Conditions to Loans. The obligation of each Lender to make its Loans hereunder is subject to satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders: (a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders: (i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto; (ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note; (iii) a Committed Loan Notice relating to the Loans; and (iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1. (b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders). (c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 2 contracts
Samples: Credit Agreement (Amryt Pharma PLC), Credit Agreement (Amryt Pharma PLC)
Conditions to Loans. The obligation of each the Lender to make its the Loans hereunder is subject to satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersconditions:
(a) The Administrative Agent’s or In the Lenders’ (as applicable) case of the First Loan, the Lender's receipt of the following, each properly executed by a Responsible Officer dated the date of the signing making of the Loan Partyor as of an earlier date acceptable to the Lender, and each in form and substance reasonably satisfactory to the Required LendersLender and its counsel:
(i) completed requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the
(ii) Uniform Commercial Code financing statements (Form UCC-1) duly executed counterparts by the Borrower (naming the Lender as secured party and the Borrower as debtor and in form acceptable for filing in all jurisdictions that the Lender deems necessary or desirable to perfect the security interests granted to it hereunder) and, if applicable, termination statements or other releases duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the priority of the security interests granted to it hereunder;
(iii) the First Note, duly executed by the Borrower;
(iv) certificates of insurance required under Section 5.4 together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(v) copies of the Governing Documents of the Borrower and a copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the execution, delivery, and performance of this Agreement, the Guarantee other Loan Documents, and Collateral Agreementthe transactions contemplated hereby and thereby, attached to which is a certificate of the Pledge Agreement, Secretary or an Assistant Secretary of the UK Debenture, Borrower certifying (A) that such copies of the UK Share Charge 1, the Irish Security Governing Documents and each other Loan Document to be entered into as resolutions are true, complete, and accurate, have not been amended or modified since the date of such certification and are in full force and effect and (B) the incumbency, names, and true signatures of the Closing Date by each party theretoofficers of the Borrower authorized to sign the Loan Documents to which it is a party;
(iivi) an original Note executed by a certified copy of a certificate of the Secretary of State of the state of Delaware, dated a recent date, listing the certificate of incorporation of the Borrower and each amendment thereto on file in favor such official's office and certifying that (A) such amendments are the only amendments to such certificate of each Lender incorporation on file in that office, (B) the Borrower has requested a Notepaid all franchise taxes to the date of such certificate and (C) the Borrower is in good standing in that jurisdiction;
(iiivii) a Committed Loan Notice relating certified copy of a certificate of the
(viii) the opinion of counsel for the Borrower covering such matters incident to the Loanstransactions contemplated by this Agreement as the Lender may reasonably require;
(ix) a copy of the Borrower's Statement on Form 10-Q for its fiscal quarter ended March 31, 1999 filed with the United States Securities and Exchange Commission; and
(ivx) such other agreements and instruments as the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on Lender reasonably deems necessary in connection with the Closing Checklist attached hereto as Schedule 1transactions contemplated hereby.
(b) With respect to In the Chapter 11 Casecase of a Subsequent Loan, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to Lender's receipt of the LendersSecond Note, and the “Effective Date” Third Note or the Fourth Note, as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived case may be, duly executed by the Lenders)Borrower.
(c) There shall be no pending or, to the knowledge of the Borrower after due inquiry, threatened litigation, proceeding, inquiry, or other action (i) seeking an injunction or other restraining order, damages, or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could reasonably be expected to affect the business, prospects, operations, assets, liabilities, or condition (financial or otherwise) of the Borrower, except, in the case of clause (ii), where such litigation, proceeding, inquiry, or other action could not reasonably be expected to have a Material Adverse Effect in the judgment of the Lender.
(d) The Borrower shall have issued Convertible Notes paid to the Lender all fees and expenses required to be paid by it to the Lender as of such date as specified in the amount of $125,000,000 in exchange for commitment letter agreement dated May 7, 1999 between the Borrower and the Lender.
(ae) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes All representations and all other unsecured; indebtedness and liabilities warranties of the Borrower (contained in this Agreement and the other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which Loan Documents shall be allocated among the applicable creditors true and correct on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) of the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction date of the making of the applicable creditors’ claimsLoan; provided, however, that those representations and warranties expressly referring to another date shall be true and correct in all material respects as of such date.
(cf) No Event of Default or event which with the aggregate amount giving of obligations under notice or the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on passage of time, or both, would constitute an Event of Default shall be continuing or would result from the effective date making of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planapplicable Loan.
Appears in 1 contract
Samples: Loan and Security Agreement (Aviron)
Conditions to Loans. The obligation of each Lender (a) As conditions precedent to make its Loans hereunder is subject to satisfaction the initial disbursement of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required LendersLoans hereunder:
(ai) The Administrative Each Borrower shall have delivered or shall have had delivered to the Agent’s or , in form and substance and in quantities reasonably satisfactory to the Lenders’ (as applicable) receipt Agent and its counsel, each of the following:
(A) this Agreement, each properly duly executed by a Responsible Officer the parties hereto;
(B) each of the signing Loan PartySecurity Agreement and the Servicing Security Agreement and the Power of Attorney for each Borrower, duly executed (and notarized where required) by the parties thereto (which Powers of Attorney shall be "protocolized" under the laws of Puerto Rico by counsel to the Borrowers, and filed with the Registry of Powers of Attorneys and Willx xx counsel to the Borrowers promptly after the closing contemplated hereunder);
(C) a duly executed Facility 1 Note for each Lender with a Facility 1 Commitment and a duly executed Facility 2 Note for each Lender with a Facility 2 Commitment;
(D) duly executed documents, instruments, agreements and financing statements, properly executed, deemed necessary or appropriate by the Agent, in its reasonable discretion, to create in favor of the Lenders a valid and perfected first priority security interest in and lien upon the Collateral and the Eligible Servicing Receivables and a valid and perfected second priority security interest in and lien upon the Servicing Collateral (other than the Eligible Servicing Receivables);
(E) a certified copy of resolutions of the Board of Directors of each of the Borrowers approving the execution, delivery and performance of all Loan Documents required to be delivered by such parties hereunder and the transactions contemplated therein;
(F) a certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying the names and true signatures of the officers of such parties authorized to sign the Loan Documents required to be executed and delivered by such parties hereunder, in each case dated the Amendment Effective Date;
(G) an opinion of New York counsel and Puerto Rico counsel for the Borrowers in the form of Exhibit C-1 and Exhibit C-2, respectively, and covering such other matters as the Agent may reasonably request, dated the Amendment Effective Date;
(H) a copy of the Certificate of Incorporation or other equivalent document available in the applicable jurisdiction of each of the Borrowers certified by the appropriate officer of the jurisdiction of such party's incorporation as of a recent date;
(I) a copy of the Bylaws of each of the Borrowers, certified by the Secretary or an Assistant Secretary or other appropriate officer of each such party as of the Amendment Effective Date as being accurate and complete;
(J) a certificate of the appropriate officer in the jurisdiction of incorporation of each of the Borrowers certifying that such Borrower is in good standing as of a recent date;
(K) a certificate of an executive officer of each of the Borrowers, in the form of Exhibits D-1 and Exhibit D-2, respectively, dated the Amendment Effective Date;
(L) evidence satisfactory to the Agent that the Facility 1 Settlement Account has been opened;
(M) evidence of (aa) the acceptance by the Process Agent of its appointment pursuant to Section 8.7 and (bb) payment of all fees required by the Process Agent for serving in such capacity;
(N) a letter agreement from the Collateral Agent pursuant to which the Collateral Agent agrees to serve as Collateral Agent in connection with the REO Pledges; and
(O) the duly executed Intercreditor Agreement;
(ii) All acts and conditions (including the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws or if any of such have not been done, performed or happened, such has been expressly disclosed to the Agent and waived by all of the Lenders in writing;
(iii) All documentation, including documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents, shall be reasonably satisfactory in form and substance to the Agent and its counsel; and
(iv) The Borrowers shall have paid all Fees required to have been paid under the Loan Documents prior to or on the Amendment Effective Date.
(b) As additional conditions precedent to the disbursement of all Loans (including the initial Loans hereunder), at and as of the date of such disbursement:
(i) The representations and warranties of the Borrowers contained in the Loan Documents shall be accurate and complete in all material respects on and as of the date of such disbursement as if made on and as of such date;
(ii) No Potential Default or Event of Default shall have occurred and be continuing;
(iii) Following the funding of the requested Loan, the aggregate principal amount of Loans outstanding hereunder shall not exceed the limitations set forth in Sections 2.1 and 2.8;
(iv) Since December 31, 1998, no material adverse change shall have occurred in the business, financial condition or results of operations of DFC and its Subsidiaries, taken as a whole; and
(v) The Agent shall have received such other documents or legal opinions as the Agent or any Lender or special counsel to the Agent may reasonably request, all in form and substance reasonably satisfactory to the Required Lenders:
Agent. By delivering a Notice of Borrowing to the Agent hereunder for any Loan, the Borrowers shall be deemed to have represented and warranted the accuracy and completeness of the statements set forth in subsections (i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into through (iv) above as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence date of such Effective Date shall have been satisfied (or waived by the Lenders)Loan.
(c) The As conditions precedent to each Facility 2 Tranche B Borrowing (in addition to those set forth in Sections 3.1(a) and (b) above):
(i) Each Borrower shall have issued Convertible Notes delivered or shall have had delivered to the Agent, in form and substance and in quantities reasonably satisfactory to the Agent and its counsel, each of the following:
(A) all information reasonably requested by the Agent contained in the amount files of $125,000,000 the Borrowers relating to the Eligible REO Property to be included in exchange for the Facility 2 Tranche B Borrowing Base;
(aB) duly executed REO Demand Note(s);
(C) duly executed REO Mortgages with respect to all Eligible REO Property to be included in the Specified Portion Facility 2 Tranche B Borrowing Base;
(as hereinafter definedD) duly executed REO Pledge(s) of the Existing Convertible Notes REO Demand Note(s) to the Agent and the Facility 2 Lenders; and
(E) documentation required under 3.1(a)(i)(F)-(L) above, as applicable to the related Real Estate Closing, and as is reasonable and customary, and such other documentation as is also reasonable and customary, in connection with commercial real estate closings in Puerto Rico as determined by the Agent's counsel.
(ii) Simultaneously with such Facility 2 Tranche B Borrowing or as is otherwise customary in commercial real estate closings in Puerto Rico, the REO Mortgages shall be filed for recording with the applicable registries.
(iii) The Borrowers shall have paid all taxes, including mortgage recording and documentary stamp taxes, recording fees and charges and all other unsecured; indebtedness fees and liabilities charges of whatever kind in connection with the applicable Real Estate Closing, including costs and expenses of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claimsAgent's outside counsel, and (c) evidence thereof shall have been delivered to the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization PlanAgent.
