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 obligation of each No Lender shall be required or obligated to make an Initial Loan Advance pursuant to clause (a) of Section 2.01 on the Closing Date shall be subject to and on the terms set forth herein until the first Business Day on which the following conditions precedent:precedent have been satisfied (or waived, as evidenced by an "effective date" notice to the Borrower from the Lenders), as determined by each Lender (provided that if the Closing Date does not occur on or before August 31, 2005, the Commitments of the Lenders shall terminate on such date):
(a) The Administrative Agent Agent's receipt of the following, each of which shall have received be originals or facsimiles (followed promptly by originals) (unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party (if executed by such Loan Party), each dated the date of the initial Borrowing (the "Closing Date") (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lenders (unless otherwise specified) and in sufficient copies for the Agents and the Borrower (unless otherwise specified):
(i) audited consolidated balance sheets executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, the Collateral Agent and related statements the Borrower;
(ii) to the extent requested, duly executed Notes of income, stockholders’ equity and cash flows the Borrower for the account of each Lender that has so requested, complying with the provisions of Section 2.13;
(iii) an Officer's Certificate satisfying the requirements of Section 2.13(c) of the Security Agreement, together with all attachments thereto;
(iv) executed counterparts of an Accession Agreement to be delivered to the Collateral Agent and the Intercreditor Agent pursuant to Section 2.13(d) of the Security Agreement;
(v) executed counterparts of an amendment to the Security Agreement such that the Security Agreement shall be amended immediately after giving effect to the Borrowing on the Closing Date and further amended and restated immediately after giving effect to the Borrowing and the redemption of the Senior Secured Notes on the Second Draw Date, in each case, as provided in the form attached hereto as Exhibit E (the "SIA Amendment"), sufficient in number for distribution to each Agent and the Borrower, together with:
(A) proper financing statements, duly completed for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect and protect the liens and security interests created under the Collateral Documents in favor of the Agents or the Lenders, covering the Collateral described in the Collateral Documents;
(B) results of lien searches, dated on or no earlier than 45 days before the Closing Date, for existing financing statements filed in the jurisdictions referred to in Section 3.01(a)(v)(A) that name any Loan Party as debtor, together with copies of all such financing statements; and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interests in favor of the Agents or the Lenders created under the Security Agreement and the Account Control Agreements (both before and after giving effect to the Closing Date Transactions), other than the Other Perfection Requirements, has been taken;
(vi) the Amended and Restated Mortgages (in recordable form), duly executed and delivered by each of the Loan Parties party thereto, so as to create or ensure the continued effectiveness of the Liens created thereby, all as determined by the Administrative Agent and its counsel, together with:
(A) confirmation from Chicago Title Insurance Company or such other title insurers acceptable to the Administrative Agent recording the Amended and Restated Mortgages that duly executed counterparts of such Amended and Restated Mortgages that are sufficient for recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create valid and subsisting Liens on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties have been delivered to Chicago Title Insurance Company or such other title insurer, and evidence reasonably satisfactory to the Administrative Agent that all filing and recording taxes and fees have been paid;
(B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies in form and substance, with endorsements and in amounts acceptable to the Administrative Agent, issued by Chicago Title Insurance Company or such other title insurers acceptable to the Administrative Agent, insuring the Amended and Restated Mortgages for the properties described therein to be valid and subsisting Liens on the properties described therein, free and clear of all defects (including mechanics' Liens and materialmen's Liens) and encumbrances, excepting only Permitted Liens (other than mechanic's liens and materialmen's liens to be insured against under said policies), and providing for such other affirmative insurance (including endorsements for future advances under the Financing Documents and for mechanics' and materialmen's Liens) as the Administrative Agent may deem necessary or desirable;
(C) at the Administrative Agent's option, either (i) ALTA Surveys, for which all necessary fees (where applicable) have been paid, dated no more than 60 days before the Closing Date, of the properties described in the Amended and Restated Mortgages, showing only such exceptions as are acceptable to the Administrative Agent, and each certified to the Collateral Agent and the issuer of the title insurance policies referred to above in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the State in which the property described in such survey is located and acceptable to the Administrative Agent or (ii) affidavits of the Borrower and of the relevant Loan Parties, dated as of the Closing Date, certifying to the Administrative Agent, the Collateral Agent, and the Lenders and the title insurance company recording the Amended and Restated Mortgages that there have been no changes, replacements or additions to the improvements on the properties described in the Amended and Restated Mortgages which encroach upon the property or rights of others, which violate any setback or other zoning requirements or which violate any agreements of the Borrower or such Loan Parties, and otherwise in form and substance satisfactory to the Administrative Agent;
