Financial Closing Date. The obligation of each Lender to make its Commitments available to the Borrower and make Loans on the Financial Closing Date hereunder is subject to the receipt by the Facility Agent of each of the agreements and other documents, and the satisfaction of the conditions precedent set forth below, each of which shall be (x) in form and substance reasonably satisfactory to the Facility Agent, (y) if applicable, in full force and effect and (z) in the case of any certification, true and correct (unless, in each case, waived by each Lender): (a) (i) the Effective Date shall have occurred (or shall occur on the Financial Closing Date) and (ii) delivery of each of the Financing Documents duly executed and delivered by the parties thereto; (b) the following documents, each certified as indicated below: (i) a copy of a certificate as to the existence/authorization of the Borrower from the Secretary of State of the Borrower’s state of organization, dated as of a recent date; and (ii) a certificate from the Borrower executed by an Authorized Officer certifying: (A) that attached to such certificate is a true and complete copy of the Organizational Documents of the Borrower, as amended and in effect on the date of such certificate; and (B) that attached to such certificate is a true and complete copy of resolutions duly adopted by the authorized governing body of the Borrower, as well as copies of all shareholder resolutions of the Borrower authorizing the execution, delivery and performance of the Transaction Documents and all other documents, instruments and certificates delivered in connection with the Merger Agreement and that such resolutions have not been modified, rescinded or amended and are in full force and effect; (c) a certificate of an Authorized Officer of the Borrower attaching: (i) copies of all material shareholder approvals and Regulatory Approvals required in respect of (x) the Merger (to the extent required under the Merger Agreement) and (y) the borrowing of the Facilities and (ii) to the extent required to be delivered under the Merger Agreement, certifying that the Borrower has all requisite shareholder approvals and Regulatory Approvals to continue to carry on its business operations, but with respect to this clause (ii), only to the extent that the lack of any such shareholder or Regulatory Approval, individually or in the aggregate, may reasonably be expected to result in an Initial Material Adverse Effect; (d) delivery of executed opinions from (x) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower, substantially in the form of Exhibit D-1 and (y) ▇▇▇▇▇▇▇ Coie LLP, Washington State corporate counsel to the Borrower, substantially in the form of Exhibit D-2, with such amendments reasonably satisfactory to the Facility Agent; (e) payment of, or a written instruction executed by an Authorized Officer of the Borrower directing the Facility Agent to pay from the first utilization of the Facilities all fees, costs and expenses due and payable by the Borrower under the Financing Documents, the Fee Letters and any other fees and expenses as the Borrower shall have agreed or shall otherwise be required to pay to any Lender, Joint Mandated Lead Arranger, Agent or Issuing Bank in connection herewith on or prior to the first utilization of the Facilities, including, without limitation, Attorney Costs of the Agents and the Joint Mandated Lead Arrangers, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Financing Documents and the transactions contemplated hereby and thereby; (f) an updated Business Plan and a budget (which shall include updated projections and a projected Capital Expenditure schedule) for the period from the Effective Date through the end of the current fiscal year and certified as provided in Section 6.01(c) and (d); (g) evidence that the Borrower has received ratings on the Facilities from S&P and ▇▇▇▇▇’▇; (h) evidence that the Shareholder Funding has been funded in full in cash; (i) certificates of insurance evidencing that all insurance set forth in Schedule 6.09 hereto has been obtained and is in effect together with a report of ▇▇▇▇▇ Private Equity and M&A Services Group, dated as of a recent date, in form and substance reasonably satisfactory to the Facility Agent; (j) certification from an Authorized Officer of the Borrower that the Merger has been or will be simultaneously completed in accordance with the Merger Agreement without amendment, modification or waiver of any material provision thereof in a manner materially adverse to the Lenders