Interim Order. (a) The application referred to in Sections 2.4(a) and 2.5(a) shall request that the Interim Order provide, among other things: (i) for the class of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be provided; (ii) that: (A) the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101; (B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting; (iii) that: (A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101; (B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting; (iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court; (v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court; (vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement; (vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order; (viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order; (ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order; (x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting; (xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and (xii) for such other matters as the Parties may agree in writing, each acting reasonably. (b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 2 contracts
Sources: Arrangement Agreement (Potash Corp of Saskatchewan Inc), Arrangement Agreement (Agrium Inc)
Interim Order. At the time of the Initial Extension of Credit, the Initial Lenders shall have received, on or before the Effective Date, a certified copy of an order entered by the Bankruptcy Court in substantially the form of Exhibit E (athe “Interim Order”) The application referred to approving the Loan Documents and granting the Superpriority Claim status and the Liens described in Sections 2.4(a) and 2.5(aSection 2.17, which Interim Order (i)(A) shall request that the Interim Order provide, among other things:
(i) for the class authorize extensions of Persons to whom notice is to be provided credit in respect of (x) the ArrangementNon-rollup Revolving Credit Facility in an aggregate amount of up to $25,000,000 and (y) the Term Facility in an aggregate amount of up to $165,000,000, (B) shall authorize and direct the PCS Meeting indefeasible repayment of any Obligations under the Existing Receivables Facility, which repayment shall not be subject to any future challenge by any Person, (C) shall have been entered upon an application or motion of the Borrower and each Guarantor reasonably satisfactory in form and substance to the Agrium Meeting Initial Lenders, on such prior notice to such parties as may in each case be reasonably satisfactory to the Initial Lenders, (D) shall approve the payment by the Borrower of all of the fees and for the manner in which such notice is expenses that are required to be provided;
paid in connection with the Facilities and (E) shall have been entered not later than five days after the Petition Date; (ii) that:
shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Pre-Petition Secured Creditor under the Pre-Petition Security Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the aggregate reduction in the Pre-Petition Collateral as a consequence of the priming Liens described in Section 2.17 and the imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code, for (A) the requisite approval for monthly cash payment of current interest and letter of credit fees on the PCS Arrangement Resolution Pre-Petition Secured Indebtedness at the applicable non-default rates applicable on the Petition Date pursuant to be placed before the PCS Meeting shall be twoPre-thirds Petition Document, (66-2/3%B) a superpriority claim as contemplated by section 507(b) of the votes cast Bankruptcy Code, limited in amount to the diminution in value of the Pre-Petition Collateral to the extent of the Pre-Petition Secured Indebtedness, resulting from the sale, lease or use by the Borrower and the Guarantors of any Pre-Petition Collateral, the priming Liens described in Section 2.17 and the imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code, immediately junior to the claims under section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand) and subject to the payment of the Carve-Out, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and advisers as permitted under the Pre-Petition Document) for the Pre-Petition Agent (including the payment on the PCS Arrangement Resolution by PCS Shareholders present in person Effective Date or by proxy at as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority continuation of the votes cast payment to the Pre-Petition Agent on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions a current basis of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of fees that are provided for under the PCS Meeting;
Pre-Petition Security Agreement; (iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held full force and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions effect; and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned shall not have been stayed, reversed, modified or postponed from time to time amended in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablyrespect.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 2 contracts
Sources: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP), Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Lenders shall have received a copy of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe "Interim Order") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:
(i) for the class of Persons to whom notice is to be provided in respect shall have been entered, upon an application or motion of the ArrangementBorrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the PCS Meeting Existing Lenders) as may in each case be reasonably satisfactory to the Agent and upon consent or non-objection of a preponderance of the Agrium Meeting and for financial institutions, as determined by the manner in which such notice is Agent, that are parties to be provided;
the Existing Agreements, (ii) that:
shall authorize extensions of credit in amounts not in excess of an amount to be set forth in the Interim Order, which shall be satisfactory to the Lenders until the entry of the Final Order hereinafter referred to, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreements may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Existing 2002 Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreements or to the rights of Arrangement;the Borrower to contest such assertion), (B) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)
(1) of the Bankruptcy Code held by the Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Lenders hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the Pre-Petition Agents (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the Pre-Petition Agents on a current basis of the administration fees that are provided for under the Existing Agreements and (E) such other protection as agreed between the Borrower, the Guarantors and the Existing Lenders, including financial reporting requirements and receipt of asset sale proceeds after the Escrow Payout Date, (vi) shall authorize the Borrower and the Pre-Petition Agents, without further approval or consent from any party (including any Existing Lender), to agree to extend the expiration date of expiring letters of credit under the Existing Agreements for a period not to exceed one year and (vii) for shall not have been vacated, stayed, reversed, modified or amended in any respect; and, if the notice requirements with respect to Interim Order is the presentation subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the joint application Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (McLeodusa Inc)
Interim Order. (a) The application referred to in Sections 2.4(a) At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and 2.5(a) the Lenders shall request that have received a certified copy of the Interim Order provide, among other things:
which Interim Order (i) for shall have been entered, no later than 5 days following the class of Persons to whom notice is to be provided in respect Filing Date, upon an application or motion of the ArrangementBorrower reasonably satisfactory in form and substance to the Initial Lenders, on such prior notice to such parties (including the PCS Meeting Existing Lenders) as may in each case be reasonably satisfactory to the Agent and upon consent or non-objection of a preponderance of the Agrium Meeting and for financial institutions, as determined by the manner in which such notice is Initial Lenders, that are parties to be provided;
the Existing Agreement, (ii) that:
(A) the requisite approval for the PCS Arrangement Resolution shall authorize extensions of credit in amounts not in excess of an amount to be placed before the PCS Meeting shall be two-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (, which shall be satisfactory to the same day as Initial Lenders, until the record date entry of the Final Order hereinafter referred to to, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.6(a)(viii)2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, as adequate protection for the purposes use of determining such cash collateral and the Agrium Securityholders entitled to receive material priming contemplated by Section 2.23 and vote at (vi) shall not have been stayed, reversed, modified or amended in any respect without the Agrium Meeting in accordance with prior written consent of the Initial Lenders; and, if the Interim Order;
(x) that Order is the record date for PCS Shareholders entitled to notice subject of and to vote at a pending appeal in any respect, neither the PCS Meeting will not change in respect making of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for Loans nor the issuance of such Letter of Credit nor the New Parent Shares pursuant to performance by the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness Borrower or any of the terms and conditions Guarantors of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them any of their right respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to attend and appear before herein shall be the Court at the hearing subject of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such righta presently effective stay pending appeal.