(D) evidence that all action (including payment by Borrower of all title search expenses, title insurance premiums, recording fees, mortgage recording taxes and like taxes) that the Administrative Agent may deem necessary or desirable in order to preserve, perfect and protect the liens and security interests created under the Collateral Documents (other than the Other Perfection Requirements) securing all Obligations of the Borrower and the Target Loan Parties under the Financing Documents have been taken; and
(E) releases of the Term Mortgages not being amended and restated pursuant to the Amended and Restated Mortgages (in recordable form), duly executed, delivered and acknowledged;
(vii) certified copies of resolutions of the Board of Directors of each Loan Party (A) approving the Transactions to which each such Loan Party is or is to be a party and (B) the execution, delivery and performance of each Financing Document to which such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Financing Document to which such Loan Party is or is to be a party;
(viii) copies of a certificate of the Secretary of State of the jurisdiction of formation of each Loan Party, certifying (A) as to a true and correct copy of the certificate of incorporation or formation of such Loan Party and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the only amendments to such certificate on file in such Secretary's office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly formed and in good standing or presently subsisting under the laws of the State of its jurisdiction of formation;
(ix) copies of a certificate of the Secretary of State of each jurisdiction (other than the jurisdiction of its formation) set forth on Schedule 4.01(b) for each Loan Party stating that such Loan Party is duly qualified to do business and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, as applicable;
(x) certificates signed on behalf of each Loan Party by its Secretary or any Assistant Secretary (the statements made in which certificate shall be true on and as of the Closing Date), certifying (A) as to a true and correct copy of the Constituent Documents of such Loan Party as of the Closing Date and each amendment to its Constituent Documents, if any, from the date on which the resolutions referred to in Section 3.01(a)(vii) were adopted to the Closing Date, (B) the absence of any proceeding for the three most recent dissolution or liquidation of such Loan Party; and (C) the names and true signatures of the officers of such Loan Party authorized to sign each Financing Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder;
(xi) forecasts prepared by management of the Borrower of balance sheets, income statements and cash flow statements of the Borrower reasonably acceptable to the Administrative Agent on a consolidated basis for each fiscal years ended at least 90 days prior quarter commencing with the fiscal quarter ending March 31, 2005 through the fiscal quarter ending December 31, 2009;
(xii) legal opinions of appropriate counsel for the Loan Parties, as to such matters as any Lender may reasonably request;
(xiii) legal opinions of appropriate counsel to the Administrative Agent (including Shearman & Sterling LLP), as to such matters as the Administrative Agent may reasonably request;
(xiv) an Officer's Certificate of the Borrower, attaching copies of all Material Governmental Approvals and certifying that (A) the copies of each of the Material Governmental Approvals delivered pursuant to this Section 3.01(a)(xiv) are true, correct and complete copies of such Material Governmental Approval; (B) each Governmental Approval is in full force and effect, and is not subject to any pending appeal, intervention or similar proceeding or any unsatisfied condition that may result in modification or revocation thereof; (C) any and all conditions set forth in all Governmental Approvals that are then required to be satisfied have been satisfied; and (D) to the best knowledge of the Responsible Officer providing such Officer's Certificate, no event has occurred that could reasonably be expected to result in the modification, cancellation or revocation of any Governmental Approval;
(xv) a certificate from the Chief Financial Officer of the Borrower attesting to the Solvency of the Borrower and its Subsidiaries, when considered as a whole, immediately before and immediately after giving effect to the Closing Date Transactions, in each case giving pro forma effect to the Closing Date Transactions;
(the Administrative Agent hereby acknowledges receipt of the audited financial statements xvi) certificates signed by a Responsible Officer 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 availableeffect that (A) consolidating balance sheets the representations and related statements warranties contained in Article IV are true and correct on and as 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 as though made on 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 such date both immediately before 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 immediately after giving effect to the Transactions as if being effected on the Closing Date (the "Closing Date Transactions"); and (B) no Default has occurred and is continuing or would result from the consummation of the Closing Date Transactions; and
(xvii) audited Consolidated financial statements for the Borrower and its Subsidiaries for the fiscal year ending December 31, 2004 and unaudited Consolidated financial statements for the Borrower and its Subsidiaries for the fiscal quarter ending March 31, 2005.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries or any such Person's properties pending or threatened, before any court, before or by any Governmental Authority or before any arbitrator which (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) (the "Disclosed Litigation"); (ii) purports to affect the Transactions had occurred as of such date (in or any portion thereof, the case of such balance sheet) or at the beginning of such period (in the case ability of the income statement);Borrower or any Loan Party to perform their respective obligations under the Financing Documents; or (iii) purports to affect the legality, validity or enforceability of any Financing Document, or the consummation of the Transactions.