Appears in 1 contract
Conditions to Loans. The obligation of each Lender (a) As conditions precedent to make its Loans hereunder is subject to satisfaction the initial disbursement of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required LendersLoans hereunder:
(ai) The Administrative Each Borrower shall have delivered or shall have had delivered to the Agent’s or , in form and substance and in quantities reasonably satisfactory to the Lenders’ (as applicable) receipt Agent and its counsel, each of the following:
(A) this Agreement, each properly duly executed by a Responsible Officer the parties hereto;
(B) each of the signing Loan PartySecurity Agreement and the Warehouse Security Agreement and the Power of Attorney for each Borrower, duly executed (and notarized where required) by the parties thereto (which Powers of Attorney shall be "protocolized" under the laws of Puerto Rico by counsel to the Borrowers, and filed with the Registry of Powers of Attorneys and Willx xx counsel to the Borrowers promptly after the closing contemplated hereunder);
(C) a duly executed Note for each Lender;
(D) duly executed documents, instruments, agreements and financing statements, properly executed, deemed necessary or appropriate by the Agent, in its reasonable discretion, to create in favor of the Lenders a valid and perfected first priority security interest in and lien upon the Collateral (other than the Eligible Servicing Receivables) and a valid and perfected second priority security interest in and lien upon the Warehouse Collateral and the Eligible Servicing Receivables;
(E) a certified copy of resolutions of the Board of Directors of each of the Borrowers approving the execution, delivery and performance of all Loan Documents required to be delivered by such parties hereunder and the transactions contemplated therein;
(F) a certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying the names and true signatures of the officers of such parties authorized to sign the Loan Documents required to be executed and delivered by such parties hereunder, in each case dated the Amendment Effective Date;
(G) an opinion of New York counsel and Puerto Rico counsel for the Borrowers in the form of Exhibit C-1 and Exhibit C-2, respectively, and covering such other matters as the Agent may reasonably request, dated the Amendment Effective Date;
(H) a copy of the Certificate of Incorporation or other equivalent document available in the applicable jurisdiction of each of the Borrowers certified by the appropriate officer of the jurisdiction of such party's incorporation as of a recent date;
(I) a copy of the Bylaws of each of the Borrowers, certified by the Secretary or an Assistant Secretary or other appropriate officer of each such party as of the Amendment Effective Date as being accurate and complete;
(J) a certificate of the appropriate officer in the jurisdiction of incorporation of each of the Borrowers certifying that such Borrower is in good standing as of a recent date;
(K) a certificate of an executive officer of each of the Borrowers, in the form of Exhibit D-1 and Exhibit D-2, respectively, dated the Amendment Effective Date;
(L) evidence of (aa) the acceptance by the Process Agent of its appointment pursuant to Section 8.7 and (bb) payment of all fees required by the Process Agent for serving in such capacity;
(M) a schedule of servicing rights included in the Pledged Servicing Portfolio, including the owner of such servicing rights and otherwise in form and substance acceptable to the Agent; and
(N) the duly executed Intercreditor Agreement;
(ii) All acts and conditions (including the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws or if any of such have not been done, performed or happened, such has been expressly disclosed to the Agent and waived by all of the Lenders in writing;
(iii) All documentation, including documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents, shall be reasonably satisfactory in form and substance to the Agent and its counsel; and
(iv) The Borrowers shall have paid all fees required to have been paid under the Loan Documents prior to or on the Amendment Effective Date.
(b) As additional conditions precedent to the disbursement of all Loans (including the initial Loans hereunder), at and as of the date of such disbursement:
(i) The representations and warranties of the Borrowers contained in the Loan Documents shall be accurate and complete in all material respects on and as of the date of such disbursement as if made on and as of such date;
(ii) No Potential Default or Event of Default shall have occurred and be continuing;
(iii) Following the funding of the requested Loan, the aggregate principal amount of Loans outstanding hereunder shall not exceed the limitations set forth in Sections 2.1 and 2.8;
(iv) Since December 31, 1998, no material adverse change shall have occurred in the business, financial condition or results of operations of DFC and its Subsidiaries, taken as a whole; and
(v) The Agent shall have received such other documents or legal opinions as the Agent or any Lender or special counsel to the Agent may reasonably request, all in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1Agent.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Conditions to Loans. The obligation of each Lender to make its Loans hereunder each Loan is subject to satisfaction the fulfillment of each of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent in form and the Required Lenderssubstance satisfactory to Lender:
(a) The Administrative Agent’s or Lender shall have received good standing certificates of Solomon and the Lenders’ (Acquisition Entity, each certified as applicable) receipt of a recent date prior to the date of the followingdisbursement of the applicable Loan hereunder by the appropriate official of Solomon’s and Acquisition Entity’s jurisdictions of organization;
(b) Lender shall have received the charter and bylaws of the Acquisition Entity certified by an officer of the Acquisition Entity as being true and correct and in effect on the date of the Loan;
(c) Lender shall have received duly executed resolutions of the Acquisition Entity authorizing it to execute and deliver the Note, each properly the Security Agreement and the Financing Statements;
(d) Lender shall have received the Note and Security Agreement duly executed by a Responsible Officer the Acquisition Entity and the original counterpart of all filed Financing Statements stamped by the appropriate government filing offices;
(e) Lender shall have received the guaranty of Solomon with respect to the Loan;
(f) Lender shall have received an opinion of counsel to Solomon and the Acquisition Entity covering such matters as Lender shall have reasonably requested on the date of the signing disbursement of the initial Loan Partyhereunder, and each in form and substance reasonably all legal matters relating to the transactions contemplated by this Agreement shall be satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into counsel for Lender as of the Closing Date by time each party theretoLoan is disbursed hereunder;
(iig) an original Note executed by each representation and warranty contained in this Agreement shall be true and correct and no Event of Default shall be continuing, in each case as of the Borrower in favor of date each Lender that has requested a Note;
(iii) a Committed Loan Notice relating is to the Loansbe made hereunder; and
(ivh) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there Lender shall have been entered a final order confirming the Reorganization Plan in form received such other documents and substance reasonably satisfactory to the Lenders, and the “Effective Date” opinions as set forth in the Reorganization Plan it shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders)reasonably requested.
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Samples: Acquisition Line of Credit Agreement (Solomon Technologies Inc)
Conditions to Loans. The obligation of each Lender (a) As conditions precedent to make its Loans hereunder is subject to satisfaction the initial disbursement of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required LendersLoans hereunder:
(ai) The Administrative Each Borrower shall have delivered or shall have had delivered to the Agent’s or , in form and substance and in quantities reasonably satisfactory to the Lenders’ (as applicable) receipt Agent and its counsel, each of the following:
(A) this Agreement, each properly duly executed by a Responsible Officer the parties hereto;
(B) each of the signing Loan PartySecurity Agreements and the Power of Attorney for each Borrower, duly executed (and notarized where required) by the parties thereto (which Powers of Attorney shall be "protocolized" under the laws of Puerto Rico by counsel to the Borrowers, and filed with the Registry of Powers of Attorneys and Willx xx local counsel to the Agent promptly after the closing contemplated hereunder);
(C) a duly executed Note for each Lender;
(D) duly executed documents, instruments, agreements and financing statements, properly executed, deemed necessary or appropriate by the Agent, in its reasonable discretion, to create in favor of the Lenders a valid and perfected, first priority security interest in and lien upon the Collateral;
(E) a certified copy of resolutions of the Board of Directors of each of the Borrowers approving the execution, delivery and performance of all Loan Documents required to be delivered by such parties hereunder and the transactions contemplated therein;
(F) a certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying the names and true signatures of the officers of such parties authorized to sign the Loan Documents required to be executed and delivered by such parties hereunder, in each case dated the date of this Agreement;
(H) a copy of the Certificate of Incorporation or other equivalent document available in the applicable jurisdiction of the Borrowers certified by the appropriate officer of the jurisdiction of such party's incorporation as of a recent date;
(I) a copy of the Bylaws of the Borrowers, certified by the Secretary or an Assistant Secretary or other appropriate officer of each such party as of the date of this Agreement as being accurate and complete;
(J) a certificate of an executive officer of each of the Borrowers, in the form of Exhibits D-1 and D-2, respectively, dated the date of this Agreement;
(K) duly executed acknowledgment agreements from each of FNMA and FHLMC relating to the validity of the Secured Parties' security interest in the Pledged Servicing Portfolio;
(L) evidence of (I) the acceptance by the Process Agent of its appointment pursuant to Section 8.7 and (II) payment of all fees required by the Process Agent for serving in such capacity;
(M) a copy of the letter delivered to the parties to the contracts pledged and assigned to the Secured Parties pursuant to the Loan Documents (together with evidence of such delivery) notifying such parties of the security interests in such contracts and the contract rights related thereto granted to the Secured Parties pursuant to the Loan Documents, which letter shall be in substantially the form of Attachment 2 to the Security Agreement;
(N) a schedule of servicing rights included in the Pledged Servicing Portfolio, including the owner of such servicing rights and otherwise in form and substance acceptable to the Agent;
(O) a duly executed Intercreditor Agreement; and
(P) a waiver under the Warehouse Credit Agreement duly executed by each of the Warehouse Lenders..
(ii) All acts and conditions (including the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws or if any of such have not been done, performed or happened, such has been expressly disclosed to the Agent and waived by all of the Lenders in writing.
(iv) The Borrowers shall have paid all Fees required to have been paid under the Loan Documents prior to or on the date of this Agreement.
(b) As additional conditions precedent to the disbursement of all Loans (including the initial Loans hereunder), at and as of the date of such disbursement:
(i) The representations and warranties of the Borrowers contained in the Loan Documents shall be accurate and complete in all material respects on and as of the date of such disbursement as if made on and as of such date.
(ii) No Potential Default or Event of Default shall have occurred and be continuing.
(iii) Following the funding of the requested Loan, the aggregate principal amount of Loans outstanding hereunder shall not exceed the limitations set forth in Sections 2.1 and 2.8.
(iv) Since December 31, 1996, no material adverse change shall have occurred in the business, financial condition or results of operations of DFC and its Subsidiaries, taken as a whole.
(v) The Agent shall have received such other documents or legal opinions as the Agent or any Lender or special counsel to the Agent may reasonably request, all in form and substance reasonably satisfactory to the Required Lenders:
Agent. By delivering a Notice of Borrowing to the Agent hereunder for any Loan, the Borrowers shall be deemed to have represented and warranted the accuracy and completeness of the statements set forth in subsections (i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into through (iv) above as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence date of such Effective Date shall have been satisfied (or waived by the Lenders)Loan.
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Conditions to Loans. The Each Lender’s obligation of each Lender to make its fund the initial Loans hereunder to be issued under this Agreement on the Closing Date is subject to satisfaction of the following conditions precedentprecedent (as well as any other conditions set forth in this Agreement or any other Loan Document), except all of which must be satisfied in a manner acceptable to Agent (and as otherwise agreed between the Borrowerapplicable, the Administrative Agent pursuant to documentation which in each case is in form and the Required Lenders:substance acceptable to Agent):
(a) The Administrative Agent’s or the Lenders’ (each Loan Party shall have duly executed and/or delivered, or, as applicable, shall have caused such other applicable Persons to have duly executed and or delivered, to Agent such agreements, instruments, documents, proxies, financial statements, projections, lien searches, legal opinions, title insurances, assessments, appraisals, and certificates as Agent may require, including such other agreements, instruments, documents, proxies, financial statements, projections, lien searches, legal opinions, title insurance, assessments, appraisals, any assignment agreements, and certificates listed on the closing checklist attached hereto as Exhibit B;
(b) receipt Agent shall have completed its business and legal due diligence pertaining to the Loan Parties and their respective businesses and assets, with results thereof satisfactory to Agent in its sole discretion;
(c) Agent shall have received satisfactory evidence that upon execution and delivery of this Agreement and the other Loan Documents, the Agent shall have a legal, valid and binding first priority perfected Lien on, and security interest in, all right, title and interest of the followingLoan Parties in the Collateral, each properly subject only to Permitted Liens;
(i) Liquidity shall not be less than $50,000,000 immediately after giving effect to the Transactions, and Agent shall have received evidence satisfactory to it thereof and (ii) the Agent shall have received a Borrowing Base Certificate acceptable to it, dated as of the Closing Date, and executed by a Responsible Financial Officer of the signing Borrower Representative demonstrating that the outstanding balance of all Loans on the Closing Date will not exceed the Borrowing Base;
(e) since December 31, 2023 no event shall have occurred which has had, or could reasonably be expected to have, a Material Adverse Effect on any Loan Party;
(f) Agent shall have received intercreditor or subordination agreements, lien releases and each such other documents and agreement, in form and substance reasonably satisfactory to the Required Lenders:Agent with respect to any continuing Indebtedness, equipment financings and surety bonds with respect to change order claims held by Zurich Insurance (or any other bonding companies, as applicable));
(g) Agent shall have received (i) an authorization letter, permitting the Agent to prefile all UCC financing statements and take all steps reasonably necessary to perfect the Agent’s first priority perfected security interest in the Collateral no less than fourteen (14) days prior to the Closing Date, (ii) evidence satisfactory to the Agent of the filing of all necessary UCC financing statements, including without limitation, file stamped UCC financing statements and lien searches confirming the Agent’s filing of such UCC financing statements, and (iii) evidence satisfactory to Agent of the filing of all necessary PPSA financing statements, including without limitation, certified PPSA verification statements and certified lien searches confirming the filing of such PPSA financing statements;
(h) Agent shall have received a payoff letter from Frost Bank and Texas Capital Bank in respect of the Existing Indebtedness, in form and substance satisfactory to Agent, evidencing that the Existing Indebtedness has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full, and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(i) executed counterparts Agent be satisfied with any Indebtedness and Lxxxx continuing after the Closing Date;
(j) Borrowers shall have paid to Agent and Lenders all fees due on the date hereof, and shall have paid or reimbursed Agent for all of this AgreementAgent’s reasonable and documented out-of-pocket costs, charges and expenses incurred through the Guarantee Closing Date;
(k) Borrower Representative shall have provided to Agent, in each case, in scope, and with results, satisfactory to Agent (i) such information as Agent may require in order to determine the Borrowing Base (including the items set forth in Section 7.15(a), (b) and (c) (as applicable)), as of such borrowing or issue date, after giving effect to such Loans and (ii) the results of all Collateral Agreementappraisals (including but not limited to appraisals of the Loan Parties’ Equipment) and commercial finance examinations (including, without limitation, a field examination) reasonably requested by Agent for the Pledge AgreementClosing Date;
(l) Agent shall have received all such financial statements and projections reasonably requested by Agent (including, without limitation, such pro forma financial statements as may be reasonably requested, giving pro forma effect to the UK DebentureTransactions on the Closing Date, Financial Performance Projections covering each Fiscal Month for the UK Share Charge 1, first full twelve-Fiscal Month period following the Irish Security Documents Closing Date and each of the two (2) next succeeding Fiscal Years after such twelve-Fiscal Month period and the Initial Quality of Earnings Report) and the capital structure of the Loan Parties and their respective Subsidiaries shall be satisfactory to Agent and the Lenders;
(m) all representations and warranties contained in this Agreement and the other Loan Document to Documents or otherwise made in writing in connection herewith or therewith shall be entered into true and correct in all material respects (except in the case of any representation and warranty qualified by materiality, in which case they shall be true and correct in all respects) with the same effect as if made on and as of the Closing Date by each party theretoDate, other than representations and warranties that relate solely to an earlier date, which shall be true and correct in all material respects (or all respects, as applicable) as of such earlier date;
(iin) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating both before and after giving effect to the Loans, no Default or Event of Default shall have occurred and be continuing; and
(ivo) Agent shall have received all documentation and other information about the certificatesLoan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and to the extent applicable, Canadian Anti-Money Laundering & Anti-Terrorism Legislation. The request (or deemed request) by Borrowers for funding of the Loans on the Closing Date shall constitute a representation by each Borrower that the foregoing conditions are satisfied on the date of such request and on the Closing Date. As an additional condition to any funding, issuance or grant on the Closing Date, Agent shall have received such other information, documents, instruments, agreements, legal opinions instruments and deliverables set forth on the Closing Checklist attached hereto agreements as Schedule 1it deems appropriate in connection therewith in its Permitted Discretion.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Southland Holdings, Inc.)