in any material respect without the prior consent of the Facility Agent (acting on the instructions of the Majority Lenders) (which consent shall not be unreasonably withheld or delayed); (k) documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, shall have been received by the Facility Agent and the Lenders and shall include, without limitation, evidence consisting of the following information: (i) the Borrower’s full legal name, (ii) the Borrower’s address and mailing address, (iii) the Borrower’s W-9 forms including its tax identification number, (iv) the Borrower’s articles of incorporation, (v) a list of directors of the Borrower or list of such persons controlling the Borrower and (vi) an executed resolution or other such documentation stating who is authorized to open an account for the Borrower, in form and substance reasonably satisfactory to the Facility Agent, and such other similar information relating to the Borrower or the Operating Company Group as may reasonably be requested by the Facility Agent; (l) delivery of (i) the consolidated audited statements of income, stockholder’s equity and cash flows of the Borrower and its consolidated Subsidiaries for the most recent fiscal year of the Borrower ending at least ninety (90) days prior to the Financial Closing Date; and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each fiscal quarter and portion of the fiscal year ended after the delivery of the financial statements delivered pursuant to the foregoing subclause (i) and at least forty-five (45) days prior to the Financial Closing Date, which financial statements shall be prepared in accordance with GAAP; (m) a certificate from the CFO substantially in the form of Exhibit E, attesting to (i) the Solvency (as evidenced by the updated Financial Model referred to in Section 4.02(o)) of the Borrower after giving effect to the transactions contemplated by the Transaction Documents, (ii) the Operating Company FFO Coverage Ratio being at least 1.80 to 1.00, calculated on the basis of the financial projections delivered pursuant to Section 4.02(o) and after giving effect to the transactions contemplated by the Transaction Documents, for the period of twelve (12) months after the Financial Closing Date, (iii) the Operating Company FFO Leverage Ratio is at least 13.0%, for the period of 12 months occurring after the Financial Closing Date, calculated on the basis of the financial projections delivered pursuant to Section 4.02(o) after giving effect to the transactions contemplated by the Financing Documents, (iv) no payment default by the Borrower in respect of principal, interest or other amounts owing in respect of Indebtedness other than (x) Indebtedness being repaid with the proceeds of Loans made on the Financial Closing Date and (y) if such payment default is in respect of any Indebtedness having an aggregate principal amount of less than $50,000,000 (1) such failure to pay is caused by an error or omission of an administrative or operational nature; (2) funds were available to such party to enable it to make the relevant payment when due and there were no restrictions or prohibitions on the use of such funds to make such payments at such time; and (3) such party confirms in writing to the Facility Agent that such payment will be made within one (1) Business Day; (n) evidence that the Borrower shall have taken all necessary actions such that, after giving effect to the transactions contemplated hereby, all existing Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted by Section 7.03) shall have been repaid and any Liens associated therewith shall have been released (other than Liens permitted by Section 7.01) and the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than Indebtedness permitted by Section 7.03; and (o) (i) a certified copy of the updated audited Financial Model showing financial projections up to the Final Maturity Date, reflecting the Borrower’s ability to pay debt service up to the Final Maturity Date, accompanied by a certificate of the CFO certifying that such financial projections were prepared in good faith based upon reasonable assumptions, together with a reasonably detailed summary of the material assumptions with respect thereto (but no representation shall be made as to the actual attainability of such projections) and (ii) a certified copy of a sources and uses of funds statement relating to the Merger, which shall be reasonably consistent with the expected sources and uses as of the Signing Date (subject to adjustment for Transaction Costs).