(c) The Administrative Agent All Governmental Approvals and third party consents and approvals necessary in connection with the Transactions shall have received been obtained (without the notice imposition of borrowing any conditions that are adverse to the Lenders), shall be in full force and effect and not be subject to appeal and shall not contain any conditions which are then required to be satisfied and have not been satisfied; all then-applicable waiting periods in connection with the Transactions shall have expired without any action being taken by Section 2.03 hereof;any competent authority, and no law or regulation shall be applicable, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights of the Borrower or its Subsidiaries to create or maintain the perfection of any Lien on, any properties now owned or hereafter acquired by any of them.
(d) Since September 30Except for Disclosed Matters as of the date hereof, 2010since December 31, 2004, there having been no Target shall not have occurred any Material Adverse Effect;Change.
(e) The Arrangement Agreement Representations shall be true and correct as All conditions to the effectiveness of the Closing Date without regard to any materiality or material adverse effect qualification contained SIA Amendment set forth 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 Section 5 of the Target in Section 3.0(2)(c) of the Arrangement Agreement regarding the capitalization of the Target SIA Amendment shall be true and correct in all material respects;have been satisfied.
(f) The Specified Representations shall be true All required stamp duties, registration fees, filing costs and correct as other charges in connection with the execution, delivery, filing, recording, perfection, priority or admissibility in evidence of the Financing Documents, and the security interests purported to be granted by the Financing Documents, required to be paid on or prior to the Closing Date;Date shall have been paid in full or an appropriate exemption therefrom shall have been obtained.
(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;
All Taxes (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 due 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 in connection with the execution, delivery, filing, recording or admissibility in evidence of the Financing Documents or to ensure the legality, validity, enforceability, perfection or admissibility in evidence of the Financing Documents and (ii) due and payable on or prior to the Fee Letters) Closing Date by the BorrowerBorrower or any of its Subsidiaries in connection with the consummation of the transactions contemplated by, and the performance of, the Financing Documents shall, in the case of clauses (i) and (ii) of this Section 3.01(g), have been duly paid in full.
(h) The representations and warranties of the Borrower and each other Loan Party contained in Article IV and Article III of the Security Agreement shall be true and correct, on and as of the Closing Date (immediately before and immediately after the consummation of the Closing Date Transactions), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(i) No Default shall exist, or would result from the consummation of the Closing Date Transactions, including the making of the initial Borrowing and the application of the proceeds of such Borrowing.
(j) The Borrower shall have paid all accrued fees of the Agents, the Lenders and the Arranger Parties and all accrued expenses required to be reimbursed by the Borrower, to of the Administrative Agent, the Lead Arrangers or Collateral Agent and the Intercreditor Agent (including under the Existing Credit Agreement and under any Lender (other than a Defaulting LenderFee Letter and all fees and expenses payable pursuant to Section 9.04(a)) prior to the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower invoiced at least 3 Business Days 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 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 received occurred.
(b) (i) audited consolidated balance sheets and related statements of incomeThe Exelis Acquisition shall have been, stockholders’ equity and cash flows of each or substantially concurrently with the funding under the Facility shall be, consummated in accordance with the terms of the Borrower and the Target for the three most recent fiscal years ended at least 90 days prior Acquisition Agreement (as may be amended, supplemented or otherwise modified pursuant to the Closing Date subclause (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 yearsii)) and (ii) unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of each no provision 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 Acquisition Agreement shall have been satisfied waived, amended, supplemented or waived otherwise modified, and no consent by the Borrower or any of its Subsidiaries shall have been provided thereunder, in accordance with the Arrangement Agreement without any waiver, amendment, supplement or other modification to the Arrangement Agreement that each case which is materially adverse to the interests of the Lenders without the Arranger’s prior written consent of the Administrative Agent and each Initial Lender, (such consent not to be unreasonably withheld withheld, delayed or delayedconditioned); provided that, except for (Ax) any decrease in the conditions set forth in Section 6.03(3) cash portion of the Arrangement Agreement, (B) purchase consideration for the delivery Exelis Acquisition exceeding 10% in the aggregate shall be deemed materially adverse to the Lenders and any decrease of items the cash portion of such purchase consideration equal to or less than 10% in the aggregate shall be delivered on deemed not materially adverse to the Arrangement Effective Date Lenders so long as it shall have been allocated to reduce the Commitments in an amount equal to such reduction in the cash portion of the purchase consideration and (Cy) any increase in the satisfaction cash portion of those conditions that, by their terms, canthe purchase consideration equal to or less than 10% shall be deemed not be satisfied until immediately prior materially adverse 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;Lenders.