Conditions to Loans. The obligation of each Lender the Lenders to make its Loans hereunder is each Loan shall be subject to the fulfillment (to the reasonable satisfaction of the Agent) of the following conditions precedentprecedent which, except as otherwise agreed between in the Borrower, case of the Administrative Agent and initial Loans shall be in addition to the Required Lendersother conditions set forth in Section 4.1:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by Agent shall have received a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to such Loan, together with the Loans; and
(iv) Borrowing Computation certified by the certificatespresident, documentschief financial officer or vice president-finance of the Borrower, instruments, agreements, legal opinions and deliverables set forth on which shall establish to the Closing Checklist attached hereto as Schedule 1reasonable satisfaction of the Agent that the Borrowing Base is equal to or greater than the outstanding principal amount of the Loans after giving effect to the Loan proposed to be made.
(b) With respect to If the Chapter 11 Caserequested Loan is a Conversion Term Loan, there each Lender shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders)received an executed Conversion Term Note.
(c) Upon request of the Agent or when the Original Cost of Eligible Equipment for each Eligible Lease or Eligible Rental Contract relating thereto on the basis of which such Loan is being made exceeds $10,000, the Agent shall have received the original bills of sale issued by the seller or the manufacturer of the Eligible Equipment to which such Loan pertains showing the initial invoiced cost of all such Eligible Equipment and the Eligible Leases and Eligible Rental Contracts with respect thereto.
(d) The Borrower shall have issued Convertible Notes executed and delivered to the Agent and the Agent shall forward to each Lender a Security Agreement Supplement and Assignment of Leases Supplement in form and substance satisfactory to the Agent and the Lenders covering the Equipment and Leases to which such Loan pertains.
(e) The Borrower shall have perfected its interest in the amount Equipment against each lessee of Equipment in each case where such lessee is leasing Equipment with an aggregate Original Cost of $125,000,000 in exchange for (a) 10,000 or more by the Specified Portion (filing of a precautionary UCC financing statement naming the Borrower as hereinafter defined) secured party/lessor and the lessee of such Equipment as debtor/lessee and shall have delivered to the Existing Convertible Notes and Agent acknowledgment stamped copies of all other unsecured; indebtedness and liabilities such UCC financing statements, assignment of all such UCC financing statements naming the Agent as assignee of the Borrower (other than Department and acknowledgment stamped copies of Justice all such UCC-1 financing statements evidencing the filing thereof in such jurisdictions. The Borrower shall have executed and other government related payments delivered to the Agent all such UCC-1 financing statements for filing in such jurisdictions as the Agent shall require to perfect its security interest in the Collateral and trade claimsacknowledgment stamped copies of all such UCC-1 financing statements evidencing the filing thereof in such jurisdictions and the payment of all applicable recordation taxes. Upon the occurrence of a Default or Event of Default, which will remain unimpaired)the Agent shall, which shall pursuant to the power of attorney granted to it pursuant to the Security Agreement, be allocated among the applicable creditors entitled to execute all such UCC-1 financing statements, on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction behalf of the applicable creditors’ claimsBorrower, as the Agent deems necessary to perfect its security interest in the Collateral in all jurisdictions in which any Collateral is located and the Borrower shall reimburse the Agent for all costs and expenses, including recordation taxes, if any, incurred by the Agent in connection therewith.
(cf) The Borrower shall have delivered to the aggregate amount Agent all executed original counterparts of obligations under each Lease (s) included in the Existing DIP Credit Agreement on a dollar Collateral for dollar basis that are not repaid in cash on such Loan, certified as such by the effective date Borrower.
(g) The Borrower shall have fully complied with all the terms and conditions of the Reorganization Plan. As used hereinSecurity Documents including but not limited to, delivering to the term “Specified Portion” means an amount equal to Agent all executed copies of the Eligible Leases and Eligible Rental Contracts included in the Collateral for such Loan, certified as such by the Borrower.
(h) The Borrower shall have complied and shall then be in compliance with all of the terms, covenants and conditions of this Agreement.
(i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid The representations and warranties contained in cash Article 3 hereof shall be true and correct on the effective date of the Reorganization Planthereof.
Appears in 1 contract
Conditions to Loans. The obligation of each Lender to make its Loans hereunder the Loan ------------------- is subject to satisfaction the conditions set forth below being satisfied as of the following conditions precedent, except as otherwise agreed between time of the Borrower, making of the Administrative Agent and the Required LendersLoan hereunder:
(a) The Administrative Agent’s or the Lenders’ (representations and warranties contained in this Agreement shall be true and correct in all material respects as applicable) receipt of the following, each properly executed by a Responsible Officer date of the signing Loan Partyas though then made, and each in form Borrower shall have performed all obligations to be performed by it hereunder on or before the date of the Loan hereunder (including, without limitation, the simultaneous consummation of the transactions under the Merger Agreement, the Senior Loan Agreement and substance reasonably satisfactory the Stock and Warrant Purchase Agreement).
(b) There shall be delivered to the Required LendersLender:
(i) executed counterparts An opinion of this AgreementXxxxxx & Xxxx, LLP, counsel to the Guarantee Borrower, and Collateral AgreementBlank Rome Xxxxxxx & XxXxxxxx LLP, counsel to FPK, as applicable, in the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into form attached hereto as of the Closing Date by each party thereto;Exhibit C; ---------
(ii) an original Note Duly completed and executed by originals of the Borrower in favor of each Lender that has requested a Subordinated Note, the Subordinated Guaranty and the Subordination Agreements;
(iii) a Committed Certified copies of all documents evidencing corporate action taken by Borrower with respect to this Agreement and the Subordinated Note to be issued hereunder, the Senior Loan Notice relating Agreement and the Senior Notes issued thereunder, the other Senior Loan Documents, the Subordination Agreements, the Stock and Warrant Purchase Agreement and the Merger Agreement, in form and substance satisfactory to the Loans; andLender and its counsel;
(iv) A certificate executed on behalf of Borrower certifying that the conditions in Section 4.01(a) and (c) through (j), inclusive, have been fully satisfied at the time of the making of the Loan hereunder;
(v) A certificate or certificates, documentssigned by the secretary or an assistant secretary of Borrower, instrumentscertifying as to (A) the names of the respective officers of Borrower authorized to sign this Agreement, agreementsthe Subordination Agreements, legal opinions the Subordinated Note and deliverables the other documents delivered hereunder or thereunder by Borrower, (B) the names of the respective officers of each of Buyer's Subsidiaries authorized to sign the Subordinated Guaranty, and (C) specimens of the true signatures of all such officers, on which Lender may conclusively rely until a revised certificate is similarly so delivered;
(vi) A certificate signed by Borrower's chief executive officer and the chief financial officer regarding the reasonableness of Borrower's projections and the matters set forth on the Closing Checklist attached hereto as Schedule 1in Section 3.08 (Solvency, etc.