Appears in 2 contracts
Sources: Credit Agreement (Puget Energy Inc /Wa), Credit Agreement (Puget Energy Inc /Wa)
Financial Closing Date. The obligation of each Lender to make its Commitments available to the Borrower and make Loans on the Financial Closing Date hereunder is subject to the receipt by the Facility Agent of each of the agreements and other documents, and the satisfaction of the conditions precedent set forth below, in each case on or prior to the Termination Date, each of which shall be (x) in form and substance reasonably satisfactory to the Facility Agent, (y) if applicable, in full force and effect and (z) in the case of any certification, true and correct (unless, in each case, waived by each Lender):
(a) (i) the Effective Date shall have occurred (or shall occur on the Financial Closing Date) and (ii) delivery of each of the Financing Documents (including each Interest Hedging Agreement required pursuant to Section 6.11) duly executed and delivered by the parties theretothereto (it being understood and agreed that if on the Financial Closing Date none of the Shareholder Funding shall be made as loans or indebtedness to the Parent, the execution and delivery of the Parent Guarantee or the Shareholder Loan Subordination Agreement shall not be required and shall not be a condition to the occurrence of the Financial Closing Date);
(b) a copy of the articles of incorporation or certificate of formation (or such other constitutive documents as the case may be) of the Company, together with any amendments thereto, certified by the Secretary of State of the Company’s state of organization dated as of a recent date;
(c) the following documents, each certified as indicated below:
(i) a copy of a certificate as to the existence/authorization of the Borrower Company from the Secretary of State of the BorrowerCompany’s state of organization, organization dated as of a recent date; and
(ii) (x) a certificate from the Borrower Company, executed by an Authorized Officer certifying:
(A) that attached to such certificate is a true and complete copy of the Organizational Documents of the BorrowerCompany, as amended and in effect on the date of such certificate; and,
(B) that attached to such certificate is a true and complete copy of resolutions duly adopted by the authorized governing body of the BorrowerCompany, as well as copies of all shareholder resolutions of the Borrower authorizing the execution, delivery and performance of the Transaction Documents Merger Agreement and all other documents, instruments and certificates delivered in connection with the Merger Agreement and that such resolutions have not been modified, rescinded or amended and are in full force and effect;
, and (cC) that attached to such certificate is a certificate true and complete copy of an Authorized Officer resolutions duly adopted by the authorized governing body of the Borrower attaching: (i) copies of all material shareholder approvals Company, authorizing the execution, delivery and Regulatory Approvals required in respect of (x) the Merger (to the extent required under the Merger Agreement) and (y) the borrowing performance of the Facilities Assumption Agreement and (ii) to the extent required to be delivered under the Merger Agreementthat such resolutions have not been modified, certifying that the Borrower has all requisite shareholder approvals rescinded or amended and Regulatory Approvals to continue to carry on its business operations, but with respect to this clause (ii), only to the extent that the lack of any such shareholder or Regulatory Approval, individually or in the aggregate, may reasonably be expected to result in an Initial Material Adverse Effect;
(d) delivery of executed opinions from (x) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower, substantially in the form of Exhibit D-1 and (y) ▇▇▇▇▇▇▇ Coie LLP, Washington State corporate counsel to the Borrower, substantially in the form of Exhibit D-2, with such amendments reasonably satisfactory to the Facility Agent;
(e) payment of, or a written instruction executed by an Authorized Officer of the Borrower directing the Facility Agent to pay from the first utilization of the Facilities all fees, costs and expenses due and payable by the Borrower under the Financing Documents, the Fee Letters and any other fees and expenses as the Borrower shall have agreed or shall otherwise be required to pay to any Lender, Joint Mandated Lead Arranger, Agent or Issuing Bank in connection herewith on or prior to the first utilization of the Facilities, including, without limitation, Attorney Costs of the Agents and the Joint Mandated Lead Arrangers, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other Financing Documents and the transactions contemplated hereby and thereby;
(f) an updated Business Plan and a budget (which shall include updated projections and a projected Capital Expenditure schedule) for the period from the Effective Date through the end of the current fiscal year and certified as provided in Section 6.01(c) and (d);
(g) evidence that the Borrower has received ratings on the Facilities from S&P and ▇▇▇▇▇’▇;
(h) evidence that the Shareholder Funding has been funded are in full in cash;