Appears in 1 contract
Sources: Revolving Credit, Guaranty and Security Agreement (Acterna Corp)
Interim Order. At the time of the Initial Extension of Credit, the Initial Lenders shall have received, on or before the Effective Date, a certified copy of an order entered by the Bankruptcy Court in substantially the form of Exhibit E (athe “Interim Order”) The application referred to approving the Loan Documents and granting the Superpriority Claim status and the Liens described in Sections 2.4(a) and 2.5(aSection 2.17, which Interim Order (i)(A) shall request that the Interim Order provide, among other things:
(i) for the class authorize extensions of Persons to whom notice is to be provided credit in respect of (x) the ArrangementNon-rollup Revolving Credit Facility in an aggregate amount of up to $25,000,000 and (y) the Term Facility in an aggregate amount of up to $165,000,000, (B) shall authorize and direct the PCS Meeting indefeasible repayment of any Obligations under the Existing Receivables Facility, which repayment shall not be subject to any future challenge by any Person, (C) shall have been entered upon an application or motion of the Borrower and each Guarantor reasonably satisfactory in form and substance to the Agrium Meeting Initial Lenders, on such prior notice to such parties as may in each case be reasonably satisfactory to the Initial Lenders, (D) shall approve the payment by the Borrower of all of the fees and for the manner in which such notice is expenses that are required to be provided;
paid in connection with the Facilities and (E) shall have been entered not later than five days after the Petition Date; (ii) that:
shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Pre-Petition Secured Creditor under the Pre-Petition Security Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the aggregate reduction in the Pre- Petition Collateral as a consequence of the priming Liens described in Section 2.17 and the imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code, for (A) the requisite approval for monthly cash payment of current interest and letter of credit fees on the PCS Arrangement Resolution Pre-Petition Secured Indebtedness at the applicable non-default rates applicable on the Petition Date pursuant to be placed before the PCS Meeting shall be twoPre-thirds Petition Document, (66-2/3%B) a superpriority claim as contemplated by section 507(b) of the votes cast Bankruptcy Code, limited in amount to the diminution in value of the Pre-Petition Collateral to the extent of the Pre-Petition Secured Indebtedness, resulting from the sale, lease or use by the Borrower and the Guarantors of any Pre-Petition Collateral, the priming Liens described in Section 2.17 and the imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code, immediately junior to the claims under section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand) and subject to the payment of the Carve-Out, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and advisers as permitted under the Pre-Petition Document) for the Pre-Petition Agent (including the payment on the PCS Arrangement Resolution by PCS Shareholders present in person Effective Date or by proxy at as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority continuation of the votes cast payment to the Pre-Petition Agent on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions a current basis of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of fees that are provided for under the PCS Meeting;
Pre-Petition Security Agreement; (iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held full force and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions effect; and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned shall not have been stayed, reversed, modified or postponed from time to time amended in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablyrespect.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agents and the Lenders shall have received satisfactory evidence of the entry of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe “Interim Order”) The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.25 which Interim Order provide, among other things:
(i) for the class shall authorize extensions of Persons to whom notice is to be provided credit in respect amounts not in excess of the Arrangement$950,000,000, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be provided;
(ii) that:
shall authorize the payment by the Borrower of all fees provided for herein and in the fee letter described in Section 2.21, (iii) shall be in form and substance reasonably satisfactory to the Agents, (iv) shall have been entered not later than fifteen (15) days following the Filing Date, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates applicable on the Filing Date (including LIBOR pricing options) pursuant to the Existing Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower or any other Person to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code, limited in amount to the aggregate diminution in value of the Existing Collateral, including any such diminution resulting from the sale, lease or use by the Borrower and the Guarantors (or other decline in value) of cash collateral and any other Existing Collateral, the priming of the Existing Agent’s security interests and liens in the Existing Collateral by the Agent and the Lenders pursuant to the Loan Documents and the Interim Order, and the imposition of the automatic stay pursuant to Section 362 of the Bankruptcy Code, immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand) and subject, only in the event of the occurrence and during the continuance of an Event of Default, to the payment of the Carve-Out, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Existing Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Existing Agent on a current basis of the joint application to administration fees that are provided for under the Court for Existing Agreement and (vi) shall not have been vacated, stayed, reversed, modified or amended in any respect; and, if the Final Order;
(viii) confirmation Interim Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date for Guarantors of any of their respective obligations hereunder or under the purposes of determining the PCS Shareholders entitled Loan Documents or under any other instrument or agreement referred to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Interim Order. (a) The application referred to in Sections 2.4(a) and 2.5(a) Bankruptcy Court shall request that have entered the Interim Order provideOrder, among other things:
which (i) for the class of Persons to whom notice is to be provided in respect shall have been entered upon an application of the ArrangementBorrower satisfactory in form and substance to the Administrative Agent, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be provided;
(ii) that:
shall contain the approval of this Agreement and the other Loan Documents to which any Loan Party is a party to and the transactions contemplated hereby and thereby and granting the Super-Priority Claim status and the Liens described in Section 11.1 and finding that the Lenders are extending credit to the Borrower in good faith within the meaning of section 364(e) of the Bankruptcy Code, (iii) shall provide, as adequate protection for the Prepetition Lenders, that (A) all accrued and unpaid interest due and payable to the requisite approval for Prepetition Lenders under the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) terms of the votes cast Prepetition Credit Agreement prior to the Petition Date be paid on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy Petition Date to the Prepetition Lenders at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
Prepetition Default Rate and (B) that, in all other respects, interest that accrues on the terms, restrictions and conditions of Prepetition Obligations after the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting Petition Date shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time payable in accordance with the terms of this the Prepetition Credit Agreement without at the need applicable non-default rate, (iv) shall provide, as adequate protection for additional approval the Prepetition Lenders, the Prepetition Agent with replacement Liens for the benefit of itself and the Prepetition Lenders on (A) all assets of the Court;
Borrower and the Guarantors securing the Prepetition Obligations and (B) any assets of the Borrower and the Guarantors that secure the Obligations, but which do not secure the Prepetition Obligations, (v) that shall be certified by the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval Clerk of the Court;
Bankruptcy Court as having been duly entered, (vi) for the grant of the Dissent Rights to the registered PCS Shareholders shall be in full force and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
effect and (vii) for shall not have been vacated, reversed, modified, amended or stayed without the notice requirements with respect to the presentation prior written consent of the joint application to Administrative Agent and the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablyRequisite Lenders.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Interim Order. (a) The application referred to At the time of the making of the initial Extension of Credit, and in Sections 2.4(a) and 2.5(a) any event no later than five days after the Petition Date, the Administrative Agent shall request that have received a copy of the Interim Order provideapproving the Loan Documents and granting the Superpriority Claim status and Liens described in subsections 2.8 and 2.9 and finding that the Lenders are extending credit to the Borrower in good faith within the meaning of Section 364(e) of the Bankruptcy Code, among other things:
which Interim Order shall (i) for have been entered with the class consent or non-objection of Persons to whom notice is to be provided in respect a majority (as determined by the Administrative Agent) of the Arrangementlending institutions party to the Prepetition Credit Facility and on such prior notice to such parties (including without limitation, the PCS Meeting and Prepetition Secured Parties) as may be reasonably satisfactory to the Agrium Meeting and for the manner in which such notice is to be provided;
Administrative Agent, (ii) that:
(A) be in form and substance reasonably satisfactory to the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andAdministrative Agent, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) authorize extensions of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present credit in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority amounts not in excess of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
$100,000,000 (iv) that authorize the PCS Meeting may be adjourned or postponed from time to time use of Cash Collateral under the Prepetition Credit Facility and provide for adequate protection in accordance with the terms of this Agreement without the need for additional approval favor of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders Prepetition Secured Parties as set forth in subsection 2.8(c), (v) contain customary provisions regarding challenges to the Plan prepetition claims and liens of Arrangement;
the Prepetition Secured Parties, Section 506(c) of the Bankruptcy Code and other matters, (vi) approve the payment by the Borrower of all Fees, (vii) for the notice requirements with respect to the presentation approve repayment in full of the joint application to 2008 Revolving Loans, the Court for 2008 Swingline Loans, the Final Order;
2008 Reimbursement Obligations and the New Term Loans under the Prepetition Credit Facility, (viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material be in full force and vote at the PCS Meeting in accordance with the Interim Order;
effect and (ix) confirmation not have been stayed, reversed, vacated, rescinded, modified or amended in any respect and, if the Interim Order is the subject of a pending appeal in any respect, none of the record date (which making of such Extension of Credit, the grant of Liens and Superpriority Claims pursuant to subsection 2.8 or 2.9 or the performance by the Loan Parties of any of their respective obligations hereunder or under the other Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the DIP Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit C (athe "INTERIM ORDER") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:
(i) for shall have been entered, with the class consent or non-objection of Persons to whom notice is to be provided a preponderance, as determined by the Agent in respect its sole judgment, of the ArrangementPre-Petition Lenders, upon an application or motion of the PCS Meeting Borrower reasonably satisfactory in form and substance to the Agrium Meeting and for Agent, on such prior notice to such parties (including the manner Pre-Petition Lenders) as may in which such notice is each case be reasonably satisfactory to be provided;
the Agent, (ii) that:
shall authorize extensions of credit in amounts satisfactory to the Agent, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Pre-Petition Lender under the Pre-Petition Credit Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Petition Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Pre-Petition Credit Agreement (the payments described in this clause to be without prejudice to the rights of any Pre-Petition Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) payment of the votes cast additional interest calculated at any other applicable rates of interest, or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Pre-Petition Credit Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (viiB) a Superpriority Claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the DIP Lenders, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the DIP Lenders hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agent on a current basis of the joint application administration fees that are provided for under the Pre-Petition Credit Agreement and (E) the payment to the Court Pre-Petition Lenders (to be applied as provided for in the Final Order;
(viiiPre-Petition Credit Agreement) confirmation of the record date for Net Proceeds of the purposes sale of determining assets on which they have Liens to the PCS Shareholders entitled extent such Net Proceeds are not required to receive material be paid to the Agent and vote at the PCS Meeting DIP Lenders hereunder (such payments to the Pre-Petition Lenders to be made each time that cumulative Net Proceeds that are so payable, but have not yet been paid, reach $500,000) and (vi) shall not have been stayed, reversed, modified or amended in accordance with any respect; and, if the Interim Order;
(ix) confirmation Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date (which Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Laroche Industries Inc)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agents and the Lenders shall have received satisfactory evidence of the entry of an order of the Bankruptcy Court in the form of Exhibit A-1 (athe "Interim Order") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.25 which Interim Order provide, among other things:
(i) for the class shall authorize extensions of Persons to whom notice is to be provided credit in respect amounts not in excess of the Arrangement$950,000,000, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be provided;
(ii) that:
shall authorize the payment by the Borrower of all fees provided for herein and in the fee letter described in Section 2.21, (iii) shall be in form and substance reasonably satisfactory to the Agents, (iv) shall have been entered not later than fifteen (15) days following the Filing Date, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates applicable on the Filing Date (including LIBOR pricing options) pursuant to the Existing Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower or any other Person to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code, limited in amount to the aggregate diminution in value of the Existing Collateral, including any such diminution resulting from the sale, lease or use by the Borrower and the Guarantors (or other decline in value) of cash collateral and any other Existing Collateral, the priming of the Existing Agent's security interests and liens in the Existing Collateral by the Agent and the Lenders pursuant to the Loan Documents and the Interim Order, and the imposition of the automatic stay pursuant to Section 362 of the Bankruptcy Code, immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand) and subject, only in the event of the occurrence and during the continuance of an Event of Default, to the payment of the Carve-Out, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Existing Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Existing Agent on a current basis of the joint application to administration fees that are provided for under the Court for Existing Agreement and (vi) shall not have been vacated, stayed, reversed, modified or amended in any respect; and, if the Final Order;
(viii) confirmation Interim Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date for Guarantors of any of their respective obligations hereunder or under the purposes of determining the PCS Shareholders entitled Loan Documents or under any other instrument or agreement referred to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Guaranty Agreement (Delphi Corp)
Interim Order. The Initial Lenders shall have received, on or before the Effective Date, a certified copy of an order entered by the Bankruptcy Court in substantially the form of Exhibit E, or otherwise in form and substance reasonably satisfactory to the Administrative Agent (a) The application referred to the “Interim Order”), approving the Loan Documents and granting the Superpriority Claim status and the Liens described in Sections 2.4(a) and 2.5(aSection 2.17, which Interim Order (i)(A) shall request authorize extensions of credit in the aggregate amount of up to $450,000,000, and (B) shall approve the payment by the Borrower of all of the fees and expenses that the Interim Order provide, among other things:
(i) for the class of Persons to whom notice is are required to be provided paid in respect of connection with the Arrangement, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be provided;
Facilities; (ii) that:
shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Pre-Petition Secured Creditor under the Pre-Petition Security Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the aggregate reduction in the Pre-Petition Collateral as a consequence of the priming Liens described in Section 2.17 and the imposition of the automatic stay pursuant to section 362 of the Bankruptcy Code, for (A) the requisite approval for monthly cash payment of current interest and letter of credit fees on the PCS Arrangement Resolution Pre-Petition Secured Indebtedness at the applicable non-default rates applicable on the Petition Date pursuant to be placed before the PCS Meeting shall be twoPre-thirds Petition Document, (66-2/3%B) a superpriority claim as contemplated by section 507(b) of the votes cast on Bankruptcy Code, limited in amount to the PCS Arrangement Resolution by PCS Shareholders present diminution in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority value of the votes cast on Pre-Petition Collateral to the PCS Arrangement Resolution extent of the Pre-Petition Secured Indebtedness, resulting from the sale, lease or use by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding Borrower and the votes Guarantors of those Persons whose votes are required to be excluded under MI 61any Pre-101;
(B) that, in all other respectsPetition Collateral, the terms, restrictions priming Liens described in Section 2.17 and conditions the imposition of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect automatic stay pursuant to section 362 of the PCS Meeting;