(b) With respect to the Chapter 11 Case), there shall have been entered a final order confirming the Reorganization Plan in form and substance satisfactory to Lender and its counsel;
(vii) Copies of all third party and governmental consents, approvals and filings required in connection with the consummation of the transactions contemplated under this Agreement, the Merger Agreement and the other agreements described herein and therein;
(viii) Evidence satisfactory to the Lender of the payment in full of any and all Indebtedness or other related obligations owing or owed by Borrower or any of its Subsidiaries (other than Indebtedness permitted under Section 5.02(a) hereof ), the entire amount of which will be paid contemporaneously with the Closing, and the termination of all agreements evidencing such Indebtedness and the release of all Liens securing any such Indebtedness;
(ix) Evidence of insurance coverage regarding Borrower, satisfactory in terms, amount and scope and provided by insurers all reasonably satisfactory to the LendersLender;
(x) Duly completed and executed copies of the Merger Agreement, the Senior Loan Agreement, the Senior Notes, the other Senior Loan Documents, the Stock and Warrant Purchase Agreement, and the “Effective Date” as set forth fee letter agreement described in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).Section 4.01(i) below;
(cxi) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) Certified copies of the Existing Convertible Notes articles or certificate of incorporation and all other unsecured; indebtedness bylaws of Borrower and liabilities each of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.its Subsidiaries;
Appears in 1 contract
Conditions to Loans. The obligation of each Lender to make its the Loans to the Borrowers, and the obligation of each Issuing Bank to issue any L/C on behalf of the Domestic Borrower or the Sterling Borrower, hereunder is subject to the satisfaction of the following conditions precedentconditions:
Section 6.01. Conditions Precedent to the Effectiveness of this Agreement. On the Closing Date:
(a) all Obligations of all Borrowers incurred at or prior to such date (including, except as otherwise agreed between without limitation, the Borrowerobligation of the Borrowers to pay the Fees due on the Closing Date and to reimburse the reasonable fees and expenses of King & Spalding and Xxxxxxxx Xxxxxxx, special counsel to the Administrative Agent, and any expenses payable to the Arranger, the Administrative Agent and the Lenders as previously agreed with any Borrower), shall have been paid in full,
(b) no action, proceeding, investigation, regulation or legislation shall have been instituted, or to the knowledge of any Borrowers, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of, this Agreement or the consummation of the transactions contemplated hereby, or which, in Administrative Agent's and the Required Lenders:' reasonable discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement;
(ac) The the Borrowers and the Subordinated Noteholders shall have executed and delivered the Subordinated Note Documents, which shall be in form and substance satisfactory to the Agent and Lenders, and the Agent shall have received copies thereof, and the Agent and Lenders shall be satisfied that all conditions precedent to the funding of an additional $8,800,000 in Subordinated Notes thereunder shall have been contemporaneously satisfied or waived;
(d) the Domestic Borrower shall have completed an issuance of equity securities to Sun Capital Holdings LLC, the cash proceeds of which shall be Three Million Dollars ($3,000,000);
(e) the Administrative Agent’s or the Lenders’ (as applicable) receipt of Agent shall have received the following, in form and substance satisfactory in all respects to the Administrative Agent;
(i) duly executed counterparts of this Agreement;
(ii) the duly completed and executed Notes,
(iii) the duly executed counterparts of the Fee Letter;
(iv) the duly executed counterparts of the amendment to the Domestic Borrower Security Agreement, together with UCC financing statements and other applicable documents under the laws of the jurisdictions of each properly Credit Party with respect to the perfection of the Liens granted under the Security Agreements, as requested by the Administrative Agent in order to perfect such Liens, duly executed by a Responsible Officer the Credit Parties;
(v) the duly executed counterparts of the signing Loan amendment to the Parent Guaranty;
(vi) the duly executed counterparts of the Senior Subordination Agreement;
(vii) duly executed copies the Subordinated Note Documents, together with evidence that all conditions precedent to the effectiveness of the Subordinated Note Documents have been contemporaneously satisfied or waived, all transactions contemplated by the Subordinated Note Documents have been consummated;
(viii) the duly executed counterparts of the Junior Subordination Agreement;
(ix) the duly executed counterparts of the Lenders' Warrant;
(x) the duly executed counterparts of the Administrative Agent's Warrant;
(xi) the duly executed counterparts of the Registration Rights Agreement;
(xii) the duly executed counterparts of the Post-Closing Agreement;
(xiii) the duly executed consent of SunTrust Bank pursuant to that certain Master Lease Agreement dated April 8, 1996, by and between Catalina Industries, Inc. and SunTrust Bank;
(xiv) the duly executed consent of SunTrust Bank pursuant to that certain Letter of Credit Agreement dated May 1, 1995, by and between Catalina Industries, Inc. and SunTrust Bank;
(xv) a certificate of the Borrowers in substantially the form of Exhibit F attached hereto and appropriately completed;
(xvi) certificates of the Secretary or Assistant Secretary (or comparable officer) of each Credit Party, attaching and certifying copies of its bylaws or other organizational documents and of the resolutions of its boards of directors, or the equivalent, authorizing the execution, delivery and performance of the Credit Documents to which such Credit Party is a party and certifying the name, title and true signature of each officer of such Credit Party executing the Credit Documents on such Credit Party's behalf;
(xvii) certified copies of the certified articles of incorporation or the equivalent, as the case may be, of each Credit Party, together with certificates of good standing or existence (or in the case of each member of the Sterling Borrower Group and the Holdings Borrower certified copies of its memorandum and articles, board resolutions and certificates of incorporation), as may be available from the jurisdiction of organization of such Credit Party and each other jurisdiction where such Credit Party is required to be qualified to do business as a foreign corporation;
(xviii) a duly executed Borrowing Base Certificate dated as of the Closing Date;
(xix) a duly executed Domestic Revolving Notice of Borrowing and Sterling Revolving Notice of Borrowing, if necessary, and appropriate Sterling Revolving Notices of Continuation and Domestic Revolving Notices of Conversion/Continuation;
(xx) a disbursement letter executed by the Borrowers;
(xxi) certified copies of all consents, Governmental Approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any Requirement of Law or by any Contractual Obligation of each Credit Party, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents or any of the transactions contemplated thereby, and such consents, Governmental Approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(xxii) the favorable legal opinion of (i) Xxxxx Xxxxxxxx, counsel to the Domestic Borrower; (ii) Xxxxxx, Xxxx & Xxxxxxxx LLP and (iii) Xxxxxxxxx Xxxxx & Co., counsel to the Sterling Borrower, the Holdings Borrower and each other Foreign Subsidiary organized in the UK, each in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, addressed to the Administrative Agent and each of the “Effective Date” Lenders, and covering matters as set forth the Lenders and Administrative Agent may request;
(xxiii) a solvency certificate executed by the chief financial officer, treasurer or executive vice president of each Credit Party;
(xxiv) except as otherwise disclosed in public filings made with the Securities and Exchange Commission or otherwise disclosed to the Lenders in writing, there shall not have occurred a material adverse change since September 30, 2000, in the Reorganization Plan shall have occurred prior business, assets, liabilities (actual or contingent), operations, conditions (financial or otherwise) or prospects of the Consolidated Companies taken as a whole or in the facts and information regarding such entities as represented to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).date;
(cxxv) The Borrower shall have issued Convertible Notes in the amount receipt of $125,000,000 in exchange for all other documents and information as Administrative Agent reasonably requests;
(axxvi) the Specified Portion (as hereinafter defined) duly executed acknowledgement and consent of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planeach Guarantor attached hereto.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Catalina Lighting Inc)
Conditions to Loans. The No Lender shall have any obligation of each Lender to make its Loans hereunder is subject to satisfaction of Loan under Section 2.01 until the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt Agent shall have received all of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required LendersAdministrative Agent:
(i) executed counterparts of (A) this Agreement executed by the Borrower, the Administrative Agent and the Lenders listed on the signature pages to this Agreement, and (B) the Guarantee Collateral Agency Joinder Agreement executed by the Borrower and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party theretoAdministrative Agent;
(ii) an original a Note executed by the Borrower in favor of each Lender that has requested requesting a NoteNote reasonably in advance of the Closing Date;
(iii) a Committed Loan Notice relating all UCC financing statements and other documents or instruments necessary or advisable to perfect the Loans; andsecurity interests created by the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Restricted Person as the certificatesAdministrative Agent may reasonably require, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the LendersAdministrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Restricted Person is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the “Effective Date” as conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of each of (A) Xxxxxx & Xxxxxxx LLP, counsel to the Restricted Persons and (B) the General Counsel of ETP, LLC, in each case in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each Lender; and the Borrower hereby requests such counsel to deliver such opinion;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions set forth in Section 4.01(b), (d) and (e) shall be true and correct;
(viii) the Reorganization Plan shall have occurred prior Initial Financial Statements;
(ix) the Solvency Certificate executed by the Chief Financial Officer of the Borrower; and
(x) customary payoff letters and withdrawal letters in respect of the Collateral Agency Agreement in connection with the repayment of indebtedness as described in the definition of Refinancing herein.
(b) After giving effect to or simultaneously with this Agreement, the Transactions to occur on the Closing Date and all conditions precedent the other transactions contemplated hereby, the Borrower shall not have any Indebtedness for borrowed money or preferred Equity Interests other than (i) the Obligations, (ii) the Senior Note Obligations, (iii) the obligations pursuant to the occurrence of such Effective Date shall have been satisfied Revolving Credit Agreement, (or waived iv) Indebtedness incurred under agreements and instruments set forth on the most recent applicable periodic filing made by the Lenders)Borrower with the Securities and Exchange Commission and (v) Indebtedness permitted under Sections 7.01.
(c) The Unless waived by the Administrative Agent, the Borrower shall have issued Convertible Notes in paid all fees, charges and disbursements of counsel to the amount Administrative Agent to the extent invoiced at least two (2) days prior to the Closing Date, plus such additional amounts of $125,000,000 in exchange for such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (aprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) the Specified Portion (as hereinafter defined) Each of the Existing Convertible Notes representations and warranties made by any Restricted Person in or pursuant to the Loan Documents shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects).
(e) No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on the Closing Date.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date, to the extent requested at least five (5) days prior to the Closing Date, all documentation and other unsecured; indebtedness information required by regulatory authorities under applicable “know your customer” and liabilities anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the Borrower (other than Department provisions of Justice Section 9.04, for purposes of determining compliance with the conditions specified in this Section, each Lender that has executed and other government related payments and trade claims, which will remain unimpaired), which delivered this Agreement shall be allocated among 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 applicable creditors on a ratable basis based on Administrative Agent shall have received notice from such Lender prior to the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Conditions to Loans. The obligation obligations of each Lender to make its Loans hereunder is honor a Request for Loan on the Closing Date are subject to the occurrence of the Effective Date and the satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) (i) The Acquisition shall have been, or concurrently with the funding Loans under this Agreement shall be, consummated in accordance with the terms of the Acquisition Agreement and (ii) no provision of the Acquisition Agreement, in the form of the final Acquisition Agreement dated November 20, 2013 and provided to the Arranger on such date, shall have been waived, amended, supplemented or otherwise modified, and no consent or request by the Borrower or any of its Subsidiaries shall have been provided thereunder, in each case which is materially adverse to the interests of the Lenders without the Arranger’s prior written consent.
(b) The Arranger shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for the three most recent years ended on or prior to the date that is 90 days prior to the Closing Date, and unaudited consolidated balance sheets and related statements of income, Shareholders’ Equity and cash flows of the Borrower and its Subsidiaries for each subsequent fiscal quarter ended at least 40 days prior to the Closing Date, in each case prepared in conformity with GAAP; (ii) if, and to the extent required by Rule 3-05 and Article 11 of Regulation S-X, audited consolidated annual financial statements of the Acquired Business, as well as unaudited interim consolidated financial statements (which shall have been reviewed by the independent accountants for the Acquired Business as provided in Statement on Auditing Standards No. 100) prepared in accordance with GAAP; and (iii) customary pro forma financial statements, which in each case meet the requirements of Regulation S-X under the Securities Act of 1933, as amended, and all other accounting rules and regulations of the SEC promulgated thereunder and required to be included in a Registration Statement under such Act on Form S-1; provided, however, if such information is filed by the Borrower with the SEC and publicly available, the conditions set forth in this Section 6.02(b) shall be deemed satisfied.
(c) The Lenders, the Administrative Agent, MSSF and the Arranger shall have received all fees required to be paid, and all expenses required to be paid (including pursuant to the Fee Letter) for which invoices have been presented at least 3 Business Days prior to the Closing Date, on or before the Closing Date.
(d) The Administrative Agent’s or , on behalf of the Lenders’ (as applicable) receipt , shall have received a certificate in the form of Exhibit B hereto from the chief financial officer of the following, each properly executed Borrower demonstrating solvency (on a consolidated basis) of the Borrower and its Subsidiaries as of the Closing Date on a pro forma basis for the Transactions.
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required LendersBorrower certifying that:
(i) executed counterparts there shall exist no Default or Event of Default under this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of Agreement on the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) a breach of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claimsSections 9.01, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal 9.02 or face amount of their respective unsecured claims9.03, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon)a breach of Section 9.08, which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) Section 10.01(e)(i) (to the aggregate amount extent such Default or Event of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid Default results in cash on the effective date acceleration of the Reorganization Plan. As used hereinreferenced Indebtedness), the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.Section 10.01(e)
Appears in 1 contract
Conditions to Loans. The No Lender shall have any obligation of each Lender to make its Loans hereunder is subject to satisfaction of Loan under Section 2.01 until the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt Agent shall have received all of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required LendersAdministrative Agent:
(i) executed counterparts of (A) this AgreementAgreement executed by the Borrower, the Guarantee Administrative Agent and Collateral Agreement, the Pledge Agreement, Lenders listed on the UK Debenture, signature pages to this Agreement and (B) the UK Share Charge 1, Guaranty executed by the Irish Security Documents Guarantors and each other Loan Document to be entered into as of the Closing Date by each party theretoAdministrative Agent;
(ii) an original a Note executed by the Borrower in favor of each Lender that has requested requesting a NoteNote reasonably in advance of the Closing Date;
(iii) a Committed Loan Notice relating to such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Restricted Person as the Loans; and
(iv) the certificatesAdministrative Agent may reasonably require, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the LendersAdministrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Restricted Person is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the “Effective Date” as set forth conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (A) Xxxxxx & Xxxxxxx LLP, counsel to the Restricted Persons and (B) the General Counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Reorganization Plan shall have occurred prior Administrative Agent, addressed to or the Administrative Agent and each Lender; and the Borrower hereby requests such counsel to deliver such opinion;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that (A) the Acquisition and the other transactions contemplated thereunder are being consummated simultaneously with the funding of the Loans on the Closing Date Date, (B) there has been no event, change, effect, development, condition or occurrence since December 31, 2010 that has had or would reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect and (C) attached thereto are true and complete copies of the executed Merger Agreement, and all conditions precedent exhibits and schedules thereto;
(vii) the Initial Borrower Financial Statements; and
(viii) the Solvency Certificate executed by the Chief Financial Officer of the Borrower.
(b) The Borrower shall have delivered a pro forma Consolidated balance sheet and related pro forma Consolidated statements of income and cash flows of the Borrower as of and for the 12 month period ending on the last day of the most recently completed four Fiscal Quarter period for which financial statements have been delivered pursuant to Section 4.01(a)(viii), prepared after giving effect to this Agreement and the occurrence Acquisition as if they had occurred as of the date of such Effective Date shall have been satisfied Consolidated balance sheet (in the case of such balance sheet) or waived by at the Lendersbeginning of such period (in the case of such other financial statements).
(c) The Merger Agreement shall not have been amended or modified since July 19, 2011, and that no condition therein shall have been waived or any consent shall have been granted since July 19, 2011 in any respect that is material and adverse to the Lenders without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or delayed).