(i) Each Lender shall have receivedExcept as set forth in (x) the Company Reports (as defined in the Acquisition Agreement as of February 5, at least five Business Days 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 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 risk factors section 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.the
Appears in 1 contract
Sources: 364 Day Bridge Term Loan Agreement (Harris Corp /De/)
Conditions Precedent to Closing Date. The obligation of each Lender to make an Initial a Loan shall not become effective until the date (the “Closing Date”) on the Closing Date shall be subject to which each of the following conditions precedentshall be satisfied (or waived in accordance with Section 9.01) on or prior to the Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) The Administrative Agent shall have received copies of any Notes requested by any Lender and the other Loan Documents, in each case, executed by each party thereto.
(c) (i) The Acquisition shall have been, or substantially concurrently with the Closing Date shall be, consummated in accordance with the terms of the Acquisition Agreement and (ii) no provision of the Acquisition Agreement (as in effect on September 8, 2014) shall have been amended, supplemented or otherwise modified, and no consent or waiver by the U.S. 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 the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or delayed) (provided that any increase or reduction of the purchase price for the Acquisition of (x) greater than 10% shall, without limitation, be deemed materially adverse to the interests of the Lenders and (y) less than 10% shall, without limitation, be deemed not materially adverse to the interests of the Lenders).
(d) The Arrangers shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the U.S. Borrower and the Target for the last three most recent full 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 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 and cash flows of each of the U.S. Borrower and the Target for each subsequent fiscal quarterly interim period or periods (other than the fourth quarter of any fiscal year) ended at least 60 45 days before prior to the Closing Date (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 U.S. 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); (ii) customary pro forma financial statements shall be of the U.S. Borrower reflecting the Transactions; and (iii) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Acquired Business for the last three full fiscal years ended at least 60 days prior to the Closing Date, and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Acquired Business for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior to the Closing Date (and the corresponding period(s) of the prior fiscal year). The Arrangers hereby acknowledge receipt of all financial statements that have been publicly filed prior to the date hereof by the U.S. Borrower in conformity with GAAP as in effect in Canada);its annual reports on Form 10-K or quarterly reports on Form 10-Q. TERM LOAN AGREEMENT FMC CORPORATION
(be) The Lenders, the Administrative Agent and the Arrangers shall have received all fees required to be paid and due on the Closing Date and all expenses for which invoices have been presented at least two Business Days prior to the Closing Date, on or prior to the Closing Date (including, without limitation, amounts then payable pursuant to Section 2.05(a)).
(f) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income (in each case dated as of the Closing Date): (i) a Borrowing Notice in accordance with Section 3.01(a), (ii) an officer’s certificate signed by a senior officer of the U.S. Borrower that (x) there has been no change to the matters previously certified pursuant to Section 4.01(a)(ii)-(iii) (or otherwise providing updates to such certifications) and (y) that each of the conditions specified in this Section 4.02 have been satisfied as of the Closing Date and for (iii) a favorable opinion of (x) ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, U.S. counsel to the twelve-month period ending on the last day Borrowers and (y) certain local counsel to each of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) aboveEuro Borrowers, prepared after giving effect in each case, addressed to the Transactions Administrative Agent and the Lenders in form and substance reasonably accepted to the Administrative Agent and Lenders and covering such matters relating hereto as if any Lender, through 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);Administrative Agent, may reasonably request.
(cg) 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 relating to the Borrowers 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 Act; and
(j) All fees required to be paid (including fees payable on or prior to the Closing Date pursuant to the Fee Letters) , as reasonably requested by the Borrower, and all expenses required to be reimbursed by the Borrower, to any of the Administrative Agent, the Lead Arrangers or any Lender (other than a Defaulting Lender) prior to and the Closing Date shall have been paid, to the extent that invoices relating thereto have been presented to the Borrower Lenders at least 10 Business Days prior to the Closing Date. Without limiting the generality .
(h) (i) There shall exist no Specified Default and (ii) each of the provisions Acquisition Agreement Representations shall be true and correct and each 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 Specified Representations shall be deemed to have consented true and correct in all material respects (except any Specified Representations that are qualified by materiality, which shall be true and correct in all respects), in each case, at the time of, and after giving effect 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 making of the proposed Loans on the Closing Date specifying its objection theretoDate.
Appears in 1 contract
Sources: Term Loan Agreement (FMC Corp)
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 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 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.
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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.;
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Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make an Initial Loan Loans on the Closing Date 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 applicable Commitment Termination Date:
(a) The Administrative Agent Effective Date shall have occurred.
