Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on the Closing Date shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Date: (a) The 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries 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) (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 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 and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3. (e) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant this Agreement and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date. (f) To the extent requested at least 10 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 Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act. (g) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent and each of the Lenders: (i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower. (iii) a Note executed by the Borrower 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on the Closing Date shall be subject to all occur on the date that each of the following conditions precedent having shall have been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Date:9.05):
(a) The the Effective Date shall have occurred.;
(b) All receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer 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 AgreementCompany, 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 certifying that is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx 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 Closing Date 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 Termination Date, as of July 21applicable, 2015 and provided to Xxxxxxx Xxxxx 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 21immediately before and after the Closing Date, 2015, there no Default shall not have occurred and be continuing any change, event, development, condition, occurrence or effect or state and (iii) the representations and warranties of facts that, individually or the Company contained in this Agreement shall be true on and as of the aggregate, has had or would reasonably be expected to have an Acquired Business Material Adverse Effect.
(d) Xxxxxx Xxxxx shall have received (except Closing Date provided that to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior to the Closing Date (occurs on or following the Acquisition Termination Date, the representations and warranties in Section 4.04 shall apply solely to the corresponding period(s) of the prior fiscal year) (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 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 and (b) pro forma financial statements of the Borrower giving effect Company;
(c) receipt by the Agent of all documents the Agent may reasonably request relating to the Transactions existence 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations good standing of the SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The ArrangersCompany, the Administrative Agent corporate authority for and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant validity of this Agreement and the Notes, and any other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 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 Business Days prior to the Closing Datematters relevant hereto, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent;
(d) receipt by the Agent of evidence reasonably satisfactory to it that the entire principal amount of any loans outstanding under, and all accrued interest, fees and all other amounts under, the Existing Credit Agreement shall have been paid in full and all commitments thereunder shall have been terminated;
(e) receipt by the Agent and each the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Lenders:Commitment Letter or the Fee Letters, including to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder; and
(f) receipt by the Agent of (i) favorable opinions an opinion of Xxxxx X. Xxxxxxx, the General Counsel of the BorrowerCompany, and Xxxxxx, Xxxx & Xxxxxxxx LLP, covering such matters as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 request and (ii) each an opinion of Xxxxxxxxxx & Xxxxx LLP, counsel to the Acquisition Agreement Representations Company, covering such matters as the Agent may reasonably request. The Agent shall be true promptly notify the Company and correct and each the Banks 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement and such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoconclusive and binding on all parties hereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, the Closing Date shall be subject to all not occur until and unless each and every one of the following conditions precedent having has been satisfied (or waived waived, in accordance with Section 10.01) on or before the applicable Commitment Termination DateLender’s sole discretion:
(a) The Effective Date Borrower shall have occurred.delivered to Lender all documents required by Lender to be delivered on or before the Closing Date;
(b) All of the conditions precedent to the consummation of the Thoratec Acquisition Lender shall have been satisfied in accordance received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt of all necessary governmental approvals, required certifications, including, but not limited to, compliance with the terms all laws, payment of all taxes and conditions satisfaction of the Acquisition Agreementall insurance requirements, 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall not such legal opinions as may reasonably 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx if such purchase price changes do not exceed 10% in aggregate.required by Lender;
(ic) 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 Xxxxxxx Xxxxx 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 No Material Adverse Effect and shall have occurred or shall exist;
(iid) since July 21, 2015, there No Default or Event of Default 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) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries 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) (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 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)continuing; and (ii)(a) audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Thoratec and its Subsidiaries and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.and
(e) Lender has received an executed copy of the Addendum to Macadamia Nut Purchase Agreement dated July , 2008 between Mauna Loa Macadamia Nut Corporation and Borrower (the “Addendum to Nut Purchase Agreement”) with terms and conditions to be approved by Lender. The ArrangersAddendum to Nut Purchase Agreement shall terminate no sooner than June 30, 2009, unless terminated earlier as provided in the Macadamia Nut Purchase Agreement. In addition, the Administrative Agent and the Lenders Addendum to Nut Purchase Agreement shall have received all fees and invoiced expenses required include a requirement for Mauna Loa to be paid on or prior purchase a minimum of 9 million wet in shell pounds of macadamia nuts from Borrower up to the Closing Date pursuant this Agreement and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any a maximum of the 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-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) 12 million wet in shell pounds. The Administrative Agent’s receipt of the following, each of which minimum price shall be originals or facsimiles (followed promptly by originals) unless otherwise specified$0.60 per pound, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) adjusted to 20% moisture and each in form and substance satisfactory 30% saleable kernel recovery to the Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrowerdry shell.
(iii) a Note executed by the Borrower 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make Loans its Term Loan A Advance and Term Loan B Advance, if any, on the Closing Date shall be subject to all the satisfaction of the following conditions precedent having been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Datethat:
(a) The 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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) Xxxxxx Xxxxx Administrative Agent shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any certified copies of the following) (i) audited consolidated balance sheets respective certificates of incorporation and related statements of income, stockholders’ equity and cash flows bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for each the partnership Subsidiaries;