(d) After giving effect to this Agreement, the Acquisition and the other transactions contemplated hereby and thereby, the Borrower shall not have issued Convertible Notes in the amount of $125,000,000 in exchange any Indebtedness for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (borrowed money or preferred Equity Interests other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus the Obligations, (ii) the aggregate amount of obligations under Permanent Debt Financing, if any, (iii) the Existing DIP Senior Note Indebtedness and any Senior Note Refinancing Indebtedness, (iv) the Restructuring Preferred Units, (v) the Revolving Credit Agreement that are not repaid in cash and any amendment, modification, refinancing, restatement or replacement thereof, (vi) Indebtedness incurred under agreements and instruments set forth on the effective date most recent applicable periodic filing made by the Borrower with the Securities and Exchange Commission, and (vii) Indebtedness permitted under Sections 7.01(b) and (h).
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least two (2) days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(f) The Lenders shall have received at least five (5) Business Days prior to the Closing Date, to the extent requested at least seven (7) days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. Without limiting the generality of the Reorganization Planprovisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section, each Lender that has executed and delivered 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
Samples: Senior Bridge Term Loan Credit Agreement (Energy Transfer Equity, L.P.)
Conditions to Loans. The obligation of each Lender to make its Loans hereunder any Loan is subject to the accuracy of all representations and warranties of Borrowers and Guarantor in this Agreement or any other Credit Paper on the date thereof, to the performance by Borrowers and Guarantor of their respective obligations under the Credit Papers and to the satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:
conditions: (i) executed counterparts Lender shall have received, no later than 11:00 AM, Houston time on the Business Day of this Agreementthe requested Loan telephonic notice of the amount and date and other pertinent information relating to the requested Loan, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document such notice to be entered into as confirmed in writing prior to the requested Loan by delivery to Lender of the Closing Date by each party thereto;
a duly completed and executed Request for Credit; (ii) an original Note executed by prior to the date thereof, there shall not have occurred, in the sole opinion of Lender, any material adverse change in the assets, liabilities, financial condition, business or affairs of any Borrower in favor of each Lender that has requested a Note;
or Guarantor; (iii) no Default or Event of Default shall have occurred and be continuing or will occur as a Committed Loan Notice relating to result of, or exist for any reason after, the Loansrequested Loan; and
(iv) the certificatesmaking of the Loan shall not be prohibited by, documentsor subject Lender to any penalty (however denominated) under, instrumentsany applicable Legal Requirement; (v) all of the Credit Papers have been executed and delivered, agreementsand shall be valid, legal opinions enforceable and deliverables set forth on in full force and effect; (vi) all fees and expenses owed to Lender under any of the Closing Checklist attached hereto Credit Papers as Schedule 1.
(b) With respect to of the Chapter 11 Case, there date thereof shall have been entered a final order confirming the Reorganization Plan paid in form and substance full; (vii) Lender shall have received evidence reasonably satisfactory to Lender as to the Lenders, perfection and priority of the Liens created by the Security Documents; and (viii) Lender shall have received such other documents as it may reasonably require. Delivery of any Request for Credit to Lender shall constitute a representation by Borrowers that the representations and warranties made by Borrowers under this Agreement and the “Effective Date” other Credit Papers are true and correct as set forth in of the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence date of delivery of such Effective Date shall have been satisfied (or waived by the Lenders)Request for Credit.
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Samples: Loan Agreement (American Business Financial Services Inc /De/)
Conditions to Loans. The No Lender shall have any obligation of each Lender to make its Loans hereunder is subject to satisfaction of Loan under Section 2.01 until the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt Agent shall have received all of the following, each properly executed by dated the Closing Date (or, in the case of certificates of governmental officials, a Responsible Officer of recent date before the signing Loan Party, Closing Date) and each in form and substance reasonably satisfactory to the Required LendersAdministrative Agent:
(i) executed counterparts of this Agreement, Agreement executed by the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents Borrower and each other Loan Document to be entered into as of the Closing Date by each party theretoLender;
(ii) an original the Collateral Agency Agreement executed by the parties thereto;
(iii) the Pledge and Security Agreement executed by the parties thereto;
(iv) each of the ETP Retail Holdings Guaranty and the Subsidiary Guaranty, each executed by the parties thereto;
(v) a Note executed by the Borrower in favor of each Lender that has requested requesting a NoteNote reasonably in advance of the Closing Date;
(iiivi) such certificate of resolutions or other action, incumbency certificate and/or other certificates of Responsible Officers of the Borrower and each Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower or such Guarantor is a party;
(vii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor are duly organized or formed, and that the Borrower and each Guarantor are validly existing, in good standing and qualified to engage in business in its jurisdiction of formation;
(viii) a Committed Loan Notice relating customary opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loans; and
(iv) Borrower and the certificatesGuarantors, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to Administrative Agent, addressed to the LendersAdministrative Agent and each Lender;
(ix) a certificate of a Responsible Officer of the Borrower and each Guarantor either (A) certifying that all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the Guarantors and the validity against the Borrower and the Guarantors of the Loan Documents to which they are a party, and such consents, licenses and approvals are in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the “Effective Date” as set forth Borrower certifying (A) that the conditions specified in Sections 4.01(c) have been satisfied, and (B) that there does not exist any pending or threatened litigation, proceeding under any Debtor Relief Law, or other proceeding in respect of the Borrowing or the Loan Parties that could be reasonably expected to have, either individually or in the Reorganization Plan shall have occurred prior to or simultaneously aggregate, a Material Adverse Effect;
(xi) the Initial Financial Statements;
(xii) the Pro Forma Financial Statements; and
(xiii) the Solvency Certificate executed by the Chief Executive Officer of the Borrower.
(b) The Drop Down shall, substantially concurrently with the Closing Date funding of the Loans, be consummated in accordance with the terms of the Contribution Agreement, without giving effect to any modification, consent or waiver thereto that is material and all conditions precedent adverse to the occurrence interests of such Effective Date shall have been satisfied the Arrangers or Lenders without the prior written consent of a majority of the Arrangers (not to be unreasonably withheld or waived by the Lendersdelayed).
(c) The Borrower shall have issued Convertible Notes in received net proceeds of approximately $750,000,000 from the amount of $125,000,000 in exchange for (a) PIPE Offering prior to the Specified Portion (as hereinafter defined) funding of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities Loans.
(d) The Borrower shall have obtained an amendment to the Revolving Credit Agreement amending the provisions of the Revolving Credit Agreement to the extent necessary to permit the Transactions.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least two (other than Department 2) days prior to the Closing Date, plus such additional amounts of Justice such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(f) The Specified Representations shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects).
(g) The Lenders shall have received at least five (5) days prior to the Closing Date, to the extent requested at least seven (7) days prior to the Closing Date, all documentation and other government related payments information required by regulatory authorities under applicable “know your customer” and trade claimsanti-money laundering rules and regulations, which will remain unimpaired), which shall be allocated among including the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization PlanUSA PATRIOT Act.
Appears in 1 contract
Conditions to Loans. The obligation of each SECTION 5.1. Documents to be Delivered to Lender Prior to make its Loans hereunder is subject First Loan. ----------------------------------------------------------------------- Prior to satisfaction the first Advance, Borrower shall deliver or caused to be delivered to Lender of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:Lender):
(ia) This Agreement duly executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and by each other Loan Document to be entered into as of the Closing Date by each party theretoparties hereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 CaseThe Note, there shall have been entered a final order confirming the Reorganization Plan in form duly and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).properly executed;
(c) The Borrower shall have issued Convertible Notes in Blanket Assignment of Chattel Paper and Motor Vehicle Titles duly and properly executed;
(d) The Trial Balance listing all open Accounts;
(e) A copy of Borrower's incorporation documents certified as of a recent date by the amount secretary of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) state of the Existing Convertible Notes state of incorporation of Borrower; and bylaws, certified as of a recent date by Borrower's corporate secretary;
(f) Certificates of good standing in Borrower's state of incorporation and in each jurisdiction in which Borrower is qualified to do business;
(g) A certified copy of resolutions of Borrower's Board of Directors or other governing body, authorizing the execution, delivery and performance of the Note and this Agreement, and all other unsecureddocuments and instruments to be executed in connection with the Note and this Agreement; indebtedness and liabilities the pledge of the Collateral to Lender as security for the Loans made hereunder; the borrowing evidenced by the Note, and designating the appropriate officers to execute and deliver the Note, this Agreement and all other documents and instruments to be executed in connection therewith;
(h) Certificates of Borrower's corporate secretary (or other appropriate officer) as to the incumbency and signatures of officers of Borrower (other than Department of Justice signing the Note and this Agreement and other government related payments documents and trade claims, which will remain unimpaired), which shall instruments to be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to delivered pursuant hereto;
(i) $102,000,000 minus The written opinion of counsel to Borrower as addressed to Lender;
(j) A certificate, dated the date of this Agreement, signed by the President or Vice President of Borrower to the effect that to the best of that officer's knowledge (i) representations and warranties set forth herein are true and correct as of the date hereof in all material respects and (ii) no Event of Default hereunder, or no event which, with the aggregate amount giving of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date notice or passage of time or both, could become such an Event of Default, has occurred or could occur, Borrower's corporate seal being affixed to such certificate and Borrower's corporate Secretary attesting thereto;
(k) Documents required by Section 3.3 hereof;
(l) The Subordination Agreements duly executed by each holder of Subordinated Debt, together with copies of the Reorganization Plandocuments, instruments and writings evidencing such Subordinated Debt;
(m) Completion of Lender's due diligence including collateral audit, with results satisfactory to Lender;
(n) Evidence of payoff of prior indebtedness and satisfaction of liens;
(o) Completed Availability and Compliance Certificate;
(p) Evidence of property and casualty insurance;
(q) Completed Uniform Commercial Code liens, federal and state tax lien and judgment lien searches;
(r) Execution and delivery by landlord and/or mortgagee of waivers for all properties that Borrower conducts business; and
(s) All other documents that Lender may request in its sole discretion.
Appears in 1 contract
Conditions to Loans. The obligation of each Lender (a) As conditions precedent to make its Loans hereunder is subject to satisfaction the making of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersinitial Loan hereunder:
(aI) The Administrative Agent’s or Borrower shall have:
(i) entered into an amendment to the Lenders’ Note Purchase Agreement, dated as of November 6, 2000, pursuant to which the Borrower issued and there are outstanding $8,919,555.56 aggregate principal amount of Senior Discount Notes (as applicablethe "Discount Notes") receipt of to the followingNoteholders named therein ("Noteholders"), each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to Lender, pursuant to which amendment the Required LendersNoteholders shall have unanimously consented and agreed to the incurrence of the Loans and the execution, delivery and performance of this Agreement, the Note, the Security Agreement and the Guarantee, and the extension of the stated maturity date of the Discount Notes to March 31, 2002;
(ii) executed and delivered the Note and the Security Agreement to Lender, and executed and filed a Form UCC-1 financing statement in the office of the Secretary of State of the State of Delaware (and such other public filing offices as Lender shall have specified);
(iii) implemented a plan for repayment of Borrower's outstanding accounts payable indebtedness, which plan shall be in form and substance satisfactory to Lender;
(iv) delivered to Lender a report satisfactory to Lender listing the results of UCC lien searches in the States of California, Colorado, Delaware and New York;
(v) delivered to Lender certificates of public officials evidencing the good standing of Borrower in the State of Delaware and Borrower's qualification to do business in the States of California, Colorado and New York;
(vi) [Reserved.]
(vii) delivered to Lender evidence satisfactory to Lender that valid policies of insurance covering the Collateral are in full force and effect, in each case naming the Lender as insured or loss payee, as its interests may appear; and
(viii) executed and delivered a certificate of an authorized officer of Borrower, dated the date of the initial Loan, to the effects that (x) all conditions precedent to the making of the initial Loan hereunder have been satisfied, (y) the representations and warranties of Borrower set forth in Section 6 hereof are true and correct as of the date of such Loan, and (z) that no Event of Default (as defined below) has occurred and is continuing; and
(II) Guarantor shall have:
(i) executed counterparts of this Agreement, and delivered to Lender the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto;Guarantee; and
(ii) entered into an original Note executed by agreement with Lender, in form and substance satisfactory to Lender, pursuant to which Guarantor shall undertake (A) to issue to Lender (or its designee), as promptly as practicable following the Borrower in favor effective date of each Lender the initial Loan hereunder, 1,000,000 shares of the Class A Common Stock of Guarantor, and (B) to prepare and file with the Securities and Exchange Commission not later than December 31, 2001 a registration statement under the Securities Act of 1933, as amended, covering such shares; provided, however, that has requested a Note;
(iii) a Committed Loan Notice relating such issuance shall --------- -------- be subject to the Loansfollowing: (x) Lender shall have advanced to Borrower at least $1,000,000 of Loans hereunder; and
and (ivy) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth such shares shall have been approved for listing on the Closing Checklist attached hereto as Schedule 1American Stock Exchange.
