrative Agent shall have received notice from such Lender prior a customary legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel to the proposed Borrower, in form and substance reasonably acceptable to the Administrative Agent.
(h) The Administrative Agent shall have received (in each case dated as of the Closing Date specifying its objection theretoDate) (i) an officer’s certificate from the Borrower that there has been no change to the matters previously certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in Sections 4.02(b) and (i) have been satisfied as of the Closing Date, and (ii) a Solvency Certificate from the chief financial officer or other officer with equivalent duties of the Borrower.
(i) (i) There shall exist no Specified Default and (ii) each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (except Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case at the time of, and after giving effect to, the making of the Loans on the Closing Date.
(j) The Administrative Agent shall have received a Loan Notice in accordance with Section 2.02(a).
Appears in 1 contract
Conditions Precedent to Closing Date. The obligation of each Lender to make an Initial Loan This Agreement shall be effective on the date (the “Closing Date shall be subject to Date”) on which the following conditions precedentprecedent shall have been satisfied or waived:
(a) The Administrative Agent Agent’s receipt of the following, each of which shall have received be originals or facsimiles (ifollowed promptly by originals) audited consolidated balance sheets and related statements of incomeunless otherwise specified, stockholders’ equity and cash flows of each properly executed by a Responsible Officer of the Borrower and the Target for the three most recent fiscal years ended at least 90 days prior each in form and substance satisfactory to the Closing Date (the Administrative Agent hereby acknowledges receipt and each of the audited financial statements Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed copies of the definitive agreements relating to the Internal Wexpro Spin and the Spin Off (including, but not limited to, all schedules and exhibits thereto) (collectively, the “Spin Off Agreements”) in the forms previously approved by the Agents;
(iii) a copy of the Amended Revolving Credit Facility entered into and effective on even date herewith;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower for as the 2008Administrative Agent may require evidencing the identity, 2009 authority and 2010 fiscal years capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada)other Loan Documents;
(bv) The Administrative Agent shall have received a solvency certificates, in form and substance reasonably satisfactory to the Agents, from the chief financial officers of Parent and Borrower;
(vi) pro forma consolidated balance sheet and related statement of income of Borrower and its subsidiaries and a pro forma consolidated statement of income of the Borrower as of and for the twelve-year ended December 31, 2009 and three month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) aboveended March 31, 2010 prepared after giving effect to the Transactions Transactions, as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement)period;
(cvii) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;
(e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effectagreements relating to, and the representations corporate and warranties capital structure of, the Borrower and its subsidiaries, and all organizational documents of the Target Borrower and its subsidiaries, in Section 3.0(2)(c) each case as the same will exist after giving effect to the consummation of the Arrangement Agreement regarding Transactions on or prior to the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of the Closing Spin Off Date;
(gviii) No Default or Event such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is validly existing and in good standing in the jurisdiction of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) shall have occurred and be continuing as of the Closing Dateits incorporation;
(iix) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial Lender, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect;
(i) Each Lender shall have received, at least five Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot PATRIOT Act;
(x) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP to be addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit G and such other matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(xi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.02(a) and 4.02(b) have been satisfied; and
(jxiii) All fees required such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) The Internal Wexpro Spin and the Spin Off shall be consummated on the date hereof in accordance with the terms of the Spin Off Agreements, without giving effect to any waiver, consent or other modification, alteration, amendment or change thereof that is materially adverse to the Agents without the consent of the Arrangers;
(c) The Administrative Agent shall be paid reasonably satisfied with the Borrower’s available liquidity after giving effect to the Transactions, including the Borrower’s ability to fund up to $650 million of the purchase price for Subject Notes that may be accepted for payment pursuant to the Subject Notes Change of Control Offer.
(including fees d) The Administrative Agent shall have received all costs, fees, expenses and other amounts due and payable to each Agent and Lender on or prior to the Closing Date pursuant Spin Off Date, including, to the Fee Letters) by the Borrowerextent invoiced, and reimbursement or payment of all expenses (including, without limitation, Attorney Costs) required to be reimbursed or paid by the Borrower, .
(e) After giving effect to the Administrative Agentconsummation of the Spin Off, the Lead Arrangers Borrower and its Subsidiaries shall have no outstanding preferred equity or Indebtedness (excluding intercompany Indebtedness) for borrowed money, except for Indebtedness incurred pursuant to (i) the Subject Notes, (ii) the Amended Revolving Credit Facility and (iii) other existing Indebtedness and disclosed contingent liabilities, if any, as shall be permitted by the Agents (the “Existing Indebtedness”).