(b) The Borrower shall have demonstrated to the reasonable satisfaction of the last three full fiscal years ended at least 60 days Administrative Agent in its sole good faith discretion that all conditions to the closing of the Acquisition, the making of Bridge Loans under the Bridge Facility and the effectiveness of the Existing Credit Agreement shall occur or have been waived pursuant to Section 8.01 on or before the Closing Date ---- (including payment of all amounts due under the Acquisition Documents), and that all transactions contemplated by the Related Documents to be consummated on the closing date of the Acquisition will take place prior to or simultaneously with the transactions hereunder contemplated to take place on the Closing Date and that the cash portion of the purchase price for the Acquisition does not exceed $650 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement), provided that the cash portion of the purchase price may be increased (up to an aggregate maximum of $680 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement)) to the extent that after giving effect to the Acquisition and the other transactions occurring on the Closing Date, and unaudited consolidated balance sheets and related statements including such increase in the cash purchase price, the Debt to Operating Cash Flow Ratio is less than or equal to 6.85x, all of income, stockholders’ equity and cash flows which is being funded solely with proceeds of the Advances and the Bridge Loans and the Majority Lenders shall be satisfied in their sole good faith discretion with terms and conditions of each of the Other Transaction Documents;
(c) The Borrower and shall have paid or caused to be paid, or the Administrative Agent shall have received evidence satisfactory to it in its Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior to sole good faith discretion that on the Closing Date (and the corresponding period(s) of the prior fiscal year) (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 Borrower of its annual report on Form 10-K shall pay, or quarterly report on Form 10-Q with respect cause to such fiscal year or interim period); and (ii)(a) audited and unaudited consolidated balance sheets and related statements of incomebe paid, stockholders’ equity and cash flows of Thoratec and its Subsidiaries and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The Arrangers, the Administrative Agent and the Lenders shall have received all accrued fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant this Agreement and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any of the Administrative Agent, the Syndication Agents, the Co-Arrangers or and the Lenders, including without limitation the arrangement fees payable under Section 2.06(a), participation ------- fees payable under Section 2.06(b) and the administrative fees payable under ------- Section 2.06(c), and (ii) all fees and expenses of Xxxxx Xxxx & Xxxxxxxx in ------- connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the consummation of the transactions contemplated hereby and thereby, in each case for which the Borrower has received a statement on or before the Closing Date;
(d) There shall not have been since December 31, 1999 any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis assuming consummation of the Acquisition);
(e) Except for the Disclosed Litigation, there shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which, in the reasonable opinion of the Lenders, could have a material adverse effect on the business, condition (financial or otherwise), operations, properties or prospects of the Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis assuming consummation of the Acquisition), or which, in the reasonable opinion of the Majority Lenders, may adversely affect the legality, validity or enforce ability of this Agreement, any other Loan Document or any Related Document, the ability of any Loan Party to perform its obligations hereunder or thereunder, or the rights of any Lender hereunder or thereunder or the ability of any Lender to exercise such rights;
(f) All material governmental and third party consents and approvals necessary or, in the reasonable opinion of the Majority Lenders, desirable or appropriate in connection with the Closing Date Transactions shall have been obtained (without the imposition of any conditions other than conditions that have been satisfied or waived on or before the Closing Date) and shall be in effect and final and non-appealable (it being understood that all Federal governmental consents and approvals are material), and without limiting the generality of the foregoing the Administrative Agent shall have received evidence satisfactory to it that the FCC shall have granted its consent to the assignment of the XXXX-TV station licenses to License Co. Sub, and such consent is in full force and effect and is a Final Order;
(g) BT Co. shall have received, at least five Business Days prior in its capacity as Administrative Agent or Collateral Agent, as appropriate, the following, each effective on the Closing Date (unless otherwise indicated below), in form and substance reasonably satisfactory to it in such capacity and in sufficient copies for each Lender (except for the Notes and certificates and stock powers relating to Pledged Stock):
(1) A Notice of Borrowing as required by Section 2.02(a) in respect of each Term Loan A Borrowing and Term Loan B Borrowing to be borrowed on the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including dated the PATRIOT Act.date of its delivery;
(g2) The Administrative Agent’s receipt Term Loan A Notes and Term Loan B Notes to the order of the followingrespective Lenders;
(3) Duly executed counterparts of this Agreement, signed by each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date parties hereto (or, in the case of certificates of governmental officialsany Lender as to which an executed counterpart shall not have been received, a recent date before the Closing Date) and each in form and substance satisfactory to receipt by the Administrative Agent and each in form satisfactory to it of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxxtelegraphic, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, telex or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice written confirmation from such Lender prior to the proposed Closing Date specifying its objection thereto.of execution of a counterpart hereof by such Lender);
Appears in 1 contract
Conditions Precedent to Closing Date. Notwithstanding the execution and delivery of this Agreement by all parties hereto, the Original Existing Credit Agreement shall remain in full force and effect and shall not be amended hereby unless and until the Closing Date occurs. The Lenders’ effectiveness of the amendment and restatement of the Original Existing Credit Agreement to be effected by this Agreement, and the obligation of each Lender to make Loans any Revolving Advance, any Term Loan A Advance and any Swingline Advance, if any, on and after the Closing Date shall occur at the Closing Time on the Closing Date and shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Datethat:
(a) The Effective Date Administrative Agent shall have occurred.received certified copies of the respective certificates of incorporation and bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for the partnership Subsidiaries;
(b) All The Borrower shall have demonstrated to the reasonable satisfaction of the Administrative Agent in its sole good faith discretion that all conditions precedent to the consummation closing of the Thoratec Acquisition Acquisition, the making of Bridge Loans under the Bridge Facility and the making of Other Term Loan A Advances and Term Loan B Advances under the New Credit Agreement shall occur or have been waived pursuant to Section 8.01 on or before the Closing Date (including payment of all amounts due under the Acquisition Documents), and that all transactions contemplated by the Related Documents to be consummated on the closing date of the Acquisition will take place prior to or simultaneously with the transactions hereunder contemplated to take place on the Closing Date and that the cash portion of the purchase price for the Acquisition does not exceed $650 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement), provided that the cash portion of the purchase price may be increased (up to an aggregate maximum of $680 million (subject to post-closing purchase price adjustments contemplated by the Acquisition Agreement)) to the extent that after giving effect to the Acquisition and the other transactions occurring on the Closing Date, including such increase in the cash purchase price, the Debt to Operating Cash Flow Ratio is less than or equal to 6.85x, all of which is being funded solely with proceeds of the Advances (as defined in the New Credit Agreement) under the New Credit Agreement and the Bridge Loans and the Majority Lenders shall be satisfied in accordance their sole good faith discretion with the terms and conditions of the Acquisition Agreement, and no provision each of the Acquisition Agreement Other Transaction Documents;
(c) The Borrower shall have been amended paid or modifiedcaused to be paid, and no condition therein or the Administrative Agent shall have been waived received evidence satisfactory to it in its sole good faith discretion that on the Closing Date the Borrower shall pay, or consent granted, in any respect that is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall not be unreasonably withheld or delayed); provided, that changes in the purchase price shall not be deemed cause to be materially adverse to the interests of the Lenders or Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx if such purchase price changes do not exceed 10% in aggregate.