(b) With respect As a condition to the Chapter 11 Casemaking of each subsequent Loan hereunder, there Borrower shall have been entered delivered to Lender (i) a final order confirming the Reorganization Plan in form and substance reasonably satisfactory written request for such Loan at least two (2) days prior to the Lendersrequested disbursement date, and (ii) a certificate of an authorized officer of Borrower, dated the “Effective Date” as date of such request, to the effect that (x) since the date of the preceding borrowing hereunder, no event has occurred, and no claim, litigation or assessment has been instituted against Borrower or Guarantor, which is reasonably likely to have a material adverse effect on the business, assets or financial condition of Borrower or Guarantor; (y) the representations and warranties of Borrower set forth in Section 6 hereof are true and correct as of the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence date of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claimsrequest, and (cz) the aggregate amount no Event of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid Default has occurred and is continuing, and no other event, which with notice or lapse of time or both would result in cash on the effective date an Event of the Reorganization Plan. As used hereinDefault, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planhas occurred and is continuing.
Appears in 1 contract
Samples: Loan Agreement (Ampex Corp /De/)
Conditions to Loans. The obligation of each Lender to make its Loans hereunder is subject to satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents Novelion Subordination Agreement and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there The Administrative Agent and each Lender shall have been entered a final order confirming received the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders)Initial Budget.
(c) The Borrower shall have issued Convertible Notes in paid all accrued and unpaid costs, fees and expenses (including applicable Attorney Costs (solely with respect to Xxxxxx & Xxxxxxx LLP, the amount of $125,000,000 its invoice presented for closing on account of work undertaken in exchange connection with this Agreement, the other Loan Documents and the transactions contemplated hereby; provided that, for (athe avoidance of doubt, such limitation shall not apply to amounts owing on account of work undertaken by Xxxxxx & Xxxxxxx LLP in connection with prior negotiations among the parties hereto in respect of a restructuring and financing not contemplated hereby) and the Specified Portion (as hereinafter defined) reasonable and documented out-of-pocket fees and expenses of the Existing Convertible Notes Financial Advisor not to exceed the cap separately agreed in the fee letter between the Financial Advisor and all other unsecured; indebtedness and liabilities the Borrower dated as of the Borrower (other than Department of Justice Closing Date, the reasonable and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued documented fees and interest thereon), which expenses of Xxxxxxx & Xxxxxxx LLP not to exceed $20,000 and any other advisors to the Administrative Agent and the Lenders) and any other compensation required to be paid to the Administrative Agent and the Lenders on or prior to the Closing Date shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planhave been received.
Appears in 1 contract
Samples: Bridge Credit Agreement (Novelion Therapeutics Inc.)
Conditions to Loans. The obligation of each Lender (a) As conditions precedent to make its Loans hereunder is subject to satisfaction the initial disbursement of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required LendersLoans hereunder:
(ai) The Administrative Each Borrower shall have delivered or shall have had delivered to the Agent’s or , in form and substance and in quantities reasonably satisfactory to the Lenders’ (as applicable) receipt Agent and its counsel, each of the following:
(A) this Agreement, each properly duly executed by a Responsible Officer the parties hereto;
(B) each of the signing Loan PartySecurity Agreements and the Power of Attorney for each Borrower, duly executed (and notarized where required) by the parties thereto (which Powers of Attorney shall be "protocolized" under the laws of Puerto Rico by counsel to the Borrowers, and filed with the Registry of Powers of Attorneys and Willx xx local counsel to the Agent promptly after the closing contemplated hereunder);
(C) a duly executed Note for each Lender;
(D) duly executed documents, instruments, agreements and financing statements, properly executed, deemed necessary or appropriate by the Agent, in its reasonable discretion, to create in favor of the Lenders a valid and perfected, first priority security interest in and lien upon the Collateral;
(E) a certified copy of resolutions of the Board of Directors of each of the Borrowers approving the execution, delivery and performance of all Loan Documents required to be delivered by such parties hereunder and the transactions contemplated therein;
(F) a certificate of the Secretary or an Assistant Secretary of each of the Borrowers certifying the names and true signatures of the officers of such parties authorized to sign the Loan Documents required to be executed and delivered by such parties hereunder, in each case dated the date of this Agreement;
(G) an opinion of counsel for the Borrowers in the form of Exhibit C and covering such other matters as the Agent may reasonably request, in each case dated the date of this Agreement;
(H) a copy of the Certificate of Incorporation or other equivalent document available in the applicable jurisdiction of the Borrowers certified by the appropriate officer of the jurisdiction of such party's incorporation as of a recent date;
(I) a copy of the Bylaws of the Borrowers, certified by the Secretary or an Assistant Secretary or other appropriate officer of each such party as of the date of this Agreement as being accurate and complete;
(J) a certificate of an executive officer of each of the Borrowers, in the form of Exhibits D-1 and D-2, respectively, dated the date of this Agreement;
(K) duly executed acknowledgment agreements from each of FNMA and FHLMC relating to the validity of the Secured Parties' security interest in the Pledged Servicing Portfolio;
(L) evidence of (I) the acceptance by the Process Agent of its appointment pursuant to Section 8.7 and (II) payment of all fees required by the Process Agent for serving in such capacity;
(M) a copy of the letter delivered to the parties to the contracts pledged and assigned to the Secured Parties pursuant to the Loan Documents (together with evidence of such delivery) notifying such parties of the security interests in such contracts and the contract rights related thereto granted to the Secured Parties pursuant to the Loan Documents, which letter shall be in substantially the form of Attachment 2 to the Security Agreement;
(N) a schedule of servicing rights included in the Pledged Servicing Portfolio, including the owner of such servicing rights and otherwise in form and substance acceptable to the Agent;
(O) a duly executed Intercreditor Agreement; and
(P) a waiver under the Warehouse Credit Agreement duly executed by each of the Warehouse Lenders.
(ii) All acts and conditions (including the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or registrations) required to be done and performed and to have happened prior to the execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations, enforceable in accordance with their respective terms, shall have been done and performed and shall have happened in due and strict compliance with all applicable laws or if any of such have not been done, performed or happened, such has been expressly disclosed to the Agent and waived by all of the Lenders in writing.
(iii) All documentation, including documentation for corporate and legal proceedings in connection with the transactions contemplated by the Loan Documents, shall be reasonably satisfactory in form and substance to the Agent and its counsel.
(iv) The Borrowers shall have paid all Fees required to have been paid under the Loan Documents prior to or on the date of this Agreement.
(b) As additional conditions precedent to the disbursement of all Loans (including the initial Loans hereunder), at and as of the date of such disbursement:
(i) The representations and warranties of the Borrowers contained in the Loan Documents shall be accurate and complete in all material respects on and as of the date of such disbursement as if made on and as of such date.
(ii) No Potential Default or Event of Default shall have occurred and be continuing.
(iii) Following the funding of the requested Loan, the aggregate principal amount of Loans outstanding hereunder shall not exceed the limitations set forth in Sections 2.1 and 2.8.
(iv) Since December 31, 1997, no material adverse change shall have occurred in the business, financial condition or results of operations of DFC and its Subsidiaries, taken as a whole.
(v) The Agent shall have received such other documents or legal opinions as the Agent or any Lender or special counsel to the Agent may reasonably request, all in form and substance reasonably satisfactory to the Required Lenders:
Agent. By delivering a Notice of Borrowing to the Agent hereunder for any Loan, the Borrowers shall be deemed to have represented and warranted the accuracy and completeness of the statements set forth in subsections (i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into through (iv) above as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence date of such Effective Date shall have been satisfied (or waived by the Lenders)Loan.
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Conditions to Loans. The obligation of each Lender to make its Loans hereunder is subject to satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents Novelion Subordination Agreement and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there The Administrative Agent and each Lender shall have been entered a final order confirming received the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders)Initial Budget.
(c) The Borrower shall have issued Convertible Notes in paid all accrued and unpaid costs, fees and expenses (including applicable Attorney Costs (solely with respect to Xxxxxx & Xxxxxxx LLP, the amount of $125,000,000 its invoice presented for closing on account of work undertaken in exchange connection with this Agreement, the other Loan Documents and the transactions contemplated hereby; provided that, for (athe avoidance of doubt, such limitation shall not apply to amounts owing on account of work undertaken by Xxxxxx & Xxxxxxx LLP in connection with prior negotiations among the parties hereto in respect of a restructuring and financing not contemplated hereby) and the Specified Portion (as hereinafter defined) reasonable and documented out-of-pocket fees and expenses of the Existing Convertible Notes Financial Advisor not to exceed the cap separately agreed in the fee letter between the Financial Advisor and the Borrower dated as of the Closing Date, the reasonable and documented fees and expenses of Xxxxxxx & Xxxxxxx LLP not to exceed $20,000 and any other advisors to the Administrative Agent and the Lenders) and any other compensation required to be paid to the Administrative Agent and the Lenders on or prior to the Closing Date shall have been received.
(d) The Lenders shall have received on or prior to the Closing Date all documentation and other unsecured; indebtedness information required by regulatory authorities under applicable “know your customer” and liabilities anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower (other than Department in substantially the form of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis Exhibit F certifying that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date (before and after giving effect to the incurrence of the Loans); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (ii) after giving effect to the aggregate amount amendments or consents relating to the Novelion Intercompany Loans and the Novelion Shareholder Loans as of obligations under the Existing DIP Credit Agreement Closing Date, no Default or Event of Default shall exist, or would result from the incurrence of the Loans or from the application of the proceeds therefrom.
(f) Since December 31, 2017, there has been no event or circumstance, either individually or in the aggregate, that are not repaid has had or would reasonably be expected to have a Material Adverse Effect, except for (i) such events set forth in cash any public filings of Novelion prior to the Closing Date, (ii) any matters disclosed on the effective date disclosure schedules to the Loan Documents as of the Reorganization PlanClosing Date and (iii) any other matters disclosed in writing to the Lenders or its Financial Advisor prior to the Closing Date.
(g) The Lenders shall have received a customary payoff letter and lien termination statements with respect to the Novelion Shareholder Loans and upon funding of the New Money Loans on the Closing Date, the Novelion Shareholder Loans (and all obligations thereunder) shall have been paid in full and all liens securing such debt shall have been terminated. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Bridge Credit Agreement (Novelion Therapeutics Inc.)