(f) The Borrower shall have received the Equity Contribution.
(g) After giving effect to the Transactions, there shall be no conflict with, or default under, any material agreement of Parent or the Borrower or any Lender of their respective subsidiaries (other than a Defaulting Lenderincluding any such agreements (i) prior entered into pursuant to the Closing Date Transactions and (ii) in respect of Existing Indebtedness), except for such conflicts or defaults as would not reasonably be expected to have a Material Adverse Effect or imposing materially adverse conditions upon any of the Transactions.
(h) All necessary governmental (domestic and foreign) and material third party approvals and/or consents in connection with the Transactions shall have been paidobtained and remain in effect, and all applicable waiting periods shall have expired without any action being taken by any authority having jurisdiction which restrains, prevents, or imposes materially adverse conditions upon, the consummation of the Transactions. Additionally, there shall not exist any judgment, order, injunction or other restraint prohibiting or imposing materially adverse conditions upon any of the Transactions.
(i) No litigation by any entity (private or governmental) shall be pending or threatened with respect to the extent Transactions, and which has had, or could reasonably be expected to have, a Material Adverse Effect.
(j) As of the Spin Off Date, the representations and warranties of the Borrower contained in Article V shall be true and correct in all material respects on and as of the Spin Off Date (except that invoices relating thereto have been presented such representations and warranties that specifically refer to a prior given date or period shall be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be), before and after giving effect to the Borrower prior to Transactions, as though made on and as of the Closing Spin Off Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Article 3Section 4.01, 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: Senior Unsecured Bridge Loan Agreement (Qep Resources, Inc.)
Conditions Precedent to Closing Date. The obligation of each Lender the Lenders to make an Initial Loan Loans and Advances hereunder on the Closing Date shall be is subject solely to satisfaction (or waiver) of the following conditions precedent, and upon satisfaction (or waiver) of such conditions each Lender shall make all of its required Loans and Advances hereunder on the Closing Date:
(a) The Administrative Acquisition shall have been consummated, or shall be consummated substantially concurrently with the funding of the Loans made on the Closing Date, in all material respects in accordance with the terms of the Agreement and Plan of Merger dated as of September 16, 2013 among the Borrower, Bee Acquisition Corporation, a Delaware corporation and wholly owned Subsidiary of the Borrower, and the Acquired Company (including all exhibits, schedules and annexes thereto, the “Acquisition Agreement”) and such other agreements, instruments and documents relating to the Acquisition without giving effect to any amendment, waiver, consent, modification or supplement that is materially adverse to the interests of the Lenders without the prior written consent of the Arrangers, it being understood that any increase in the purchase price shall be deemed to be materially adverse to the interests of the Lenders. The Acquisition Agreement Representations shall be true and correct, and the Specified Representations shall be true and correct in all material respects.
(b) Since December 31, 2012, there has been no change, event, occurrence or development that, individually or in the aggregate with any other changes, events, occurrences or developments, has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in, and interpreted in accordance with the governing law of, the Acquisition Agreement).
(c) The Agent shall have received received: (iA) audited within 90 days after the end of each fiscal year of the Borrower and the Acquired Company ending after September 16, 2013, the consolidated balance sheets sheet of each of the Borrower and the Acquired Company as of the end of such fiscal year and related consolidated statements of operations, cash flows and shareholders’ equity, accompanied by a report thereon of the Borrower’s or Acquired Company’s auditors, as applicable (it being acknowledged that the Agent has received such financial statements for the three fiscal years ended prior to September 16, 2013); and (B) within 45 days after the end of each fiscal quarter of the Acquired Company or the Borrower ending after September 16, 2013, an unaudited balance sheet and related statements of income, stockholders’ equity operations and cash flows of each of the Borrower and the Target Acquired Company for such fiscal quarter and for the three most recent comparable periods of the prior fiscal years ended at least 90 days year.
(d) The Borrower shall have complied with all of its obligations under, and the terms of, the Fee Letter. All fees due to the Agent, the Arrangers and the Lenders shall have been paid, and all expenses to be paid or reimbursed to the Agent and the Arrangers that have been invoiced a reasonable period of time prior to the Closing Date (shall have been paid, in each case, from the Administrative Agent hereby acknowledges receipt proceeds of the audited financial statements initial funding hereunder (provided that the accrued fees and expenses of the Borrower for the 2008, 2009 and 2010 fiscal years and the Target for the 2007, 2008 and 2009 fiscal years) and (ii) unaudited consolidated and (counsel to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and the Target for each subsequent fiscal quarter ended at least 60 days before the Closing Date (it being agreed that with respect to the Target and its Subsidiaries, such financial statements Agent shall be in conformity with GAAP as in effect in Canadapaid directly by the Borrower);
(b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the income statement);
(c) The Administrative Agent shall have received the notice of borrowing required by Section 2.03 hereof;
(d) Since September 30, 2010, there having been no Target Material Adverse Effect;.