paid, (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 all interest 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 commitment fees 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 Xxxxxxx Xxxxx 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) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior accrued but unpaid to the Closing Date under the Original Existing Credit Agreement (and whether or not then payable under the corresponding period(s) of the prior fiscal year) (it being understood thatterms thereof), 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 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 and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to (if any) payable under Section 8.04 of the Closing Date pursuant this Agreement Original Existing Credit Agreement, (iii) all ---- accrued fees and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any expenses of the Administrative Agent, the Syndication Agents, the Co-Arrangers or and the Lenders, including without limitation the Administrative Agent shall have receivedarrangement fees payable under Section 2.06(a), at least five Business Days prior to participation fees payable under Section 2.06(b) and the administrative fees payable under Section 2.06(c), and (iv) all ------- fees and expenses of Xxxxx Xxxx & Xxxxxxxx in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the consummation of the transactions contemplated hereby and thereby, in each case for which the Borrower has received a statement on or before the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.;
(gd) The Administrative Agent’s receipt There shall not have been since December 31, 1999 any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the followingBorrower and its Subsidiaries, each considered as a whole (but on a pro forma basis assuming consummation of which the Acquisition);
(e) Except for the Disclosed Litigation, there shall be originals exist no pending or facsimiles threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which, in the reasonable opinion of the Lenders, could have a material adverse effect on the business, condition (followed promptly by originalsfinancial or otherwise), operations, properties or prospects of the Borrower and its Subsidiaries, considered as a whole (but on a pro forma basis assuming consummation of the Acquisition), or which, in the reasonable opinion of the Majority Lenders, may adversely affect the legality, validity or enforce ability of this Agreement, any other Loan Document or any Related Document, the ability of any Loan Party to perform its obligations hereunder or thereunder, or the rights of any Lender hereunder or thereunder or the ability of any Lender to exercise such rights;
(f) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (All material governmental and third party consents and approvals necessary or, in the case reasonable opinion of certificates the Majority Lenders, desirable or appropriate in connection with the Closing Date Transactions shall have been obtained (without the imposition of governmental officials, a recent date any conditions other than conditions that have been satisfied or waived on or before the Closing Date) and each shall be in form effect and substance satisfactory to the Administrative Agent final and each of the Lenders:
non-appealable (i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrowerit being understood that all Federal governmental consents and approvals are material), and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless foregoing the Administrative Agent shall have received notice from such Lender prior evidence satisfactory to it that the FCC shall have granted its consent to the proposed assignment of the XXXX-TV station licenses to License Co. Sub, and such consent is in full force and effect and is a Final Order;
(g) BT Co. shall have received, in its capacity as Administrative Agent or Collateral Agent, as appropriate, the following, each effective on the Closing Date specifying (unless otherwise indicated below), in form and substance reasonably satisfactory to it in such capacity and in sufficient copies for each Lender (except for the Notes and certificates and stock powers relating to Pledged Stock):
(1) A Notice of Borrowing as required by Section 2.02(a) in respect ------- of any Revolving Advance and Swingline Advance to be borrowed on the Closing Date, dated the date of its objection thereto.delivery;
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, the Closing Date shall be subject to all not occur until and unless each and every one of the following conditions precedent having has been satisfied (or waived waived, in accordance with Section 10.01) on or before the applicable Commitment Termination DateLender’s sole discretion:
(a) The Effective Date Borrower shall have occurred.delivered to Lender all documents required by Lender to be delivered on or before the Closing Date:
(b) All of the conditions precedent to the consummation of the Thoratec Acquisition Lender shall have been satisfied in accordance received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt of all necessary governmental approvals, required certifications, including, but not limited to, compliance with the terms all laws, payment of all taxes and conditions satisfaction of the Acquisition Agreementall insurance requirements, 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall not such legal opinions as may reasonably 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx if such purchase price changes do not exceed 10% in aggregate.required by Lender;
(ic) 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 Xxxxxxx Xxxxx 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 No Material Adverse Effect and shall have occurred or shall exist;
(iid) since July 21, 2015, there No Default or Event of Default 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) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries 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) (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 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)continuing; and (ii)(a) audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Thoratec and its Subsidiaries and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.and
(e) The Arrangers, Borrower shall have delivered to Lender the Administrative Agent 2010 Term Loan Promissory Note and the Lenders shall have received all fees and invoiced expenses required Fourth Amendment to be paid on or prior to the Closing Date pursuant this Agreement and the other Revolving Loan DocumentsPromissory Note, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 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 Business Days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each both in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iiif) Borrower shall have delivered to Lender a Note executed by mortgage modification in form and substance satisfactory to Lender and Lender’s local counsel, to be recorded in the Borrower State of Hawaii Bureau of Conveyances for the purpose of giving constructive notice of the existence of this Agreement, the extension of the Mortgage to secure the 2010 Term Loan Promissory Note, and the additional real property security for the Revolving Loan and the 2010 Term Loan as described in favor of each Lender requesting a Note;the mortgage modification.
(ivg) a Loan Notice Borrower shall have obtained for Lender, at Borrower’s expense, such endorsements as Lender may require, in accordance Lender’s sole discretion, to the existing lender’s policy of title insurance that insures the Mortgage.
(h) Borrower shall have reimbursed Lender for its reasonable out-of-pocket expenses in connection with Section 2.02(a)this Agreement, including title insurance premiums, recording fees and the reasonable fees, charges and disbursements of local counsel for Lender.
(i) There Borrower shall exist no Specified Default cause the following leases and (license between International Air Service Company, LTD as lessor and Mauna Loa Macadamia Nut Corporation as lessee and licensee to be subordinated to the Mortgage as amended:
i) Unrecorded Agricultural Lease dated September 21, 1981, as amended on November 28, 1983, by and between International Air Service Company, LTD, organized under the laws of the State of California, “Lessor”, and Mauna Loa Macadamia Nut Corporation, a Hawaii corporation, “Lessee”, a memorandum thereof being recorded in Liber 15833 at Page 51, and Liber 17510 at Page 120, State of Hawaii, Bureau of Conveyances;
ii) each of the Acquisition Agreement Representations shall be true Unrecorded Agricultural Lease dated September 12, 1979, by and correct and each of the Specified Representations shall be true and correct in all material respects (except Specified Representations that are qualified by materialitybetween International Air Service Company, which shall be true and correct)LTD, in each case, at the time of“Lessor”, and after giving effect toMauna Loa Macadamia Nut Corporation, the making “Licensee”, a memorandum thereof being recorded in Liber 13991 at Page 687, State of Hawaii, Bureau of Conveyances;
iii) Unrecorded Agricultural Lease dated September 12, 1979, by and application between International Air Services Company, LTD, “Lessor”, and Mauna Loa Macadamia Nut Corporation, “Lessee”; a memorandum thereof being recorded in Liber 13991 at Page 680, State of the Loans on the Closing Date. Without limiting the generality Hawaii, Bureau of the provisions Conveyances; and
iv) Unrecorded Agricultural Lease dated June 24, 1983 by and between IASCO Farms, LTD, a California corporation, “Lessor”, and Mauna Loa Macadamia Nut Corporation, a Hawaii corporation, “Lessee”, a memorandum thereof being recorded in Liber 17134 at Page 701, State of Section 9.03Hawaii, for purposes Bureau of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoConveyances.
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lenders to make Loans on the Closing Date shall be hereunder is subject to all the occurrence of the Effective Date, the receipt of a Borrowing Request in accordance herewith and to the satisfaction of the following conditions precedent having been satisfied (or waived waiver in accordance with Section 10.01) on or before the applicable Commitment Termination Date:9.02):
(a) The Effective Date Arrangers shall have occurred.
(b) All received a copy of the conditions precedent to definitive Ixia Acquisition Agreement, together with all closing deliverables thereunder, certified by the consummation of the Thoratec Borrower as complete and correct. The Ixia Acquisition shall have been satisfied in accordance (or, substantially contemporaneously with the making of Loans hereunder, shall be) consummated pursuant to and on the terms and conditions of set forth in the Ixia Acquisition Agreement, and no provision of the Acquisition Agreement shall have been amended without giving effect to any amendments, waivers or modifiedother modifications thereto, and no condition therein shall have been waived or consent granted, in any respect that is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall not be unreasonably withheld or delayed); providedconsents thereunder, that changes in the purchase price shall not be deemed to be each case are materially adverse to the interests of the Lenders or Xxxxxxx Xxxxx and the Arrangers, unless the Arrangers shall not require the have provided their written consent thereto (it being understood that (i) any reduction of Xxxxxxx Xxxxx if such purchase price changes do not exceed less than 10% in aggregate.