(i) certificates of insurance evidencing that all insurance set forth in Schedule 6.09 hereto has been obtained force and is in effect together with a report of ▇▇▇▇▇ Private Equity and M&A Services Groupeffect, dated as of a recent date, in form and substance reasonably satisfactory to the Facility Agent;
(j) certification from an Authorized Officer of the Borrower that the Merger has been or will be simultaneously completed in accordance with the Merger Agreement without amendment, modification or waiver of any material provision thereof in a manner materially adverse to the Lenders in any material respect without the prior consent of the Facility Agent (acting on the instructions of the Majority Lenders) (which consent shall not be unreasonably withheld or delayed);
(k) documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, shall have been received by the Facility Agent and the Lenders and shall include, without limitation, evidence consisting of the following information: (i) the Borrower’s full legal name, (ii) the Borrower’s address and mailing address, (iii) the Borrower’s W-9 forms including its tax identification number, (iv) the Borrower’s articles of incorporation, (v) a list of directors of the Borrower or list of such persons controlling the Borrower and (vi) an executed resolution or other such documentation stating who is authorized to open an account for the Borrower, in form and substance reasonably satisfactory to the Facility Agent, and such other similar information relating to the Borrower or the Operating Company Group as may reasonably be requested by the Facility Agent;
(l) delivery of (i) the consolidated audited statements of income, stockholder’s equity and cash flows of the Borrower and its consolidated Subsidiaries for the most recent fiscal year of the Borrower ending at least ninety (90) days prior to the Financial Closing Date; and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its consolidated Subsidiaries for each fiscal quarter and portion of the fiscal year ended after the delivery of the financial statements delivered pursuant to the foregoing subclause (i) and at least forty-five (45) days prior to the Financial Closing Date, which financial statements shall be prepared in accordance with GAAP;
(m) a certificate from the CFO substantially in the form of Exhibit E, attesting to (i) the Solvency (as evidenced by the updated Financial Model referred to in Section 4.02(o)) of the Borrower after giving effect to the transactions contemplated by the Transaction Documents, (ii) the Operating Company FFO Coverage Ratio being at least 1.80 to 1.00, calculated on the basis of the financial projections delivered pursuant to Section 4.02(o) and after giving effect to the transactions contemplated by the Transaction Documents, for the period of twelve (12) months after the Financial Closing Date, (iii) the Operating Company FFO Leverage Ratio is at least 13.0%, for the period of 12 months occurring after the Financial Closing Date, calculated on the basis of the financial projections delivered pursuant to Section 4.02(o) after giving effect to the transactions contemplated by the Financing Documents, (iv) no payment default by the Borrower in respect of principal, interest or other amounts owing in respect of Indebtedness other than (x) Indebtedness being repaid with the proceeds of Loans made on the Financial Closing Date and (y) if such payment default is in respect of any Indebtedness having an aggregate principal amount of less than $50,000,000 (1) such failure to pay is caused by an error or omission of an administrative or operational nature; (2) funds were available to such party to enable it to make the relevant payment when due and there were no restrictions or prohibitions on the use of such funds to make such payments at such time; and (3) such party confirms in writing to the Facility Agent that such payment will be made within one (1) Business Day;
(n) evidence that the Borrower shall have taken all necessary actions such that, after giving effect to the transactions contemplated hereby, all existing Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness permitted by Section 7.03) shall have been repaid and any Liens associated therewith shall have been released (other than Liens permitted by Section 7.01) and the Borrower and its Subsidiaries shall have outstanding no Indebtedness other than Indebtedness permitted by Section 7.03; and
(o) (i) a certified copy of the updated audited Financial Model showing financial projections up to the Final Maturity Date, reflecting the Borrower’s ability to pay debt service up to the Final Maturity Date, accompanied by a certificate of the CFO certifying that such financial projections were prepared in good faith based upon reasonable assumptions, together with a reasonably detailed summary of the material assumptions with respect thereto (but no representation shall be made as to the actual attainability of such projections) and (ii) a certified copy of a sources and uses of funds statement relating to the Merger, which shall be reasonably consistent with the expected sources and uses as of the Signing Date (subject to adjustment for Transaction Costs).
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