Conditions to Loans. The obligation of each Lender to make its Loans hereunder Loan is subject to satisfaction the Agent's receipt of the following conditions precedent(or, except as otherwise agreed between the Borrowerwhere applicable, the Administrative Agent and the Required Lenders:
(aoccurrence of) The Administrative Agent’s or the Lenders’ (as applicable) receipt each of the following, in sufficient number for each properly executed by a Responsible Officer of the signing Loan Party, Lenders and each in form and substance reasonably satisfactory to the Required LendersAgent:
(a) this Agreement, with all exhibits and schedules thereto, duly executed and delivered as applicable by each of the parties hereto, and a Note for each Lender, in the amount of such Lender's Commitment, each duly executed by the Borrower and dated as of the date of this Agreement;
(b) each Security Document, with all exhibits and schedules thereto, duly executed and delivered by each of the parties thereto and dated as of the date of this Agreement (except that the original Mortgage shall be delivered to the Title Company for filing, and true and correct copies of the executed Mortgage shall be delivered to the Agent), and the following:
(i) proper financing statements, duly filed on the Closing Date in the offices identified on Schedule 5.15 or in any other jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority (subject only to Permitted Liens) liens and security interests created under the Security Documents, covering the Collateral described in the Security Documents,
(ii) evidence that originals of the Mortgage on the Refinery have been delivered to the Title Company with instructions for recording in the Real Property Records of Xxxxxx County, Texas,
(iii) copies of the Borrower's 1999 survey of the Refinery, a survey reliance letter executed counterparts by the Borrower's surveyor who prepared such survey, and Borrower's Affidavit as to Prior Survey in form satisfactory to the Title Company,
(iv) evidence that the Title Company is prepared, upon recording the Mortgage, to issue a Mortgagee Policy of this AgreementTitle Insurance (Form T-2) in favor of Agent, in a policy amount of $45,388,000, in conformance with the Guarantee Title Commitment, covering and Collateral Agreementdescribing the real property components of the Refinery and the improvements affixed thereto that by law constitute a portion of such real property, and containing the Pledge Agreementfollowing modifications and/or endorsements:
(A) The standard exception for "Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments, or protrusions or any overlapping of improvements shall be revised to read "Shortages in area only";
(B) The standard exception for taxes shall be revised to read "Standby fees, taxes and assessments by an taxing authority for the UK Debentureyear 2002;
(C) The exception for liens and leases shall be deleted;
(D) The policy shall contain the T-14 (First Loss) Endorsement;
(E) The policy shall contain the T-15 (Last Dollar) Endorsement;
(F) The policy shall contain the T-19 (Restrictions, Encroachments and Minerals) Endorsement;
(G) The policy shall contain the UK Share Charge 1, T-33 (Adjustable Mortgage Loan) Endorsement;
(H) The policy shall contain the Irish T-35 (Revolving Credit) Endorsement; and
(v) evidence that all other actions that the Agent may deem necessary or desirable have been taken or are the subject of arrangements reasonably satisfactory to the Agent for completion concurrently with or promptly after the Closing Date in order (A) to perfect and protect the first priority Liens created under the Security Documents (including, without limitation, receipt of duly executed payoff letters, and UCC-3 termination statements) and (B) to conclude that Acceptable Security Interests will have been created on all Collateral, upon the recording of the Mortgage and the filing of the financing statements;
(c) a Secretary's Certificate, dated the Closing Date, in the form of Exhibit 4.01(c), certifying as to (i) attached copies of the Charter Documents, as amended, modified and supplemented and in effect on the Closing Date, of the Borrower, (ii) resolutions evidencing the Partnership Governance Committee Action approving and authorizing the applicable Loan Documents and the Borrowings and issuances of the Letters of Credit hereunder, and (iii) the names and true signatures of the officers of the Borrower authorized to sign each other Loan Document Document;
(d) a copy of the Certificate of Limited Partnership of the Borrower, certified as of a Current Date by the Secretary of State of the State of Delaware;
(e) a certificate of existence and good standing with respect to be entered into the Borrower, issued as of a Current Date by the Secretary of State of the State of Delaware;
(f) certificates, issued by the Secretaries of State of the States of Alabama and Texas to the effect that the Borrower is registered as a foreign limited partnership under the name "LYONDELL-CITGO Refining LP" in those States, and a certificate issued as of a Current Date by each such Secretary of State which certifies that the Borrower has not filed a certificate of cancellation of such registration;
(g) opinions of counsel for the Borrower, dated the Closing Date, in the forms of Exhibits 4.01(g)-1 and 4.01(g)-2;
(h) a certificate of a Responsible Officer, dated the Closing Date, in the form of Exhibit 4.01(h) to the effect, among others, that (i) the representations and warranties set forth in Article V are true and correct in all material respects as of the Closing Date by each party thereto(unless made as of a specific date as set forth therein) and (ii) no Default exists or would exist as a result of making a Loan on the Closing Date;
(iii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to the Loans; and
(iv) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan evidence in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) Agent of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities maintenance of the Borrower (other than Department of Justice property and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.business interruption insurance required by Section
Appears in 1 contract
Conditions to Loans. The obligation of each the Lender to make its Loans hereunder the Loan is subject to satisfaction the determination by the Lender, in its sole and absolute discretion, that each of the following conditions precedent, except as otherwise agreed between has been fulfilled prior to the Borrower, the Administrative Agent and the Required Lendersmaking of such Loan:
(a) The Administrative Agent’s this Agreement shall have been duly executed and delivered by the Borrower and each Guarantor;
(b) the Lender shall have received any requested duly executed Note;
(c) the Security Agreement shall have been duly executed and delivered by each Loan Party that is to be a party thereto, together with documents and instruments to be recorded or filed that the Lenders’ Lender may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement;
(as applicabled) receipt the Collateral Agent and Lender shall have received all fees and expenses required to be paid, under Section 8.07 to the extent invoiced two (2) Business Days prior to the Closing Date;
(e) the Lender shall have received a certificate of the following, each properly executed by a Responsible Officer of the signing Borrower dated as of the Closing Date certifying (a) each Loan Document Representation and Warranty shall be true and correct at and as of the time the Loan is to be made, (b) that no Default shall have occurred and be continuing, (c) that the Exchange Offer and consent solicitation for the Senior Notes shall have been consummated or, substantially simultaneously with the borrowing hereunder, shall be consummated in accordance with the terms of the Offering Memorandum and the Support Agreement, (d) that Amendment No. 5 Effective Date (as defined under Amendment No. 5 and Waiver to the First Lien Credit Agreement) shall have occurred, or substantially simultaneously with the borrowing hereunder, shall have occurred in accordance with the terms of Amendment No. 5 and Waiver to the First Lien Credit Agreement and (e) that all other conditions hereunder and contemplated under the Exchange Offer, the Offering Memorandum and the Support Agreement have been satisfied.
(f) the Lender shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a Responsible Officer of each Loan Party dated as of the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings thereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the incumbency and specimen signature of each officer executing any Loan Document on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of a Responsible Officer executing the certificate pursuant to clause (ii) above;
(g) the Lender shall have received perfection certificate dated as of the Closing Date;
(h) the Lender shall have received a legal opinion of (i) Akin Gump Xxxxxxx Xxxxx & Xxxx LLP, counsel to the Loan Parties, (ii) Holland & Knight LLP, Virginia counsel to the Loan Parties, (iii) Xxxxxxxxx Xxxxx, P.C., Nevada counsel to the Loan Parties, and (iv) Xxxxxxxxx & Xxxxx, P.C., Alabama counsel to the Loan Parties, in each case, as to such matters as the Lender may reasonably request;
(i) the Collateral Agent shall have received evidence of the insurance coverage required by the Collateral Documents, with such endorsements as to the named insureds or loss payees thereunder as the Collateral Agent may request and providing that each such policy may be terminated or canceled (by the insurer or the insured thereunder) only upon 30 days’ prior written notice to the Collateral Agent and each such named insured or loss payee;
(j) the Lender shall have received a certificate in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this AgreementLender, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into dated as of the Closing Date and signed by the Chief Financial Officer of Holdings and the Borrower, certifying that Holdings, the Borrower and their Subsidiaries, on a consolidated basis after giving effect to the transactions contemplated on the Closing Date, are Solvent as of the Closing Date;
(k) The Intercreditor Agreement shall have been duly executed and delivered by each party of the parties thereto;
(iil) an original Note executed by Since January 1, 2016 there shall not have occurred a Material Adverse Effect or any changes, events, circumstances, occurrences, effects or developments that would reasonably be likely to have, individually or in the Borrower aggregate, a Material Adverse Effect.
(m) No more than $45,500,000 (or such other amount acceptable to the Lender) of Senior Notes shall be outstanding as of the Closing Date and the Exchange Offer shall have been consummated or, substantially simultaneously with the borrowing of the Loans, shall be consummated in favor accordance with the terms of each Lender that has requested a Notethe Offering Memorandum and the Support Agreement;
(iiin) a Committed each Loan Notice relating Document Representation and Warranty shall be true and correct at and as of the time the Loan is to be made;
(o) no Default shall have occurred and be continuing at the Loanstime the Loan is to be made or would result from the making of the Loan or from the application of the proceeds thereof; and
(ivp) the certificates, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect Loan will not contravene any Applicable Law applicable to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders).
(c) Lender. The Borrower shall be deemed to have issued Convertible Notes in represented and warranted to the amount of $125,000,000 in exchange for (a) Lender and Collateral Agent at the Specified Portion (as hereinafter defined) time of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities making of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among Loan that the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Planconditions specified above have been fulfilled.
Appears in 1 contract
Samples: Third Lien Credit Agreement (Delta Tucker Holdings, Inc.)
Conditions to Loans. The obligation of each the Lender to make its Loans hereunder is each Revolving Credit Loan shall be subject to the fulfillment (to the satisfaction of the Lender) of the following conditions precedentprecedent which, except as otherwise agreed between in the Borrowercase of the initial Loan, shall be in addition to the Administrative Agent and the Required Lendersother conditions set forth in Section 4.1:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt of the following, each properly executed by Lender shall have received a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required Lenders:
(i) executed counterparts of this Agreement, the Guarantee and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party thereto;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested a Note;
(iii) a Committed Loan Notice relating to such Loan and a duly executed Security Agreement Supplement with respect to the Loans; and
(iv) applicable Leases and Equipment included in the certificatesCollateral for such Loan, documentstogether, instrumentsto the extent required pursuant to Section 2.3, agreementswith the Borrowing Base Report, legal opinions and deliverables set forth on certified by the Closing Checklist attached hereto as Schedule 1President or Chief Financial Officer or Controller of the Borrower, which shall establish to the satisfaction of the Lender that the Borrowing Base is equal to or greater than the outstanding principal amount of the Loan after giving effect to the Loan proposed to be made.
(b) With respect to the Chapter 11 Case, there The Borrower shall have been entered perfected its interest in the Equipment against each lessee of Equipment which is leasing Equipment with an aggregate Original Cost of $10,000 or more (whether or not under one or more Leases) in each jurisdiction where such Lessee shall have $10,000 or more in aggregate Original Cost of Equipment subject to Leases, in each case by filing of a final order confirming UCC financing statement naming the Reorganization Plan in form and substance reasonably satisfactory to the Lenders, Borrower as secured party/lessor and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence lessee of such Effective Date Equipment as debtor/lessee. To the extent any Security Document contains any provision which is expressly inconsistent with this Section 4.2(b), the provisions of this Section 4.2(b) shall have been satisfied (or waived by the Lenders)control.
(c) The Borrower shall have issued Convertible Notes delivered to the Lender a certificate of an officer acknowledging that the file containing each executed original of each Lease included in the amount Collateral for such Loan shall have been stamped with the legend required by Section 6.8 and copies of $125,000,000 such documentation relating to the Leases and Equipment being financed by such Loan as the Lender shall request.
(d) The representations and warranties contained in exchange for (a) the Specified Portion (as hereinafter defined) Loan Documents shall be true and correct on the date of the Existing Convertible Notes making of such Loan as if restated at and as of the date thereof, the Borrower shall be in compliance with all other unsecured; indebtedness of the covenants to be complied with by the Borrower and liabilities no Default or Event of Default shall have occurred.
(e) No material adverse change shall have occurred in the operations, assets, financial condition or prospects of the Borrower since December 31, 1997.
(other than Department f) The Lender shall have received a compliance certificate (a "Compliance Certificate") in the form of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among Exhibit G dated the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used hereinmaking of such Loan and executed by the President or Chief Financial Officer, certifying, inter alia, that the term “Specified Portion” means an amount equal conditions set forth in Section 4.2(c), (d) and ----- ---- (e) hereof are satisfied on such date.
(g) All legal matters incident to the Loan shall be satisfactory to counsel for the Lender.
(h) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident thereto shall be satisfactory in form and substance to the Lender, and the Lender upon its request shall have received all information and such counterpart originals or certified or other copies of such documents as it may reasonably request prior to the making of such Loan.
(i) $102,000,000 minus (ii) The Borrower shall have delivered to the aggregate amount of Lender all material documents and agreements evidencing or executed in connection with Subordinated Debt and the Lender shall be reasonably satisfied that such documents provide that all obligations under owing by the Existing DIP Credit Agreement that Borrower to the Lender are not repaid in cash all respects senior to such Subordinated Debt on terms satisfactory to the effective date of the Reorganization PlanLender.