(i) Except as set forth in (x) the Company SEC Documents (as defined in merger consideration for the Ixia Acquisition Agreement as of July 21will be deemed not to be materially adverse to the Lenders and the Arrangers, 2015) filed since January 1, 2014 and publicly available on provided that 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 Xxxxxxx Xxxxx 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 aggregate principal amount of the Acquisition Agreement and relating only Bridge Facility (and, after the Bridge Facility shall have been reduced to such section or subsection; providedzero, howeverthe aggregate amount of the Commitments) shall have been reduced on a dollar-for-dollar basis, 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 21any increase of less than 10% in the merger consideration for the Ixia Acquisition will be deemed not to be materially adverse to the Lenders and the Arrangers, 2015provided that such increase is solely in the form of the common stock of the Borrower issued as part of the merger consideration for the Ixia Acquisition).
(b) Since the date of the Ixia Acquisition Agreement, there shall has 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 been an Acquired Business Ixia Material Adverse Effect.
(dc) Xxxxxx Xxxxx The Arrangers shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any of the following) (i) audited consolidated balance sheets and related financial statements of incomethe Borrower, stockholders’ equity and cash flows of the Borrower and its Subsidiaries prepared in accordance with GAAP, for each of the last its three full most recent fiscal years ended at least 60 days prior to the Closing DateDate (and the related audit reports), and unaudited (ii) audited consolidated balance sheets and related financial statements of incomeIxia, stockholders’ equity and cash flows of prepared in accordance with GAAP, for the Borrower and its Subsidiaries for each subsequent three most recent fiscal quarterly interim period or periods years ended at least 40 60 days prior to the Closing Date (or such lesser number of fiscal years to the extent such lesser number would be indicated by Ixia’s significance pursuant to the Regulation S-X significance tests) (and the corresponding period(srelated audit report or reports), (iii) of the prior fiscal year) (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 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 and (b) pro forma financial statements of the Borrower giving effect Borrower, prepared in accordance with GAAP, for any fiscal quarter (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements delivered pursuant to clause (i) above (and corresponding periods of any prior year) and more than 40 days prior to the Transactions Closing Date, and (iv) unaudited consolidated financial statements of Ixia, prepared in accordance with GAAP, for any fiscal quarter (other recent, probable or pending acquisitions or dispositions, in each case under this than the fourth fiscal quarter) ended after the date of its most recent audited financial statements delivered pursuant to clause (ii) solely above (and corresponding periods of any prior year) and more than 40 days prior to the extent required by Rule 3-05 Closing Date, and Article 11 in respect of each of clauses (i) through (iv) meeting the requirements of Regulation S-X under the Securities Act. The Borrower’s and Ixia’s public filing with the SEC under the Exchange Act of 1933, as amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet any required financial statements will satisfy the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3this paragraph (c).
(ed) The ArrangersAdministrative Agent, the Administrative Agent Arrangers and the Lenders shall have received all fees and invoiced expenses required to be paid other amounts due and payable on or prior to the Closing Date pursuant this Agreement and the other Loan DocumentsDate, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(e) Substantially concurrently with the consummation of the Ixia Acquisition, the Ixia Refinancing shall be consummated, and the Arrangers shall receive customary payoff documentation in respect thereof.
(f) To The Administrative Agent and the extent requested at least 10 Business Days prior to Arrangers shall have received (i) a certificate, dated the Closing Date and signed by any the President, a Vice President or a Financial Officer of the Administrative AgentBorrower, confirming satisfaction of the Arrangers or the Lenders, the Administrative Agent shall have received, at least five Business Days prior conditions set forth in paragraphs (a) (solely as to the second sentence thereof), (b) and (g) of this Section and (ii) a certificate, dated the Closing DateDate and signed by the chief financial officer of the Borrower, all documentation substantially in the form of Exhibit C, demonstrating solvency (on a consolidated basis) of the Borrower and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT ActSubsidiaries as of the Closing Date after giving effect to the Transactions.
(g) The Administrative Agent’s receipt At the time of and upon giving effect to the borrowing and application of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before Loans on the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
, (i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 Acquired Business Representations shall be true and correct and each of correct, (ii) the Specified Representations shall be true and correct in all material respects (except Specified Representations that are qualified by materiality, which without duplication of any materiality qualifier set forth therein) and (iii) there shall be true and correctnot exist any Event of Default under clause (a), in each case(b), at the time of, and after giving effect to, the making and application (h) or (i) of the Loans on the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoArticle VII.
Appears in 1 contract
Samples: Term Credit Agreement (Keysight Technologies, Inc.)
Conditions Precedent to Closing Date. The Lenders’ obligation of each Bank to make Loans a Loan on the Closing Date occasion of the First Borrowing shall be subject to all the satisfaction of the following conditions precedent having been satisfied (or waived in accordance with Section 10.01) on or before prior to the applicable Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) All The Acquisition shall have been consummated, or substantially concurrently with the borrowing of the Loans under this Agreement shall be consummated, in all material respects in accordance with the terms set forth in the Share Purchase Agreement (and all conditions precedent to the consummation obligations of the Thoratec Borrower to consummate the Acquisition shall have been satisfied in accordance with on the terms and conditions of set forth in the Acquisition Share Purchase Agreement), and no provision of in each case giving effect to amendments, waivers or consents by the Acquisition Agreement shall have been amended or modifiedBorrower (other than any waiver, and no condition therein shall have been waived amendment or consent granted, in any with respect that is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall definition of Share Purchase Material Adverse Effect that has not been approved by the Lead Arranger, such approval not to 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx if such purchase price changes do not exceed 10% in aggregate.
(ic) 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 Xxxxxxx Xxxxx 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) Xxxxxx Xxxxx The Lead Arranger shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any of the followinga) (i) U.S. generally accepted accounting principles or IFRS, as applicable, audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and its Subsidiaries the Acquired Company for each of the last three full fiscal years ended 2010 and 2011 at least 60 100 days prior to the Closing DateDate and (b) U.S. generally accepted accounting principles or IFRS, as applicable, unaudited and unaudited consolidated internally prepared balance sheets and related statements of income, stockholders’ equity income and cash flows of each of the Borrower and the Acquired Company, by business or reporting unit and on a consolidated basis, for each subsequent fiscal quarter that ended at least 55 days before the Closing Date; provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Borrower will satisfy the foregoing requirements with respect to the Borrower.
(d) The Lead Arranger shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower and its Subsidiaries as of and for each subsequent fiscal quarterly interim the 12-month period or periods ended at least 40 days prior to ending on the Closing Date (and the corresponding period(s) last day of the prior most recently completed four-fiscal year) (it being understood that, with respect to such financial information quarter period for each such fiscal year and subsequent 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)(a) audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Thoratec and its Subsidiaries and (b) pro forma which financial statements of the Borrower have been delivered pursuant to Section 4.02(c) above, prepared after giving effect to the Transactions and any other recent, probable as if the Transactions had occurred as of such date (in the case of such balance sheet) or pending acquisitions or dispositions, at the beginning of such period (in each the 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 such statement of 1933, as amended (“Regulation S-X”income), which, in each of (i) and (ii), are . Such pro forma financial statements shall be prepared in accordance compliance, and consistent, with GAAP the Borrower’s own internal standards and meet the requirements of Regulation S-X and all other accounting rules and purposes without regard to external regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3or requirements.