Bankruptcy Code, immediately junior to the claims under section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand) and subject to the payment of the Carve-Out, (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the Liens granted in favor of the Administrative Agent and the Lenders hereunder and under the other Loan Documents and (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and advisers as permitted under the Pre-Petition Document) for the Pre-Petition Agent and the continuation of the payment to the Pre-Petition Agent on a current basis of the fees that are provided for under the Pre-Petition Security Agreement; (iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held full force and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions effect; and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned shall not have been stayed, reversed, modified or postponed from time to time amended in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablyrespect.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Chemtura CORP)
Interim Order. The Administrative Agent and the Required Lenders shall have received satisfactory evidence of the entry by the Bankruptcy Court of an interim order under Section 364 of the Bankruptcy Code in substantially the form of Exhibit K or otherwise in form and substance satisfactory to the Administrative Agent (athe “Interim Order”) The approving the Fundamental Documents and granting the superpriority claim status and senior priming and other Liens described in Section 2.16 which Interim Order (i) shall have been entered upon an application or motion of the Borrower reasonably satisfactory in form and substance to the Administrative Agent, on such prior notice as may in each case be reasonably satisfactory to the Administrative Agent, (ii) shall authorize extensions of Loans and Letters of Credit on an interim basis in an aggregate amount at any one time outstanding not in excess of $7,500,000.00 in the aggregate, (iii) shall approve the payment by the Borrower of 50% of the Up-Front Fees and all of the fees referred to in Sections 2.4(a) and 2.5(aSection 2.4(c), (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by Credit Parties of any cash collateral in which any lender under the Existing Facilities and in which any Specified Guild may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for such protection that is satisfactory to the manner in which such notice is to be provided;
(ii) that:
Administrative Agent, including (A) the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%superpriority claims as contemplated by Section 507(b) of the votes cast on Bankruptcy Code, each of which shall be junior to the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at Carve-Out and the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share heldclaims under Section 364(c)(1) and, if required under Canadian Securities Laws, by a majority of the votes cast on Bankruptcy Code held by the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at Administrative Agent and the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
Lenders, (B) that, replacement Liens on (in all other respects, the terms, restrictions and conditions case of the constating documents of PCS, including quorum requirements Existing First Lien Agent and the Existing Second Lien Agent) substantially all other matters, shall apply in respect of the PCS Meeting;
assets of the Credit Parties and (iiiin the case of the Specified Guilds) that:
certain of the Credit Parties’ Items of Product on which the Guild Liens were prior to the Filing Date senior to the Liens of the Existing First Lien Agent (A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting on an uncrossed, Guild-by-Guild and film-by-film basis), each of which replacement Liens shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights junior to the registered PCS Shareholders Carve-Out and the registered Agrium Shareholders Liens held by the Administrative Agent under the Facility, and shall have such additional relative priorities as are set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; , and
(xii) for such other matters as the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Interim Order. At the time of the making of the initial Loans or ------------- at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Banks shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe "Interim ------- Order") The approving the Loan Documents and granting the Superpriority Claim status ----- and senior priming and other Liens described in Section 2.23 which Interim Order (i) shall have been entered, with the consent or non-objection of a preponderance (as determined by the Agent) of the Existing Lenders, upon an application or motion of the Borrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the Existing Lenders) as may in each case be reasonably satisfactory to the Agent, (ii) shall authorize extensions of credit in amounts satisfactory to the Agent, (iii) shall approve the payment by the Borrower of all of the Fees referred to in Sections 2.4(a) and 2.5(aSection 2.19, (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for the manner in which such notice is to be provided;
(ii) that:
(A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Existing Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Banks (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and the Guarantors in favor of the Pre-Petition Agent having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Banks hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agent on a current basis of the joint administration fees that are provided for under the Existing Agreement, (E) the receipt of all financial statements and other reports that are furnished to the Banks and such other protection as agreed between the Borrower, the Guarantors and the Existing Lenders, (F) the payment for the application to the Court for the Final Order;
(viii) confirmation obligations of the record date for Borrower under the purposes Existing Agreement of determining 100% of the PCS Shareholders entitled repatriated funds received from foreign subsidiaries to receive material the extent such funds are not required to be applied to satisfy the Borrower's Obligations hereunder, and vote at the PCS Meeting (G) shall not have been vacated, stayed, reversed, modified or amended in accordance with any respect; and, if the Interim Order;
(ix) confirmation Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date (which Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Galey & Lord Inc)
Interim Order. Not later than ten (a10) The days following the Filing Date, the Administrative Agent and the Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A-l (the "INTERIM ORDER") granting the Superpriority Claim status and senior priming and other Liens described in Section 2.22 which Interim Order (i) shall have been entered upon an application referred or motion of the Debtors reasonably satisfactory in form and substance to the Administrative Agent and on such prior notice to such parties as may be satisfactory to the Administrative Agent, (ii) shall authorize extensions of credit in amounts satisfactory to the Administrative Agent, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Sections 2.4(a) 2.18, 2.19 and 2.5(a2.20, (iv) shall request be in full force and effect, (v) shall have authorized as adequate protection for and to the extent of any diminution in value of the Pre-Petition Lenders' interest in the Pre-Petition Collateral after the Filing Date: (A) subject to the entry of the Final Order, payments in respect of unpaid interest, letter of credit fees and other fees and payments (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Interim Order provideFiling Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Pre-Petition Agreements (the payments described in this clause to be without prejudice to the rights of any Pre-Petition Lender to assert a claim in the Cases for the payment of additional interest calculated at any other applicable rates of interest, among or on any other thingsbasis, set forth in the Pre-Petition Agreements) as follows:
(i1) for provided that the class of Persons to whom notice is to Borrower shall then be provided in compliance with the Consolidated EBITDA and Domestic EBITDA covenants set forth in Section 6.5 in respect of the Arrangementprior calendar month, on July 1, 2002 and on the first Business Day of each calendar quarter thereafter, a payment (each, an "INITIAL PAYMENT") in respect of such accrued and unpaid interest, letter of credit and other fees and payments; provided that no such Initial Payment shall be made to the extent that on the last Business Day of the immediately preceding calendar quarter, after giving effect to such Initial Payment, Minimum Liquidity is less than $50,000,000; provided, further, that the sum of all Initial Payments shall not exceed $10,000,000, or such greater amount, not in excess of $20,000,000, as determined by the Initial Lenders and set forth in the Borrowing Base Addendum, (2) on October 1, 2002 and the first Business Day of each calendar quarter thereafter a payment in respect of all such accrued and unpaid interest and fees, each in an amount (the "PERMITTED PAYMENT AMOUNT") up to the amount which, when added to the sum of all prior Permitted Payment Amounts paid hereunder (such prior payments, collectively, but excluding all Initial Payments, the PCS Meeting "AGGREGATE PRIOR PAYMENT AMOUNT"), would cause the ratio of (1) the difference between (a) cumulative Domestic EBITDA for the current Measurement Period minus (b) cumulative Capital Expenditures for such Measurement Period, to (2) the sum of the current Permitted Payment Amount proposed to be made and the Agrium Meeting and for the manner in which such notice is Aggregate Prior Payment Amount, to be provided;