Appears in 1 contract
Conditions to Loans. The No Lender shall have any obligation of each Lender to make its Loans hereunder is subject to satisfaction of Loan under Section 2.01 until the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt Agent shall have received all of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required LendersAdministrative Agent:
(i) executed counterparts of (A) this Agreement executed by the Borrower, the Administrative Agent and the Lenders listed on the signature pages to this Agreement, and (B) the Guarantee Collateral Agency Joinder Agreement executed by the Borrower and Collateral Agreement, the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party theretoAdministrative Agent;
(ii) an original a Note executed by the Borrower in favor of each Lender that has requested requesting a NoteNote reasonably in advance of the Closing Date;
(iii) a Committed Loan Notice relating all UCC financing statements and other documents or instruments necessary or advisable to perfect the Loans; andsecurity interests created by the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Restricted Person as the certificatesAdministrative Agent may reasonably require, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the LendersAdministrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Restricted Person is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the “Effective Date” as conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of each of (A) Xxxxxx & Xxxxxxx LLP, counsel to the Restricted Persons and (B) the General Counsel of ETP, LLC, in each case in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each Lender; and the Borrower hereby requests such counsel to deliver such opinion;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions set forth in Section 4.01(b), (d) and (e) shall be true and correct;
(viii) the Reorganization Plan shall have occurred prior Initial Financial Statements; and
(ix) the Solvency Certificate executed by the Chief Financial Officer of the Borrower.
(b) After giving effect to or simultaneously with this Agreement, the Transactions to occur on the Closing Date and all conditions precedent the other transactions contemplated hereby, the Borrower shall not have any Indebtedness for borrowed money or preferred Equity Interests other than (i) the Obligations, (ii) the Senior Note Obligations, (iii) the obligations pursuant to the occurrence of such Effective Date shall have been satisfied Revolving Credit Agreement, (or waived iv) the Existing Term Loan Obligations, (v) Indebtedness incurred under agreements and instruments set forth on the most recent applicable periodic filing made by the Lenders)Borrower with the Securities and Exchange Commission and (vi) Indebtedness permitted under Sections 7.01.
(c) The Unless waived by the Administrative Agent, the Borrower shall have issued Convertible Notes in paid all fees, charges and disbursements of counsel to the amount Administrative Agent to the extent invoiced at least two (2) days prior to the Closing Date, plus such additional amounts of $125,000,000 in exchange for such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (aprovided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) the Specified Portion (as hereinafter defined) Each of the Existing Convertible Notes representations and all other unsecured; indebtedness and liabilities of warranties made by any Restricted Person in or pursuant to the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which Loan Documents shall be allocated among true and correct in all material respects (except to the applicable creditors extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects).
(e) No Default or Event of Default shall have occurred and be continuing on a ratable basis based such date or after giving effect to the extensions of credit requested to be made on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization PlanClosing Date.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Conditions to Loans. The obligation of each Lender to make its Loans hereunder is subject to satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lenders:
(a) The Administrative Agent’s or obligation of the Lenders’ (as applicable) Lender to make the Loans is subject to the Lender's receipt of the following, on or before the Closing Date, each properly executed by a Responsible Officer dated the date of the signing first Loan Partyor as of an earlier date acceptable to the Lender, and each in form and substance reasonably satisfactory to the Required LendersLender and its counsel:
(i) executed counterparts of this Agreementcompleted requests for information (Form UCC-11) listing all effective Uniform Commercial Code financing statements naming the Borrower as debtor and all tax lien, judgment, and litigation searches for the Guarantee and Collateral Agreement, Borrower as the Pledge Agreement, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party theretoLender shall reasonably deem necessary or desirable;
(ii) an original Note executed by acknowledgment copies of Uniform Commercial Code financing statements (naming the Lender as secured party and the Borrower as debtor), duly filed in all jurisdictions that the Lender deems necessary or desirable to perfect and protect the security interests created hereunder, and evidence that all other filings, registrations and recordings have been made in the appropriate governmental offices, and all other action has been taken, which shall be necessary to create, in favor of each Lender that has requested the Lender, a Noteperfected Lien on the Collateral;
(iii) a Committed Loan Note duly executed by the Borrower evidencing the amount of such Loan;
(iv) if requested by the Lender, a Collateral Access Agreement duly executed by the lessor or mortgagee, as the case may be, of each premises where the equipment Collateral is located;
(v) a Notice relating of Security Interest, in form and substance satisfactory to the LoansLender and its counsel, to each financial institution at which any deposit accounts of Borrower are maintained;
(vi) certificates of insurance required under Section 5.4 of this Agreement together with loss payee endorsements for all such policies naming the Lender as lender loss payee and as an additional insured;
(vii) a certificate of the Secretary or an Assistant Secretary of the Borrower ("Secretary's Certificate") certifying (A) that attached to the Secretary's Certificate is a true, complete, and accurate copy of the resolutions of the Board of Directors of the Borrower (or a unanimous consent of directors in lieu thereof) authorizing the execution, delivery, and performance of this Agreement, the other Loan Documents, and the transactions contemplated hereby and thereby, and that such resolutions have not been amended or modified since the date of such certification and are in full force and effect; (B) the incumbency, names, and true signatures of the officers of the Borrower authorized to sign the Loan Documents to which it is a party; (C) that attached to the Secretary's Certificate is a true and correct copy of the Articles or Certificate of Incorporation of the Company, as amended, which Articles or Certificate of Incorporation have not been further modified, repealed or rescinded and are in full force and effect; (D) that attached to the Secretary's Certificate of the Borrower is a true and correct copy of the Bylaws, as amended, which Bylaws of the Company have not been further modified, repealed or rescinded and are in full force and effect; and (E) that attached to the Secretary's Certificate is a valid Certificate of Good Standing issued by the Secretary of the State of the Borrower's state of incorporation;
(viii) the opinion of Xxxxxx & Xxxxxxx, special counsel for the Borrower covering such matters incident to the transactions contemplated by this Agreement as the Lender may reasonably require;
(ix) evidence of the consent or authorization of, filing with or other act by or in respect of any governmental agency or authority or any other Person required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby; and
(ivx) the certificates, such other documents, instruments, agreements, legal opinions agreements and deliverables set forth on instruments as the Closing Checklist attached hereto as Schedule 1Lender deems necessary in its sole and absolute discretion in connection with the transactions contemplated hereby.
(b) With respect to The security interests in the Chapter 11 Case, there Collateral granted in favor of the Lender under this Agreement shall have been entered a final order confirming the Reorganization Plan in form duly perfected and substance reasonably satisfactory to the Lendersshall constitute first priority liens, and the “Effective Date” as set forth in the Reorganization Plan shall have occurred prior to or simultaneously with the Closing Date and all conditions precedent to the occurrence of such Effective Date shall have been satisfied (or waived by the Lenders)except for Permitted Liens.
(c) The Borrower shall have issued Convertible Notes in the amount of $125,000,000 in exchange for (a) the Specified Portion (as hereinafter defined) of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of the Borrower (other than Department of Justice and other government related payments and trade claims, which will remain unimpaired), which shall be allocated among the applicable creditors on a ratable basis based on the respective principal or face amount of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus (ii) the aggregate amount of obligations under the Existing DIP Credit Agreement that are not repaid in cash on the effective date of the Reorganization Plan.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Keravision Inc /Ca/)
Conditions to Loans. The No Lender shall have any obligation of each Lender to make its Loans hereunder is subject to satisfaction of Loan under Section 2.01 until the following conditions precedent, except as otherwise agreed between the Borrower, the Administrative Agent and the Required Lendersprecedent have been satisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent’s or the Lenders’ (as applicable) receipt Agent shall have received all of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance reasonably satisfactory to the Required LendersAdministrative Agent:
(i) executed counterparts of (A) this Agreement executed by the Borrower, the Administrative Agent and the Lenders listed on the signature pages to this Agreement, (B) to the Guarantee extent required, the Guaranty executed by the Guarantors and the Administrative Agent, (C) the Collateral AgreementAgency Agreement executed by the Collateral Agent, the Revolving Administrative Agent, the Administrative Agent and the Trustee and (D) the other Collateral Documents executed by the Borrower, the Additional Grantors (as defined in the Pledge Agreement) and the Collateral Agent, the UK Debenture, the UK Share Charge 1, the Irish Security Documents and each other Loan Document to be entered into as of the Closing Date by each party theretoapplicable;
(ii) an original a Note executed by the Borrower in favor of each Lender that has requested requesting a NoteNote reasonably in advance of the Funding Date;
(iii) a Committed Loan Notice relating all UCC financing statements and other documents or instruments necessary or advisable to perfect the Loans; andsecurity interests created by the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Restricted Person as the certificatesAdministrative Agent may reasonably require, documents, instruments, agreements, legal opinions and deliverables set forth on the Closing Checklist attached hereto as Schedule 1.
(b) With respect to the Chapter 11 Case, there shall have been entered a final order confirming the Reorganization Plan in form and substance reasonably satisfactory to the LendersAdministrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Restricted Person is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the “Effective Date” as set forth conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of each of (A) Xxxxxx & Xxxxxxx LLP, counsel to the Restricted Persons and (B) the General Counsel of ETP, LLC, in each case in form and substance reasonably satisfactory to the Reorganization Plan shall have occurred prior Administrative Agent, addressed to or the Administrative Agent and each Lender; and the Borrower hereby requests such counsel to deliver such opinion;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) the Acquisition and the other transactions contemplated under the Merger Agreement are being consummated simultaneously with the funding of the Loans on the Funding Date, (B) the Merger Agreement has not been amended or modified since July 19, 2011, and that no condition therein has been waived or any consent granted since July 19, 2011, in each case, in any respect that is material and adverse to the Lenders without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld or delayed), and (C) there has been no event, change, effect, development, condition or occurrence since December 31, 2010 that has had or would reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect;
(viii) the Initial Borrower Financial Statements;
(ix) [Reserved];
(x) the Solvency Certificate executed by the Chief Financial Officer of the Borrower; and
(xi) either (i) a duly executed copy of Amendment No. 2 to the Revolving Credit Agreement, effective as of the Closing Date or (ii) evidence satisfactory to it that (A) all Revolving Loans (as defined in the Revolving Credit Agreement as in effect on the Closing Date) shall have been or shall concurrently be repaid in full, together with any accrued interest thereon and all conditions precedent any accrued fees payable pursuant to the occurrence Revolving Credit Agreement as in effect on the Closing Date, and (B) the commitments of such Effective the Revolving Lenders under the Revolving Credit Agreement as in effect on the Closing Date shall have been satisfied or shall concurrently be terminated.
(b) After giving effect to this Agreement, the Acquisition and the other transactions contemplated hereby and thereby, the Borrower shall not have any Indebtedness for borrowed money or waived preferred Equity Interests other than (i) the Obligations, (ii) the Senior Note Obligations, (iii) the Restructuring Preferred Units, (iv) the obligations pursuant to the Revolving Credit Agreement and any amendment, modification, refinancing, restatement or replacement thereof, (v) Indebtedness incurred under agreements and instruments set forth on the most recent applicable periodic filing made by the LendersBorrower with the Securities and Exchange Commission and (vi) Indebtedness permitted under Sections 7.01(b) and (h).
(c) The Unless waived by the Administrative Agent, the Borrower shall have issued Convertible Notes in paid all fees, charges and disbursements of counsel to the amount Administrative Agent to the extent invoiced at least two (2) days prior to the Funding Date, plus such additional amounts of $125,000,000 in exchange for such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (a) the Specified Portion (as hereinafter defined) provided that such estimate shall not thereafter preclude a final settling of the Existing Convertible Notes and all other unsecured; indebtedness and liabilities of accounts between the Borrower and the Administrative Agent).
(other than Department of Justice d) The Lenders shall have received at least three (3) Business Days prior to the Funding Date, to the extent requested at least five (5) Business Days prior to the Funding Date, all documentation and other government related payments information required by regulatory authorities under applicable “know your customer” and trade claimsanti-money laundering rules and regulations, which will remain unimpaired), which shall be allocated among including the applicable creditors on a ratable basis based on the respective principal or face amount USA PATRIOT Act.
(e) The ratio of their respective unsecured claims, (b) the “Roll Up Loans” under (and as defined in) the Existing Bridge Credit Agreement (plus accrued fees and interest thereon), which shall receive such Convertible Notes on a dollar for dollar basis in full satisfaction of the applicable creditors’ claims, and (c) the aggregate amount of obligations under the Existing DIP Credit Agreement on a dollar for dollar basis that are not repaid in cash on the effective date of the Reorganization Plan. As used herein, the term “Specified Portion” means an amount equal to (i) $102,000,000 minus Value on such date to (ii) the aggregate principal amount of obligations under Loans, the Existing DIP Credit Agreement that are not repaid in cash on the effective date outstanding principal amount of the Reorganization PlanRevolving Loans, LC Obligations (as defined in the Revolving Credit Agreement), the principal amount of the Senior Notes, and Hedging Termination Value of Lender Hedging Obligations and Other Hedging Obligations on such date is not less than 2.0 to 1.0. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section, each Lender that has executed and delivered 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 Funding Date specifying its objection thereto.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)