(e) The Arrangers, the Administrative Agent and the Lenders Lead Arranger shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant this Agreement and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 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 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 the PATRIOT Act, as reasonably requested by the Lead Arranger in writing at least 10 Business Days prior to the Closing Date.
(gf) The Administrative Agent’s receipt At the time of and upon giving effect to the borrowing of the followingLoans, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 Share Purchase Agreement Representations shall be true and correct correct.
(g) Since September 30, 2012, there shall not have been any event, circumstance, change, occurrence, state of facts or effect (including the incurrence of any liabilities of any nature, whether or not accrued, contingent or otherwise) that has had or would reasonably be expected to have, individually or in the aggregate, a Share Purchase Agreement Material Adverse Effect.
(h) On the Closing Date, immediately before and after giving effect to such Borrowing and to the application of proceeds therefrom, the following statements shall be true (and each of the Specified Representations giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing, shall be deemed to constitute a representation and warranty by the Borrower that on the Closing Date, immediately before and after giving effect thereto and to the application of the proceeds therefrom, such statements are true):
(i) The representations and warranties contained in Section 5.01 (other than subsections (e), (f), (g), (h) and (i) thereof) are correct in all material respects on and as of the date of such Borrowing as though made on and as of such date (except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date);
(except Specified Representations that are qualified by materialityii) No event has occurred and is continuing, which shall be true and correct), in each case, at or would result from such Borrowing (or from the time of, and after giving effect to, the making and application of the Loans on the Closing Date. Without limiting the generality proceeds therefrom), which constitutes an Event of Default under Section 7.01(f); and
(iii) The principal amount of the provisions of Section 9.03Borrowing does not exceed the Aggregate Commitment at such time, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless and the Administrative Agent shall have received notice from such Lender prior other documents as any Bank through the Administrative Agent may reasonably request related to clause (i) or (ii) above.
(i) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.02.
(j) The Administrative Agent shall have received each Note requested by any Bank pursuant to Section 3.13 payable to the proposed Closing Date specifying its objection theretoorder of each such requesting Bank.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Baxter International Inc)
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make Loans on the Closing Date an Advance shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.018.01) on or before the applicable Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) All of the conditions precedent to the consummation of the Thoratec (i) The Acquisition shall have been satisfied been, or substantially concurrently with the funding of the Advances shall be, consummated in accordance with the terms and conditions of the Acquisition AgreementAgreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been amended waived, amended, supplemented or otherwise modified, and no condition therein consent by the Borrower or any of its Subsidiaries shall have been waived or consent grantedprovided thereunder, in any respect that each case which is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 without the Initial Arrangers’ prior written consent (such consent not to be unreasonably withheld, delayed or Xxxxxxx Xxxxx conditioned); provided that, (w)(i) any increase in the non-cash portion of the purchase consideration and shall not require (ii) any decrease in the consent non-cash portion of Xxxxxxx Xxxxx if such the purchase price changes do not exceed consideration equal to or less than 10% of the purchase consideration shall in aggregateeach case be deemed not materially adverse to the Lenders, (x) any decrease in the cash portion of the purchase consideration for the Acquisition shall be deemed not materially adverse to the 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 (y) any increase or decrease in the cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall be deemed not materially adverse to the Lenders. The Agent shall have received from the Borrower certified copies of the Acquisition Agreement and all amendments, modifications, waivers and consents, if applicable, under the Acquisition Agreement.
(ic) Except as set forth in (x) the corresponding sections or subsections of the Company SEC Documents Disclosure Letter (as defined in the Acquisition Agreement as Agreement) (it being understood that any disclosure set forth in one section or subsection 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 Xxxxxxx Xxxxx on such date) (Letter shall be deemed disclosure with each exception set forth in the Company Disclosure Schedule being identified by reference respect to, or grouped under a heading referring toand shall be deemed to apply to and qualify, a specific individual the section or subsection of the Acquisition Agreement to which it corresponds in number and relating only to such each other section or subsection; provided, however, that a matter disclosed subsection of the Acquisition Agreement to the extent the qualifying nature of such disclosure with respect to one representation such other section or warranty shall also be deemed subsection is reasonably apparent on the face of such disclosure) or, to be disclosed the extent the qualifying nature of such disclosure with respect to a specific representation and warranty is reasonably apparent therefrom, as set forth in the terms hereof Company Reports (as defined in the Acquisition Agreement) filed on or after January 1, 2016 and prior to the extent date of the Acquisition Agreement (excluding all disclosures (other than statements of historical fact) in any “Risk Factors” section and any disclosures included in any such Company Reports that the relevance of such information is readily apparent on its faceare cautionary, predictive or forward looking in nature), since January 3, 2015 through July 21December 31, 2015 there shall not have occurred, arisen or come into existence been any fact, change, eventeffect, circumstance or 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 thatwould, individually or in the aggregate, has had or would reasonably be expected likely to have an Acquired Business a Target Material Adverse Effect.
(d) Xxxxxx Xxxxx The Initial Arrangers shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any of the following) (i) audited consolidated balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries for each of the last three full fiscal years ended at least 60 75 days prior to the Closing Date, and unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries 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) (other than the last fiscal quarter of any 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 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 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 and (b) pro forma financial statements of the Borrower 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 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 1933income, comprehensive income and cash flows of the Target, as amended well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Target (“Regulation S-X”), which, which shall have been reviewed by the independent accountants for the Target as provided in each Statement of (iAuditing Standards No. 100) and (ii), are 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 Target 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 of the Borrower reflecting the Transactions, which meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3S-1, in each case in all material respects.
(e) The All costs, fees, expenses (including legal fees and expenses) to the extent invoiced at least three Business Days prior to the Closing Date and the fees payable pursuant to Section 2.03 to the Initial Arrangers, the Administrative Agent and or the Lenders shall have received all fees and invoiced expenses required to be been paid on or prior to the Closing Date pursuant this Agreement and the other Loan DocumentsDate, in each case, to the extent invoiced at least two Business Days required by this Agreement to be paid on or prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any of the Administrative Agent, the Arrangers or the Lenders, the Administrative The Agent shall have receivedreceived (i) a customary legal opinion of the Senior Executive Vice President and General Counsel or Vice President, at least five Business Days prior Associate General Counsel and Assistant Secretary of the Borrower substantially in the form of Exhibit D hereto and (ii) a customary legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel to the Closing DateAgent, all documentation as to the enforceability of this Agreement and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT ActNotes.
(g) The Administrative Agent’s receipt of the following, each of which Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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) have received an officer’s certificate dated as of the Closing Date from a Responsible Officer of the Borrower that there has been no change to the matters previous previously certified pursuant to Sections 4.01(a)(ii3.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 Sections 3.02(b) and (h) have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the BorrowerDate.
(iiih) a Note executed by the Borrower 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 Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case, case at the time of, and after giving effect to, the making and application of the Loans Advances on the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative .
(i) The Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoa Notice of Borrowing in accordance with Section 2.02(a).