equal to 1.05:1.0; provided that no such payment shall be made to the extent that (i) such payment would cause such ratio to be less than 1.05:1.00 or (ii) that:
on such last Business Day of the immediately preceding calendar quarter, after giving effect to the payment of such Permitted Payment Amount, the Minimum Liquidity is less than $50,000,000, and (3) on February 1, 2002 and on the first Business Day of each fiscal quarter thereafter a payment in respect of all such accrued and unpaid interest and fees, each in an amount up to the aggregate amount of payments received by the Borrower or any Guarantor from one or more Foreign Subsidiaries (in the form of dividends, distributions, loan payments, repayments, prepayments or otherwise) during the immediately preceding fiscal quarter (less the amount of such payments received from Foreign Subsidiaries in Germany or from Hayes Lemmerz Fabricated Holdings, B.V. which payments shall be appl▇▇▇ ▇o repay the then outstanding Intercompany Loans to Foreign Subsidiaries in Germany or to Hayes Lemmerz Fabricated Holdings, B.V. made pursuant to Section 2.2▇); ▇rovided, that no such payment shall be made to the extent that on the last Business Day of the immediately preceding fiscal quarter, after giving effect to the proposed payment to be made, the Minimum Liquidity is less than $50,000,000; (B) a Superpriority Claim (which claim shall be payable from and have recourse to all pre-and post-petition property of the Borrower and the Guarantors including, without limitation, all proceeds, dividends, distributions and other amounts received or realized in respect of the Excluded Stock) contemplated by Section 507(b) of the Bankruptcy Code having a priority over all administrative expenses of the kind specified in Sections 503(b) and 507(b) of the Code, junior only to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Administrative Agent and the Lenders in respect of the Obligations; (C) a second priority adequate protection lien on the property of the Borrower and the Guarantors which adequate protection lien shall have a priority immediately junior to the priming and other liens granted in favor of the Administrative Agent and the Lenders in respect of the Obligations; and (D) the payment on a current basis of the reasonable fees and expenses (including, but not limited to, the reasonable fees and disbursements of external counsel and third-party consultants, including financial consultants, and auditors) incurred by the Pre-Petition Agent and the Pre-Petition Lenders, to the extent provided in the Pre-Petition Agreement, (including any unpaid pre-petition professional fees and expenses); (clauses (A), (B), (C) and (D) being collectively referred to herein as the "ADEQUATE PROTECTION OBLIGATIONS"), (vi) shall not have been stayed, reversed, modified or amended in any respect, except as approved by the Administrative Agent, in its sole discretion, and (vii) shall be entered with the consent or non-objection of a preponderance (as determined by the Administrative Agent in its sole discretion) of both (A) the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be twoPre-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
Petition Lenders and (B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights lenders party to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
Synthetic Lease Documents (vii) for the notice requirements solely with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with Subordinate Synthetic Lease Lien), taken as a whole; and, if the Interim Order;
(ix) confirmation Order is the subject of a pending appeal in any respect, neither the record date (which making of such Loan nor the issuance of such Letter of Credit nor the performance by the Borrower or any Guarantor of any of their respective obligations hereunder or under the other Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred subject of a presently effective stay pending appeal. No other claim having a priority superior to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance or pari passu with those granted by the Interim Order;
Order (xi) that to the record date for PCS Shareholders entitled Administrative Agent and the Lenders and (ii) to notice of the Pre-Petition Agent and to vote at the PCS Meeting will not change in respect of Pre-Petition Lenders, respectively, shall be granted while any adjournment(s) or postponement(s) portion of the PCS Meeting;
Loans or the Total Commitment hereunder remains outstanding or any Adequate Protection Obligations remain outstanding. The claims and liens described in clauses (xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
A), (xii) for such other matters as the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(aB) and 2.5(a), PCS and Agrium (C) in the definition of "Adequate Protection Obligations" above shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant be subject to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such rightCarve-Out.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Hayes Lemmerz International Inc)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Banks shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A-1 (athe "Interim Order") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:
(i) for the class of Persons to whom notice is to be provided in respect shall have been entered, upon an application or motion of the ArrangementBorrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the PCS Meeting and Existing Lenders) as may in each case be reasonably satisfactory to the Agrium Meeting and for the manner in which such notice is to be provided;
Agent, (ii) that:
shall authorize extensions of credit in amounts satisfactory to the Agent, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%a Superpriority claim as contemplated by Section 507(b) of the votes cast on Bankruptcy Code immediately junior to the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share heldclaims under Section 364(c)(1) and, if required under Canadian Securities Laws, by a majority of the votes cast on Bankruptcy Code held by the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at Agent and the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
Banks, (B) that, in a Lien on substantially all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect assets of the PCS Meeting;
Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Banks hereunder and under the other Loan Documents, (iii) that:
(AC) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Existing Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) payment of the votes cast additional interest calculated at any other applicable rates of interest, or on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (viiD) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agent on a current basis of the joint application to administration fees that are provided for under the Court for Existing Agreement, and (E) such other protection as agreed between the Final Order;
Borrower, the Guarantors and the Existing Lenders, and (viiivi) confirmation shall not have been stayed, reversed, modified or amended in any respect; and, if the Interim Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date for Guarantors of any of their respective obligations hereunder or under the purposes of determining the PCS Shareholders entitled Loan Documents or under any other instrument or agreement referred to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Kasper a S L LTD)
Interim Order. At the time of the initial Credit Event, the Agents, the Fronting Bank and the DIP Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit C (athe "Interim Order") The approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Section 2.24 which Interim Order (i) shall have been entered with the consent or non-objection of a preponderance of the Pre-Petition Lenders (as determined by the Co-Lead Arrangers in their sole discretion) upon an application or motion of the Loan Parties reasonably satisfactory in form and substance to the Co-Lead Arrangers, on such prior notice to such parties (including the Pre-Petition Lenders) as may in each case be reasonably satisfactory to the Co-Lead Arrangers, (ii) shall authorize extensions of credit in amounts satisfactory to the Co-Lead Arrangers, (iii) shall approve the payment by the Loan Parties of all of the Fees referred to in Sections 2.4(a) and 2.5(aSection 2.20, (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by the Loan Parties of any cash collateral in which any Pre-Petition Lender under the Pre-Petition Facilities may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for the manner in which such notice is to be provided;
(ii) that:
(A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Petition Date) at the applicable non-default base rates plus applicable margins provided for pursuant to the PCS Arrangement Resolution Pre-Petition Facilities; provided, that, as additional adequate protection consideration for Pre-Petition Lenders under the Frontier Credit Agreement (as defined in the Interim Order) to be placed before consent to the PCS Meeting priming of their liens and the use of their Cash Collateral, the payment described in this clause (A) shall be twodetermined by applying the applicable non-thirds default base rate plus applicable margin plus 40 basis points, (66B) subject to the Carve-2/3%Out a Superpriority Claim as contemplated by Section 507(b) of the votes cast Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agents, the Fronting Banks and the DIP Lenders and the Permitted Inter-Group Debt, (C) subject to the Carve-Out a Lien on substantially all of the PCS Arrangement Resolution assets of Loan Parties (or, in the case of any Holding Company Guarantor, its Holding Company Specified Assets) having a priority immediately junior to the priming and other Liens granted in favor of the Agent, the Fronting Banks and the DIP Lenders hereunder and under the other Loan Documents and the Liens securing the Permitted Inter-Group Debt, (D) the payment on a current basis of the reasonable fees and disbursements (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) incurred by PCS Shareholders present the respective agents under the Pre-Petition Facilities (including any unpaid pre-petition fees and expenses) and the continuation of the payment to such agents on a current basis of the administration fees that are provided for under the respective Pre-Petition Facilities and (vi) shall not have been stayed, reversed, modified or amended in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) any respect; and, if required the Interim Order is the subject of a pending appeal in any respect, neither the extension of any credit pursuant to a Credit Event nor the performance by any Loan Party of any of their respective obligations under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person any Loan Documents or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required under any other instrument or agreement referred to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting therein shall be two-thirds (66-2/3%) the subject of a presently effective stay pending appeal. The adequate protection liens and the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights priority claims granted to the registered PCS Shareholders and Pre-Petition Lenders as contemplated by the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect Interim Order shall be limited to an amount equal to the presentation diminution, from and after the date of the joint application to the Court for the Final Order;
(viii) confirmation filing of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation , in the value of their pre-petition collateral, including, without limitation, the diminution in value of the record date (which shall be the same day Pre-Petition Liens as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) a consequence of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablypriming liens contemplated hereby.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Olympus Communications Lp)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Lenders shall have received satisfactory evidence of the entry of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe "INTERIM ORDER") The approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Section 2.23 which Interim Order (i) shall have been entered, with the consent or non-objection of a preponderance (as determined by the Agent) of the Existing Lenders, upon an application or motion of the Borrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the Existing Lenders) as may in each case be reasonably satisfactory to the Agent, (ii) shall authorize extensions of credit in amounts not in excess of $25,000,000 in the aggregate, (iii) shall approve the payment by the Borrower of all of the Fees referred to in Sections 2.4(a) and 2.5(aSection 2.19, (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for the manner in which such notice is to be provided;
(ii) that:
(A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the rates at which such interest and fees were being paid pursuant to the Existing Agreement for the PCS Arrangement Resolution period immediately prior to the Filing Date (the payments described in this clause to be placed before without prejudice to the PCS Meeting shall be two-thirds (66-2/3%) rights of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled any Existing Lender to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by assert a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval claim for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Lenders hereunder and under the other Loan Documents, (D) the payment on a current and monthly basis of the fees and disbursements of respective professionals (including, but not limited to, the fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agent on a current basis of the joint application to administration fees that are provided for under the Court for Existing Agreement, (E) pending the entry of the Final Order;
, the receipt of a weekly budget showing the Borrower's use of cash collateral in which any Existing Lender under the Existing Agreement may have an interest, (viiiF) confirmation reasonable access during normal business hours by ▇▇▇▇▇▇▇ and Marsal ("A&M"), or any successor advisor as the representative of the record date for Pre-Petition Agent, to all documentation, places of business, officers, consultants and employees of the purposes Borrower, (G) receipt of determining such financial information concerning the PCS Shareholders entitled Borrower and the Guarantors' cash flow, business plan and other aspects of its operations as A&M or such successor may reasonably request from time to receive time, all without material disruption to the operation of the business of any of the Borrower or the Guarantors, and vote at (H) the PCS Meeting receipt of all financial statements, borrowing base certificates and other reports that are furnished to the Lenders and such other protection as agreed between the Borrower, the Guarantors and the Existing Lenders; and (vi) shall not have been vacated, stayed, reversed, modified or amended in accordance with 40 any respect; and, if the Interim Order;
(ix) confirmation Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date (which Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Polymer Group Inc)
Interim Order. (a) The application referred to At the time of the making of the initial Extension of Credit, and in Sections 2.4(a) and 2.5(a) any event no later than five days after the Petition Date, the Administrative Agent shall request that have received a copy of the Interim Order provideapproving the Loan Documents and granting the Superpriority Claim status and Liens described in subsections 2.8 and 2.9 and finding that the Lenders are extending credit to the Borrower in good faith within the meaning of Section 364(e) of the Bankruptcy Code, among other things:
which Interim Order shall (i) for have been entered with the class consent or non-objection of Persons to whom notice is to be provided in respect a majority (as determined by the Administrative Agent) of the Arrangementlending institutions party to the Prepetition Credit Facility and on such prior notice to such parties (including without limitation, the PCS Meeting and Prepetition Secured Parties) as may be reasonably satisfactory to the Agrium Meeting and for the manner in which such notice is to be provided;
Administrative Agent, (ii) that:
(A) be in form and substance reasonably satisfactory to the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andAdministrative Agent, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) authorize extensions of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present credit in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority amounts not in excess of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
$[100,000,000] (iv) that authorize the PCS Meeting may be adjourned or postponed from time to time use of Cash Collateral under the Prepetition Credit Facility and provide for adequate protection in accordance with the terms of this Agreement without the need for additional approval favor of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders Prepetition Secured Parties as set forth in subsection 2.8(c), (v) contain customary provisions regarding challenges to the Plan prepetition claims and liens of Arrangement;
the Prepetition Secured Parties, Section 506(c) of the Bankruptcy Code and other matters, (vi) approve the payment by the Borrower of all Fees, (vii) for the notice requirements with respect to the presentation approve repayment in full of the joint application to 2008 Revolving Loans, the Court for 2008 Swingline Loans, the Final Order;
2008 Reimbursement Obligations and the New Term Loans under the Prepetition Credit Facility, (viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material be in full force and vote at the PCS Meeting in accordance with the Interim Order;
effect and (ix) confirmation not have been stayed, reversed, vacated, rescinded, modified or amended in any respect and, if the Interim Order is the subject of a pending appeal in any respect, none of the record date (which making of such Extension of Credit, the grant of Liens and Superpriority Claims pursuant to subsection 2.8 or 2.9 or the performance by the Loan Parties of any of their respective obligations hereunder or under the other Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Credit and Guarantee Agreement
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Lenders shall have received a copy of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe “Interim Order”) The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:Order
(i) for the class of Persons to whom notice is to be provided in respect shall have been entered, upon an application or motion of the ArrangementBorrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the PCS Meeting Existing Lenders) as may in each case be reasonably satisfactory to the Agent and upon consent or non-objection of a preponderance of the Agrium Meeting and for financial institutions, as determined by the manner in which such notice is Agent, that are parties to be provided;
the Existing Agreements, (ii) that:
shall authorize extensions of credit in amounts not in excess of an amount to be set forth in the Interim Order, which shall be satisfactory to the Lenders until the entry of the Final Order hereinafter referred to, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreements may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Existing 2002 Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreements or to the rights of Arrangement;