(b) All of the conditions precedent to the consummation of the Thoratec Acquisition shall have been satisfied in accordance with the terms and conditions of the Acquisition Agreement, and no provision of the Acquisition Agreement shall have been amended or modified, and no condition therein shall have been waived or consent granted, in any respect that is materially adverse to the Lenders or ▇▇▇▇▇▇▇ ▇▇▇▇▇ without ▇▇▇▇▇▇▇ ▇▇▇▇▇’▇ prior written consent (which consent shall not be unreasonably withheld or delayed); provided, that changes in the purchase price shall not be deemed to be materially adverse to the interests of the Lenders or ▇▇▇▇▇▇▇ ▇▇▇▇▇ and shall not require the consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ if such purchase price changes do not exceed 10% in aggregate.
(i) Except as set forth in (x) the Company SEC Documents (as defined in the Acquisition Agreement as of July 21, 2015) filed since January 1, 2014 and publicly available on the SEC’s Electronic Data Analysis and Retrieval System prior to July 21, 2015 (but (A) without giving effect to any amendment thereof filed with the SEC on or after July 21, 2015 and (B) excluding disclosures in the “Risk Factors” and “Forward-Looking Statements” sections of such reports and other disclosures that are similarly predictive, cautionary or forward-looking in nature) or (y) the Company Disclosure Schedule (as defined in the Acquisition Agreement as of July 21, 2015 and provided to ▇▇▇▇▇▇▇ ▇▇▇▇▇ on such date) (with each exception set forth in the Company Disclosure Schedule being identified by reference to, or grouped under a heading referring to, a specific individual section or subsection of the Acquisition Agreement and relating only to such section or subsection; provided, however, that a matter disclosed with respect to one representation or warranty shall also be deemed to be disclosed with respect to the terms hereof to the extent that the relevance of such information is readily apparent on its face), since January 3, 2015 through July 21, 2015 there shall not have occurred, arisen or come into existence any fact, change, event, development or circumstance, or any worsening thereof, which has had or would reasonably be expected to have an Acquired Business Material Adverse Effect and (ii) since July 21, 2015, there shall not have occurred and be continuing any change, event, development, condition, occurrence or effect or state of facts that, individually or in the aggregate, has had or would reasonably be expected to have an Acquired Business Material Adverse Effect.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇ shall have received (except to the extent that ▇▇▇▇▇▇▇ ▇▇▇▇▇ determines that it does not require any of the following) (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for each of the Borrower and the Target 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 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) (it being agreed that 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 Target 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)(a) audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Thoratec and its Subsidiaries, such financial statements shall be in conformity with GAAP as in effect in Canada);
Subsidiaries and (b) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income financial statements 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 and any other recent, probable or pending acquisitions or dispositions, in each case under this clause (ii) solely to the extent required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as if amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the Transactions had occurred as requirements of such date (in the case of such balance sheet) or at the beginning of such period (in the case Regulation S-X and all other accounting rules and regulations 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;SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The Arrangement Agreement Representations Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be true and correct as of paid on or prior to 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 pursuant this 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 other Loan Documents, to the Target in Section 3.0(2)(c) of extent invoiced at least two Business Days prior to the Arrangement Agreement regarding the capitalization of the Target shall be true and correct in all material respects;Closing Date.
(f) The Specified Representations shall be true and correct as of To 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 requested at least 10 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 (ii) by any of the Escrow Arrangement shall be in effect;
(i) Each Lender Administrative Agent, the Arrangers or the Lenders, the Administrative Agent shall have received, at least five 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 The Administrative Agent’s receipt of the following, each of which shall be paid originals or facsimiles (including fees payable on or prior to followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date pursuant (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Fee LettersAdministrative Agent and each of the Lenders:
(i) by favorable opinions of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, and all expenses required ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel to be reimbursed by the Borrower, each addressed to the Administrative Agent and each Lender, in the form of Exhibit E(1) or such other form as may be reasonably acceptable to the Administrative Agent, ;
(ii) (A) an officer’s certificate from a Responsible Officer of the Lead Arrangers Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or any Lender (other than a Defaulting Lenderotherwise providing updates to such certifications) prior to and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date shall have been paidand (B) a Solvency Certificate from the chief financial officer, to or other officer with equivalent duties, of the extent that invoices relating thereto have been presented to Borrower.
(iii) a Note executed by the Borrower prior to in favor of each Lender requesting a Note;
(iv) a Loan Notice in accordance with Section 2.02(a).
(i) There shall exist no Specified Default and (ii) each of the Acquisition Agreement Representations shall be true and correct and each of the Specified Representations shall be true and correct in all material respects (except 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 and application of the Loans on 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 3Section 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.
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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).
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