Appears in 1 contract
Conditions Precedent to Closing Date. Notwithstanding the execution and delivery of this Amended Agreement by all parties hereto, the Existing Credit Agreement shall remain in full force and effect and shall not be amended hereby unless and until the Closing Date occurs. The Lenders’ effectiveness of the amendment and restatement of the Existing Credit Agreement to be effected by this Amended Agreement, and the obligation of each Lender to make Loans any Revolving Facility Advance and any Swingline Advance, if any, on the Closing Date shall occur at the Closing Time on the Closing Date and shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Datethat:
(a) The 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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) Xxxxxx Xxxxx Administrative Agent shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any certified copies of the following) (i) audited consolidated balance sheets respective certificates of incorporation and related statements of income, stockholders’ equity and cash flows bylaws of the Borrower and its corporate Subsidiaries and the respective certificates of limited partnership and agreements of limited partnership for each of the last three full fiscal years ended at least 60 days prior partnership Subsidiaries;
(b) The Borrower shall have paid or caused to be paid, or the Administrative Agent shall have received evidence satisfactory to it in its sole good faith discretion that on the Closing Date, and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Date the Borrower shall pay, or cause to be paid, (i) all interest and its Subsidiaries for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior commitment fees that are accrued but unpaid to the Closing Date under the Existing Credit Agreement (and whether or not then payable under the corresponding period(s) of the prior fiscal year) (it being understood thatterms thereof), 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 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 and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to (if any) payable under Section 8.04 of the Closing Date pursuant this Agreement Existing Credit Agreement, (iii) all accrued fees and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any expenses of the Administrative Agent, the Documentation Agent, the Syndication Agent, the Co- Arrangers or and the Lenders, including without limitation the Administrative Agent shall have receivedamendment fees payable under Section 2.06(B), at least five Business Days prior (iv) all amounts payable pursuant to Section 2.04(G) and (v) all fees and expenses of Xxxxx Xxxx & Xxxxxxxx, in connection with the preparation, execution and delivery of this Agreement, the other Loan Documents and the consummation of the transactions contemplated hereby and thereby, in each case for which the Borrower has received a statement on or before the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.;
(gc) The Administrative Agent’s receipt There shall not have been any material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of the followingBorrower or any of its Subsidiaries since December 31, each 1996;
(d) Except for the Disclosed Litigation, there shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or before any arbitrator or governmental instrumentality which, in the reasonable opinion of which shall be originals the Lenders, could have a material adverse effect on the condition (financial or facsimiles otherwise), operations, properties or prospects of the Borrower or any of its Subsidiaries or which, in the reasonable opinion of the Majority Lenders, may adversely affect the legality, validity or enforce ability of this Agreement, any other Loan Document or any Related Document, the ability of any Loan Party to perform its obligations hereunder or thereunder, or the rights of any Lender hereunder or thereunder or the ability of any Lender to exercise such rights;
(followed promptly by originalse) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (All material governmental and third party consents and approvals necessary or, in the case opinion of certificates the Majority Lenders, desirable or appropriate in connection with the Closing Date Transactions shall have been obtained (without the imposition of governmental officials, a recent date any conditions other than conditions that have been satisfied or waived on or before the Closing Date) and shall be in effect (it being understood that all Federal governmental consents and approvals are material);
(f) The Administrative Agent shall have received the following, each effective on the Closing Date (unless otherwise indicated below), in form and substance satisfactory to the Administrative Agent and in sufficient copies for each of Lender (except for the Lenders:Notes):
(i1) favorable opinions A Notice of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, Borrowing as special counsel to the Borrower, each addressed to the Administrative Agent and each Lender, required by Section 2.02(A) 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower in favor respect of each Lender requesting a Note;
(iv) a Loan Notice in accordance with Section 2.02(a).
(i) There shall exist no Specified Default Borrowing and (ii) each of the Acquisition Agreement Representations shall Swingline Advance to 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 borrowed on the Closing Date. Without limiting , dated the generality date of the provisions its delivery;
(2) Evidence of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved receipt by or acceptable or satisfactory to a Lender unless the Administrative Agent from each Lender of all amounts payable by such Lender pursuant to Section 2.04(B);
(3) The Revolving Facility Notes and Swingline Note to the order of the respective Lenders;
(4) Duly executed counterparts of this Amended Agreement, signed by each of the parties hereto (or, in the case of any Lender as to which an executed counterpart shall not have received notice been received, receipt by the Administrative Agent in form satisfactory to it of telegraphic, telex or other written confirmation from such Lender prior to of execution of a counterpart hereof by such Lender);
(5) Duly executed counterparts of the proposed Closing Date specifying its objection thereto.1997 Global Collateral Documents and Guaranty Agreement Amendment; and
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on the Closing Date shall be subject to all occur on the date that each of the following conditions precedent having shall have been satisfied (or waived in accordance with Section 10.01) on or before the applicable Commitment Termination Date:9.05):
(a) The the Effective Date shall have occurred.;
(b) All receipt by the Agent of a certificate, dated the Closing Date and signed by a duly authorized officer 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 AgreementCompany, 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 certifying that is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx 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 Closing Date 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 21immediately before and after the Closing Date, 2015, there no Default shall not have occurred and be continuing any change, event, development, condition, occurrence or effect or state of facts that, individually or in and (iii) the aggregate, has had or would reasonably be expected to have an Acquired Business Material Adverse Effect.
(d) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any representations and warranties of the following) (i) audited consolidated balance sheets Company contained in this Agreement shall be true on and related statements as of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for each of the last three full fiscal years ended at least 60 days prior to the Closing Date, ;
(c) receipt by the Agent of all documents the Agent may reasonably request relating to the existence and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows good standing of the Borrower and its Subsidiaries Company, the corporate authority for each subsequent fiscal quarterly interim period or periods ended at least 40 days prior to the Closing Date (and the corresponding period(s) validity of the prior fiscal year) (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 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 and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.
(e) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant this Agreement and the Notes, and any other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 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 Business Days prior to the Closing Datematters relevant hereto, all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent;
(d) receipt by the Agent of evidence reasonably satisfactory to it that the entire principal amount of any loans outstanding under, and all accrued interest, fees and all other amounts under, the Existing Credit Agreement shall have been paid in full and all commitments thereunder shall have been terminated;
(e) receipt by the Agent and each the Arrangers of all fees, reasonable out-of-pocket expenses and other compensation due and payable under this Agreement, the Lenders:Commitment Letter or the Fee Letters, including to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or thereunder; and
(f) receipt by the Agent of (i) favorable opinions an opinion of Xxxxx X. Xxxxxxx, the General Counsel of the BorrowerCompany, and Xxxxxx, Xxxx & Xxxxxxxx LLP, covering such matters as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrower.
(iii) a Note executed by the Borrower 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 request and (ii) each an opinion of Xxxxxxxxxx & Xxxxx LLP, counsel to the Acquisition Agreement Representations Company, covering such matters as the Agent may reasonably request. The Agent shall be true promptly notify the Company and correct and each the Banks 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement and such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoconclusive and binding on all parties hereto.