the Borrower to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Lenders hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agents (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agents on a current basis of the joint application to administration fees that are provided for under the Court for the Final Order;
Existing Agreements and (viiiE) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters protection as agreed between the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewithBorrower, the Court will be required to approve Guarantors and the substantive Existing Lenders, including financial reporting requirements and procedural fairness receipt of asset sale proceeds after the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.Escrow Payout Date,
Appears in 1 contract
Interim Order. At the time of the initial Credit Event, the Agents, the Fronting Bank and the DIP Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit C (athe "Interim Order") The approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Section 2.22 which Interim Order (i) shall have been entered with the consent or non-objection of a preponderance of the Pre-Petition Lenders (as determined by the Co-Lead Arrangers in their sole discretion) upon an application or motion of the Loan Parties reasonably satisfactory in form and substance to the Co-Lead Arrangers, on such prior notice to such parties (including the Pre-Petition Lenders) as may in each case be reasonably satisfactory to the Co-Lead Arrangers, (ii) shall authorize extensions of credit in amounts satisfactory to the Co-Lead Arrangers, (iii) shall approve the payment by the Loan Parties of all of the Fees referred to in Sections 2.4(a) and 2.5(aSection 2.18, (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by the Loan Parties of any cash collateral in which any Pre-Petition Lender under the Pre-Petition Facilities may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for the manner in which such notice is to be provided;
(ii) that:
(A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Petition Date) at the applicable non-default base rates plus applicable margins provided for pursuant to the PCS Arrangement Resolution Pre-Petition Facilities; provided, that, as additional adequate protection consideration for Pre-Petition Lenders under the Frontier Credit Agreement (as defined in the Interim Order) to be placed before consent to the PCS Meeting priming of their liens and the use of their Cash Collateral, the payment described in this clause (A) shall be twodetermined by applying the applicable non-thirds default base rate plus applicable margin plus 40 basis points, (66B) subject to the Carve-2/3%Out a Superpriority Claim as contemplated by Section 507(b) of the votes cast Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agents, the Fronting Banks and the DIP Lenders and the Permitted Inter-Group Debt, (C) subject to the Carve-Out a Lien on substantially all of the PCS Arrangement Resolution assets of Loan Parties (or, in the case of any Holding Company Guarantor, its Holding Company Specified Assets) having a priority immediately junior to the priming and other Liens granted in favor of the Agent, the Fronting Banks and the DIP Lenders hereunder and under the other Loan Documents and the Liens securing the Permitted Inter-Group Debt, (D) the payment on a current basis of the reasonable fees and disbursements (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) incurred by PCS Shareholders present the respective agents under the Pre-Petition Facilities (including any unpaid pre-petition fees and expenses) and the continuation of the payment to such agents on a current basis of the administration fees that are provided for under the respective Pre-Petition Facilities and (vi) shall not have been stayed, reversed, modified or amended in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) any respect; and, if required the Interim Order is the subject of a pending appeal in any respect, neither the extension of any credit pursuant to a Credit Event nor the performance by any Loan Party of any of their respective obligations under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person any Loan Documents or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required under any other instrument or agreement referred to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting therein shall be two-thirds (66-2/3%) the subject of a presently effective stay pending appeal. The adequate protection liens and the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights priority claims granted to the registered PCS Shareholders and Pre-Petition Lenders as contemplated by the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect Interim Order shall be limited to an amount equal to the presentation diminution, from and after the date of the joint application to the Court for the Final Order;
(viii) confirmation filing of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation , in the value of their pre-petition collateral, including, without limitation, the diminution in value of the record date (which shall be the same day Pre-Petition Liens as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) a consequence of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablypriming liens contemplated hereby.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Frontiervision Holdings Capital Corp)
Interim Order. The interim order approving the DIP Facility, which shall include the terms hereof and shall otherwise be in form and substance reasonably acceptable to the DIP Agent and the DIP Lender (a) The application referred to in Sections 2.4(a) and 2.5(a) shall request that the “Interim Order provideOrder”), shall, among other things, authorize and approve:
(i) for i. the class of Persons terms set forth in this Term Sheet and the entry into the Commitment Letter to whom notice which this Term Sheet is to be provided in respect attached;
ii. the Initial Draw;
iii. the making of the Arrangement, the PCS Meeting and the Agrium Meeting and for the manner in which such notice is to be providedDIP Loans;
(ii) that:
(A) iv. the requisite approval for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds (66-2/3%) granting of the votes cast on superpriority claims and liens against the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions Debtors and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time their assets in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders Term Sheet and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements DIP Documents with respect to the presentation DIP Collateral;
v. the payment of all fees and expenses (including the fees and expenses of outside counsel and financial advisors) required to be paid to the DIP Agent and the DIP Lender as described herein under the heading “Indemnification and Reimbursement of Expenses” by the Debtors; it being acknowledged and agreed that all such fees and expenses may and will be withheld from the Initial Draw for direct payment thereof (to the DIP Agent, the DIP Lenders or such counsel and financial advisors) from such Initial Draw (without reducing the obligations of the joint application Debtor to repay the entire amount of the Initial Draw); provided, however, notwithstanding anything to the Court for contrary, fees and expenses incurred by the Final Order;DIP Agent and the DIP Lender prior to the Interim Order and reimbursable pursuant to this clause (v) shall be limited to the fees and expenses of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the DIP Agent and the DIP Lender.
(viii) confirmation vi. the termination of the record date for Existing DIP Credit Agreement and related documents and all liens granted thereunder (and/or the purposes interim order approving such Existing DIP Credit Agreement) as security therefor; and
vii. the calculations and payment of determining the PCS Shareholders entitled Monthly DIP Agent Fee, the Upfront Premium, the Extension Fee and the Exit Premium, which fee payments shall not be subject to receive material reduction, setoff or recoupment, and vote at the PCS Meeting in accordance with shall be fully earned upon entry of the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Loan and Security Agreement (Core Scientific, Inc./Tx)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A-1 (athe "Interim Order") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:
(i) shall have been entered, with the consent or non-objection of a preponderance, as determined by the Agent in its sole judgment, of the Pre-Petition Lenders, upon an application or motion of the Borrower and the other Debtors reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the Pre-Petition Lenders) as may in each case be reasonably satisfactory to the Agent, (ii) shall authorize extensions of credit in amounts satisfactory to the Agent, (iii) shall approve the payment by the Borrower of all of the Fees, (iv) shall be in full force and effect, (v) shall have authorized as adequate protection for and to the extent of any diminution in value of the Pre-Petition Lenders' interest in the Pre-Petition Collateral after the Filing Date (A) monthly payments in an amount equal to all interest, letter of credit fees and other fees and payments (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Pre-Petition Agreement and existing hedge agreements entered into in connection with the Pre-Petition Obligations (the payments described in this clause to be without prejudice to the rights of any Pre-Petition Lender to assert a claim in the Cases for the class payment of Persons additional interest calculated at any other applicable rates of interest, or on any other basis, set forth in the Pre-Petition Agreement), (B) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code having a priority over all administrative expenses of the kind specified in Sections 503(b) and 507(b) of the code, junior only to whom notice is to be provided the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Lenders in respect of the ArrangementLoans (and the Carve-Out); (C) the payment on a current basis of the reasonable fees and expenses (including, but not limited to, the PCS Meeting reasonable fees and disbursements of external counsel and third-party consultants, including financial consultants, and auditors) incurred by the Pre-Petition Agent and the Agrium Meeting Pre-Petition Lenders, to the extent provided in the Pre-Petition Agreement, (including any unpaid pre-petition fees and for expenses) and (D) the manner payment to the Pre-Petition Lenders of the first $10,000,000 of Net Cash Proceeds of sale or sales occurring on or after the Filing Date, outside the ordinary course of business, of assets in which such notice is existence on the Filing Date to be provided;
