OF THE LENDERS
IN ANY MATERIAL RESPECT, IN ANY SUCH CASE WITHOUT THE PRIOR WRITTEN CONSENT OF
THE AGENTS (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD); AND
(II)
THE US BORROWER SHALL HAVE ISSUED SHARES
OF ITS COMMON STOCK PURSUANT TO AN UNDERWRITTEN PUBLIC OFFERING GENERATING GROSS
CASH PROCEEDS (CALCULATED BEFORE UNDERWRITING COSTS) OF APPROXIMATELY
$365,800,000, ALL AS CONTEMPLATED BY THE COMMON EQUITY FINANCING DOCUMENTS (THE
"COMMON EQUITY FINANCING").
95
(C)
PRO FORMA BALANCE SHEET; FINANCIAL
STATEMENTS. THE LENDERS SHALL HAVE RECEIVED (I) THE PRO FORMA BALANCE SHEET,
(II) AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE US BORROWER AND THE TARGET
DESCRIBED IN SECTIONS 4.1(B) AND (C), AND (III) UNAUDITED INTERIM CONSOLIDATED
FINANCIAL STATEMENTS OF THE US BORROWER AND THE TARGET FOR EACH FISCAL MONTH
ENDED SUBSEQUENT TO THE DATE OF THE LATEST APPLICABLE FINANCIAL STATEMENTS
DELIVERED PURSUANT TO CLAUSE (II) OF THIS SECTION AS TO WHICH SUCH FINANCIAL
STATEMENTS ARE AVAILABLE.
(D)
RELATED AGREEMENTS. THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED TRUE AND CORRECT COPIES, CERTIFIED AS TO AUTHENTICITY BY THE
US BORROWER, OF (I) THE ACQUISITION DOCUMENTATION AND (II) SUCH OTHER DOCUMENTS
OR INSTRUMENTS AS MAY BE REASONABLY REQUESTED BY THE ADMINISTRATIVE AGENT,
INCLUDING, WITHOUT LIMITATION, A COPY OF ANY DEBT INSTRUMENT, SECURITY AGREEMENT
OR OTHER MATERIAL CONTRACT TO WHICH THE LOAN PARTIES MAY BE A PARTY.
(E)
TERMINATION OF EXISTING CREDIT FACILITIES.
(I)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED EVIDENCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT THAT THE EXISTING CREDIT FACILITIES AND
ALL LETTERS OF CREDIT THEREUNDER SHALL BE SIMULTANEOUSLY TERMINATED, ALL AMOUNTS
THEREUNDER SHALL BE SIMULTANEOUSLY PAID IN FULL AND ARRANGEMENTS SATISFACTORY TO
THE ADMINISTRATIVE AGENT SHALL HAVE BEEN MADE FOR THE TERMINATION OF LIENS AND
SECURITY INTERESTS GRANTED IN CONNECTION THEREWITH.
(II)
ON THE CLOSING DATE AND AFTER GIVING
EFFECT TO THE CONSUMMATION OF THE TRANSACTION, THE US BORROWER AND ITS
SUBSIDIARIES SHALL HAVE NO OUTSTANDING INDEBTEDNESS, EXCEPT FOR (I) INDEBTEDNESS
PURSUANT TO OR IN RESPECT OF THE LOAN DOCUMENTS AND THE CANADIAN INTERCOMPANY
LOAN DOCUMENTS AND (II) CERTAIN OTHER INDEBTEDNESS EXISTING ON THE CLOSING DATE
AS LISTED ON SCHEDULE 7.2(D) (WITH THE INDEBTEDNESS DESCRIBED IN THIS SUB-CLAUSE
(II) BEING HEREIN CALLED THE "EXISTING INDEBTEDNESS").
(F)
FEES. THE LENDERS, THE ARRANGERS AND THE
AGENTS SHALL HAVE RECEIVED ALL FEES REQUIRED TO BE PAID, AND ALL EXPENSES FOR
WHICH INVOICES HAVE BEEN PRESENTED (INCLUDING REASONABLE FEES, DISBURSEMENTS AND
OTHER CHARGES OF COUNSEL TO THE AGENTS), ON OR BEFORE THE CLOSING DATE. ALL SUCH
AMOUNTS WILL BE PAID WITH PROCEEDS OF LOANS MADE ON THE CLOSING DATE AND WILL BE
REFLECTED IN THE FUNDING INSTRUCTIONS GIVEN BY THE RELEVANT BORROWER TO THE
FACILITY AGENTS, ON OR BEFORE THE CLOSING DATE.
(G)
PROJECTIONS. THE LENDERS SHALL HAVE RECEIVED
SATISFACTORY FINANCIAL PROJECTIONS FOR FISCAL YEARS 2008-2013.
(H)
SOLVENCY CERTIFICATE. THE LENDERS SHALL HAVE
RECEIVED A REASONABLY SATISFACTORY SOLVENCY CERTIFICATE SUBSTANTIALLY IN THE
FORM ATTACHED HERETO AS EXHIBIT L, EXECUTED BY THE CHIEF FINANCIAL OFFICER OF
THE US BORROWER.
(I)
LIEN SEARCHES. THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED THE RESULTS OF A