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make Loans on the Closing Date an Advance shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.018.01) on or before the applicable Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) All of the conditions precedent to the consummation of the Thoratec (i) The Acquisition shall have been satisfied been, or substantially concurrently with the funding of the Advances shall be, consummated in accordance with the terms and conditions of the Acquisition AgreementAgreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been amended waived, amended, supplemented or otherwise modified, and no condition therein consent by the Borrower or any of its Subsidiaries shall have been waived or consent grantedprovided thereunder, in any respect that each case which is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 without the Arrangers’ prior written consent (such consent not to be unreasonably withheld, delayed or Xxxxxxx Xxxxx conditioned); provided that, (w)(i) any increase in the non-cash portion of the purchase consideration and shall not require (ii) any decrease in the consent non-cash portion of Xxxxxxx Xxxxx if such the purchase price changes do not exceed consideration equal to or less than 10% of the purchase consideration shall in aggregateeach case be deemed not materially adverse to the Lenders, (x) any decrease in the cash portion of the purchase consideration for the Acquisition shall be deemed not materially adverse to the 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 (y) any increase or decrease in the cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall be deemed not materially adverse to the Lenders. The Agent shall have received from the Borrower certified copies of the Acquisition Agreement and all amendments, modifications, waivers and consents, if applicable, under the Acquisition Agreement.
(ic) Except as set forth in (x) the corresponding sections or subsections of the Company SEC Documents Disclosure Letter (as defined in the Acquisition Agreement as Agreement) (it being understood that any disclosure set forth in one section or subsection 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 Xxxxxxx Xxxxx on such date) (Letter shall be deemed disclosure with each exception set forth in the Company Disclosure Schedule being identified by reference respect to, or grouped under a heading referring toand shall be deemed to apply to and qualify, a specific individual the section or subsection of the Acquisition Agreement to which it corresponds in number and relating only to such each other section or subsection; provided, however, that a matter disclosed subsection of the Acquisition Agreement to the extent the qualifying nature of such disclosure with respect to one representation such other section or warranty shall also be deemed subsection is reasonably apparent on the face of such disclosure) or, to be disclosed the extent the qualifying nature of such disclosure with respect to a specific representation and warranty is reasonably apparent therefrom, as set forth in the terms hereof Company Reports (as defined in the Acquisition Agreement) filed on or after January 1, 2016 and prior to the extent date of the Acquisition Agreement (excluding all disclosures (other than statements of historical fact) in any “Risk Factors” section and any disclosures included in any such Company Reports that the relevance of such information is readily apparent on its faceare cautionary, predictive or forward looking in nature), since January 3, 2015 through July 21December 31, 2015 there shall not have occurred, arisen or come into existence been any fact, change, eventeffect, circumstance or 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 thatwould, individually or in the aggregate, has had or would reasonably be expected likely to have an Acquired Business a Target Material Adverse Effect.
(d) Xxxxxx Xxxxx The Arrangers shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any of the following) (i) audited consolidated balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries for each of the last three full fiscal years ended at least 60 75 days prior to the Closing Date, and unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries 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) (other than the last fiscal quarter of any 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 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 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 and (b) pro forma financial statements of the Borrower 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 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 1933income, comprehensive income and cash flows of the Target, as amended well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Target (“Regulation S-X”), which, which shall have been reviewed by the independent accountants for the Target as provided in each Statement of (iAuditing Standards No. 100) and (ii), are 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 Target 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 of the Borrower reflecting the Transactions, which meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3S-1, in each case in all material respects.
(e) The All costs, fees, expenses (including legal fees and expenses) to the extent invoiced at least three Business Days prior to the Closing Date and the fees payable pursuant to Section 2.03 to the Arrangers, the Administrative Agent and or the Lenders shall have received all fees and invoiced expenses required to be been paid on or prior to the Closing Date pursuant this Agreement and the other Loan DocumentsDate, in each case, to the extent invoiced at least two Business Days required by this Agreement to be paid on or prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any of the Administrative Agent, the Arrangers or the Lenders, the Administrative The Agent shall have receivedreceived (i) a customary legal opinion of the Senior Executive Vice President and General Counsel or Vice President, at least five Business Days prior Associate General Counsel and Assistant Secretary of the Borrower substantially in the form of Exhibit D hereto and (ii) a customary legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel to the Closing DateAgent, all documentation as to the enforceability of this Agreement and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT ActNotes.
(g) The Administrative Agent’s receipt of the following, each of which Agent shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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) have received an officer’s certificate dated as of the Closing Date from a Responsible Officer of the Borrower that there has been no change to the matters previous previously certified pursuant to Sections 4.01(a)(ii3.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 Sections 3.02(b) and (h) have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the BorrowerDate.
(iiih) a Note executed by the Borrower 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 Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case, case at the time of, and after giving effect to, the making and application of the Loans Advances on the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative .
(i) The Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoa Notice of Borrowing in accordance with Section 2.02(a).
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation of each Lender to make Loans on the Closing Date an Advance shall be subject to all of the following conditions precedent having been satisfied (or waived in accordance with Section 10.018.01) on or before the applicable Commitment Termination Date:
(a) The Effective Date shall have occurred.
(b) All of the conditions precedent to the consummation of the Thoratec (i) The Acquisition shall have been satisfied been, or substantially concurrently with the funding of the Advances shall be, consummated in accordance with the terms and conditions of the Acquisition AgreementAgreement (as may be amended, supplemented or otherwise modified pursuant to subclause (ii)) and (ii) no provision of the Acquisition Agreement shall have been amended waived, amended, supplemented or otherwise modified, and no condition therein consent by the Borrower or any of its Subsidiaries shall have been waived or consent grantedprovided thereunder, in any respect that each case which is materially adverse to the Lenders or Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x 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 without the Joint Bookrunners' prior written consent (such consent not to be unreasonably withheld, delayed or Xxxxxxx Xxxxx conditioned); provided that, (w)(i) any increase in the non-cash portion of the purchase consideration and shall not require (ii) any decrease in the consent non-cash portion of Xxxxxxx Xxxxx if such the purchase price changes do not exceed consideration equal to or less than 10% of the purchase consideration shall in aggregateeach case be deemed not materially adverse to the Lenders, (x) any decrease in the cash portion of the purchase consideration for the Acquisition shall be deemed not materially adverse to the 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 (y) any increase or decrease in the cash portion of the purchase consideration equal to or less than 10% of the purchase consideration shall be deemed not materially adverse to the Lenders. The Agent shall have received from the Borrower certified copies of the Acquisition Agreement and all amendments, modifications, waivers and consents, if applicable, under the Acquisition Agreement.