(e) The Arrangement Agreement Representations shall be true and correct as of the Closing Date without regard to any materiality or material adverse effect qualification contained in them, except where the failure or failures of such Arrangement Agreement Representations to be so true and correct in all respects would not have a Target Material Adverse Effect, and the representations and warranties of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;
(f) The Specified Representations shall be true and correct as of the Closing Date;
(g) No Default or Event of Default arising under Section 7.01(a), Section 7.01(j) or Section 7.01(k) Borrower shall have occurred and be continuing as of the Closing Date;
(i) All conditions set forth in Article 6 of the Arrangement Agreement shall have been satisfied or waived in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification provided to the Arrangement Agreement that is materially adverse to the Lenders without the consent of the Administrative Agent and each Initial LenderAgent, such consent not to be unreasonably withheld or delayed, except for (A) the conditions set forth in Section 6.03(3) of the Arrangement Agreement, (B) the delivery of items to be delivered on the Arrangement Effective Date and (C) the satisfaction of those conditions that, by their terms, cannot be satisfied until immediately prior to the Arrangement Effective Date, but subject to the satisfaction or, where permitted, waiver of those conditions as of the Arrangement Effective Date; provided, that the conditions set forth in Sections 6.01 and 6.02 of the Arrangement Agreement (other than with respect to the delivery of certificates) would be satisfied on the Closing Date if each reference to “Effective Time” or “Effective Date” therein were a reference to the Closing Date and (ii) the Escrow Arrangement shall be in effect;
(i) Each Lender shall have received, at least five Business Days within four days prior to the Closing Date, all the documentation and other information required by regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the U.S.A. Patriot Act; and
(j) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) by the Borrower, and all expenses required to be reimbursed by the Borrower, to the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to requested by the Borrower Agent or any Lender at least seven days prior to the Closing Date. Without limiting .
(f) The Borrower shall have notified the generality Agent in writing as to the proposed Closing Date.
(g) The Agent shall have received on or before the Closing Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the provisions Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the last paragraph resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder.
(iv) A good standing certificate as of a recent date for each of the Borrower and the Acquired Company with respect to such Person’s jurisdiction of incorporation.
(v) An officer’s certificate from an executive officer of the Borrower regarding satisfaction of the conditions precedent set forth in this Section 9.033.02.
(vi) Favorable opinions of (A) ▇▇▇▇▇ ▇▇▇▇▇ LLP, New York counsel for purposes the Borrower, substantially in the form of determining compliance Exhibit D-1 hereto and (B) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, substantially in the form of Exhibit D-2 hereto.
(h) The Borrower shall have (x) terminated the commitments of the lenders and repaid or prepaid in full all amounts outstanding under the Existing Credit Agreement (and any letters of credit outstanding thereunder shall have been cash collateralized or continued as Letters of Credit under this Agreement) and (y) delivered to the Agent evidence reasonably satisfactory to the Agent that prior to or concurrently with the conditions specified Closing Date (A) all loans and other amounts then payable under the Credit Agreement dated as of November 4, 2011 among BZ Intermediate Holdings LLC, Boise Paper Holdings, L.L.C., various lenders and JPMorgan Chase Bank, N.A., as administrative agent, have been or will be paid in full, the commitments under such Credit Agreement have been or will be terminated (and any letters of credit outstanding thereunder shall have been cash collateralized or continued as Letters of Credit under this Article 3Agreement) and the administrative agent under such Credit Agreement has released, or agreed to promptly release upon receipt of funds to pay the loans and other amounts then payable thereunder, all Liens granted under or in connection with such Credit Agreement and (B) each of the 9% senior notes due 2017 issued by Boise Paper Holdings, L.L.C. and Boise Finance Company and the 8% senior notes due 2020 issued by Boise Paper Holdings, L.L.C. and Boise Co-Issuer Company have been paid, redeemed or discharged in full. By execution of this Agreement, each Lender that has signed this is a lender under the Existing Credit 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 waives the Administrative Agent shall have received requirements set forth in Section 2.05 and 2.10 of such agreement of prior notice from such Lender prior to the proposed Closing Date specifying termination of its objection theretocommitments and prepayment of advances thereunder.
Appears in 1 contract