(ic) Except as set forth in (x) the corresponding sections or subsections of the Company SEC Documents Disclosure Letter (as defined in the Acquisition Agreement as Agreement) (it being understood that any disclosure set forth in one section or subsection 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 Xxxxxxx Xxxxx on such date) (Letter shall be deemed disclosure with each exception set forth in the Company Disclosure Schedule being identified by reference respect to, or grouped under a heading referring toand shall be deemed to apply to and qualify, a specific individual the section or subsection of the Acquisition Agreement to which it corresponds in number and relating only to such each other section or subsection; provided, however, that a matter disclosed subsection of the Acquisition Agreement to the extent the qualifying nature of such disclosure with respect to one representation such other section or warranty shall also be deemed subsection is reasonably apparent on the face of such disclosure) or, to be disclosed the extent the qualifying nature of such disclosure with respect to a specific representation and warranty is reasonably apparent therefrom, as set forth in the terms hereof Company Reports (as defined in the Acquisition Agreement) filed on or after January 1, 2016 and prior to the extent date of the Acquisition Agreement (excluding all disclosures (other than statements of historical fact) in any "Risk Factors" section and any disclosures included in any such Company Reports that the relevance of such information is readily apparent on its faceare cautionary, predictive or forward looking in nature), since January 3, 2015 through July 21December 31, 2015 there shall not have occurred, arisen or come into existence been any fact, change, eventeffect, circumstance or 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 thatwould, individually or in the aggregate, has had or would reasonably be expected likely to have an Acquired Business a Target Material Adverse Effect.
(d) Xxxxxx Xxxxx The Joint Bookrunners shall have received (except to the extent that Xxxxxxx Xxxxx determines that it does not require any of the following) (i) audited consolidated balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries for each of the last three full fiscal years ended at least 60 75 days prior to the Closing Date, and unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity comprehensive income and cash flows of the Borrower and its Subsidiaries 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) (other than the last fiscal quarter of any 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 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 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 and (b) pro forma financial statements of the Borrower 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 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 1933income, comprehensive income and cash flows of the Target, as amended well as unaudited interim consolidated balance sheets and related statements of income, comprehensive income and cash flows of the Target (“Regulation S-X”), which, which shall have been reviewed by the independent accountants for the Target as provided in each Statement of (iAuditing Standards No. 100) and (ii), are 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 Target 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 of the Borrower reflecting the Transactions, which meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3S-1, in each case in all material respects.
(e) The ArrangersAll costs, fees, expenses (including legal fees and expenses) to the extent invoiced at least three Business Days prior to the Closing Date and the fees payable pursuant to Section 2.03 to the Joint Bookrunners, the Administrative Agent and or the Lenders shall have received all fees and invoiced expenses required to be been paid on or prior to the Closing Date pursuant this Agreement and the other Loan DocumentsDate, in each case, to the extent invoiced at least two Business Days required by this Agreement to be paid on or prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any of the Administrative Agent, the Arrangers or the Lenders, the Administrative The Agent shall have receivedreceived (i) a customary legal opinion of the Senior Executive Vice President and General Counsel or Vice President, at least five Business Days prior Associate General Counsel and Assistant Secretary of the Borrower substantially in the form of Exhibit D hereto and (ii) a customary legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special New York counsel to the Closing DateAgent, all documentation as to the enforceability of this Agreement and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT ActNotes.
(g) The Administrative Agent’s receipt Agent shall have received an officer's certificate dated as of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated 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 Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous previously certified pursuant to Sections 4.01(a)(ii3.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 Sections 3.02(b) and (h) have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the BorrowerDate.
(iiih) a Note executed by the Borrower 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 Acquisition Agreement Representations and Specified Representations that are qualified by materiality, which shall be true and correct), in each case, case at the time of, and after giving effect to, the making and application of the Loans Advances on the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative .
(i) The Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoa Notice of Borrowing in accordance with Section 2.02(a).
Appears in 1 contract
Conditions Precedent to Closing Date. The Lenders’ obligation to make Loans on Notwithstanding any other provision of this Agreement and without affecting in any manner the rights of Lender hereunder, the Closing Date shall be subject to all not occur until and unless each and every one of the following conditions precedent having has been satisfied (or waived waived, in accordance with Section 10.01) on or before the applicable Commitment Termination DateLender’s sole discretion:
(a) The Effective Date Borrower shall have occurred.delivered to Lender all documents required by Lender to be delivered on or before the Closing Date;
(b) All of the conditions precedent to the consummation of the Thoratec Acquisition Lender shall have been satisfied in accordance received from Borrower current interim and, or fiscal year end financial statements, all updated pro-forma financial information, copies of all public filings and disclosures, evidence of receipt of all necessary governmental approvals, required certifications, including, but not limited to, compliance with the terms all laws, payment of all taxes and conditions satisfaction of the Acquisition Agreementall insurance requirements, 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 Xxxxxxx Xxxxx without Xxxxxxx Xxxxx’x prior written consent (which consent shall not such legal opinions as may reasonably 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 Xxxxxxx Xxxxx and shall not require the consent of Xxxxxxx Xxxxx if such purchase price changes do not exceed 10% in aggregate.required by Lender;
(ic) 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 Xxxxxxx Xxxxx 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 No Material Adverse Effect and shall have occurred or shall exist;
(iid) since July 21, 2015, there No Default or Event of Default 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) Xxxxxx Xxxxx shall have received (except to the extent that Xxxxxxx Xxxxx 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 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 Borrower and its Subsidiaries 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) (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 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)continuing; and (ii)(a) audited and unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Thoratec and its Subsidiaries and (b) pro forma financial statements of the Borrower 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 amended (“Regulation S-X”), which, in each of (i) and (ii), are prepared in accordance with GAAP and meet the requirements of Regulation S-X and all other accounting rules and regulations of the SEC promulgated thereunder applicable to registration statements on Form S-3.and
(e) Lender has received an executed copy of the Addendum to Macadamia Nut Purchase Agreement dated July 8, 2008 between Mauna Loa Macadamia Nut Corporation and Borrower (the “Addendum to Nut Purchase Agreement”) with terms and conditions to be approved by Lender. The ArrangersAddendum to Nut Purchase Agreement shall terminate no sooner than June 30, 2009, unless terminated earlier as provided in the Macadamia Nut Purchase Agreement. In addition, the Administrative Agent and the Lenders Addendum to Nut Purchase Agreement shall have received all fees and invoiced expenses required include a requirement for Mauna Loa to be paid on or prior purchase a minimum of 9 million wet in shell pounds of macadamia nuts from Borrower up to the Closing Date pursuant this Agreement and the other Loan Documents, to the extent invoiced at least two Business Days prior to the Closing Date.
(f) To the extent requested at least 10 Business Days prior to the Closing Date by any a maximum of the 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-customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(g) 12 million wet in shell pounds. The Administrative Agent’s receipt of the following, each of which minimum price shall be originals or facsimiles (followed promptly by originals) unless otherwise specified$0.60 per pound, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) adjusted to 20% moisture and each in form and substance satisfactory 30% saleable kernel recovery to the Administrative Agent and each of the Lenders:
(i) favorable opinions of Xxxxx X. Xxxxxxx, General Counsel of the Borrower, and Xxxxxx, Xxxx & Xxxxxxxx LLP, as special counsel to 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 Borrower that there has been no change to the matters previous certified pursuant to Sections 4.01(a)(ii) and (iii) (or otherwise providing updates to such certifications) and that the conditions set forth in this Section 4.02 have been satisfied as of the Closing Date and (B) a Solvency Certificate from the chief financial officer, or other officer with equivalent duties, of the Borrowerdry shell.
(iii) a Note executed by the Borrower 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 Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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