(ii) that:
(A) applied in permanent repayment of the requisite approval for principal amount due and owing under the PCS Arrangement Resolution Pre-Petition Agreement in the order set forth therein, provided that to be placed before the PCS Meeting extent that any such Net Cash Proceeds constitute proceeds of sale of any property, assets or stock of a Non-Debtor Guarantor, such Net Cash Proceeds shall be two-thirds (66-2/3%) of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andapplied first, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with Section 2.13(d) hereof to repay Borrowings under the terms Agreement loaned or otherwise paid over by the Borrower or other Debtor to such Non-Debtor Guarantor and cash collateralize Letters of this Credit issued under the Agreement without the need for additional approval in support of the Court;
(v) that obligations and operations of such Non-Debtor Guarantor, second, to repay the Agrium Meeting may be adjourned or postponed from time Pre-Petition Obligations as provided above, and third, to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights make mandatory prepayments to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan of Arrangement;
(vii) for the notice requirements with respect to the presentation of the joint application to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonably.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be extent required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.under Section
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Thermadyne Holdings Corp /De)
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Lenders shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A (athe "Interim Order") The approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Section 2.23 which Interim Order (i) shall have been entered, with the consent or non-objection of a preponderance (as determined by the Agent) of the Pre-Petition Lenders, upon an application or motion of the Borrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the Pre-Petition Lenders) as may in each case be reasonably satisfactory to the Agent, (ii) shall authorize extensions of credit in amounts not in excess of $10,000,000 in the aggregate, (iii) shall approve the payment by the Borrower of all of the Fees referred to in Sections 2.4(a) and 2.5(aSection 2.19, (iv) shall request that be in full force and effect, (v) shall have authorized the Interim Order provideuse by the Borrower and Holdings of any cash collateral in which any Pre-Petition Lender under the Pre-Petition Credit Agreement may have an interest and shall have provided, among other things:
(i) as adequate protection for the class use of Persons to whom notice is to be provided in respect of the Arrangement, the PCS Meeting such cash collateral and the Agrium Meeting and priming contemplated hereby, for the manner in which such notice is to be provided;
(ii) that:
(A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates provided for pursuant to the Pre-Petition Credit Agreement (the payments described in this clause to be without prejudice to the rights of any Pre-Petition Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Pre-Petition Credit Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (B) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Lenders (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and Holdings having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Lenders hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the members of the Bank Steering Committee in their capacity as such and the continuation of the payment on a current basis of the administration and letter of credit fees that are provided for under the Pre-Petition Credit Agreement, and (E) such other protection as agreed between the Borrower, the Guarantors and the Pre-Petition Lenders, (vi) shall contain customary provisions regarding challenges to the pre-petition claims and liens of the parties to be primed under clause (v) above, Section 506(c) of the Bankruptcy Code and other matters; and (vii) for shall not have been vacated, stayed, reversed, modified or amended in any respect; and, if the notice requirements with respect to Interim Order is the presentation subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the joint application Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to the Court for the Final Order;
(viii) confirmation of the record date for the purposes of determining the PCS Shareholders entitled to receive material and vote at the PCS Meeting in accordance with the Interim Order;
(ix) confirmation of the record date (which herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Interim Order. At the time of the making of the initial Loans or at the time of the issuance of the initial Letters of Credit, whichever first occurs, the Agent and the Banks shall have received a certified copy of an order of the Bankruptcy Court in substantially the form of Exhibit A-1 (athe "Interim Order") The application referred to approving the Loan Documents and granting the Superpriority Claim status and senior priming and other Liens described in Sections 2.4(a) and 2.5(a) shall request that the Section 2.23 which Interim Order provide, among other things:
(i) for shall have been entered, with the class consent or non-objection of Persons to whom notice is to be provided in respect a preponderance (as determined by the Agent) of the ArrangementExisting Lenders upon an application or motion of the Borrower reasonably satisfactory in form and substance to the Agent, on such prior notice to such parties (including the PCS Meeting and Existing Lenders) as may in each case be reasonably satisfactory to the Agrium Meeting and for the manner in which such notice is to be provided;
Agent, (ii) that:
shall authorize extensions of credit in amounts satisfactory to the Agent, (iii) shall approve the payment by the Borrower of all of the Fees set forth in Section 2.19, (iv) shall be in full force and effect, (v) shall have authorized the use by the Borrower and the Guarantors of any cash collateral in which any Existing Lender under the Existing Agreement may have an interest and shall have provided, as adequate protection for the use of such cash collateral and the priming contemplated hereby, for (A) the requisite approval monthly payment of current interest and letter of credit fees (including the payment on the Closing Date of any such interest and fees that are accrued and unpaid as of the Filing Date) at the applicable non-default rates (including LIBOR pricing options) provided for pursuant to the Existing Agreement (the payments described in this clause to be without prejudice to the rights of any Existing Lender to assert a claim for the PCS Arrangement Resolution to be placed before the PCS Meeting shall be two-thirds payment of additional interest and letters of credit fees calculated at any other applicable rates of interest (66-2/3%) of the votes cast including, without limitation, at any default rates), or on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting (such that each PCS Shareholder is entitled to one vote for each PCS Share held) andany other basis, if required under Canadian Securities Laws, by a majority of the votes cast on the PCS Arrangement Resolution by PCS Shareholders present in person or by proxy at the PCS Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of PCS, including quorum requirements and all other matters, shall apply in respect of the PCS Meeting;
(iii) that:
(A) the requisite approval for the Agrium Arrangement Resolution to be placed before the Agrium Meeting shall be two-thirds (66-2/3%) of the votes cast on the Agrium Arrangement Resolution by Agrium Securityholders (voting as a single class) present in person or by proxy at the Agrium Meeting (such that each Agrium Securityholder is entitled to one vote for each Agrium Share held and one vote for each Agrium Share underlying an Agrium Voting Option held) and, if required under Canadian Securities Laws, by a majority of the votes cast on the Agrium Arrangement Resolution by Agrium Shareholders present in person or by proxy at the Agrium Meeting after excluding the votes of those Persons whose votes are required to be excluded under MI 61-101;
(B) that, in all other respects, the terms, restrictions and conditions of the constating documents of Agrium, including quorum requirements and all other matters, shall apply in respect of the Agrium Meeting;
(iv) that the PCS Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(v) that the Agrium Meeting may be adjourned or postponed from time to time in accordance with the terms of this Agreement without the need for additional approval of the Court;
(vi) for the grant of the Dissent Rights to the registered PCS Shareholders and the registered Agrium Shareholders as set forth in the Plan Existing Agreement or to the rights of Arrangement;
the Borrower to contest such assertion), (viiB) a superpriority claim as contemplated by Section 507(b) of the Bankruptcy Code immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code held by the Agent and the Banks (without the requirement to file any motion or pleading or to make any demand), (C) a Lien on substantially all of the assets of the Borrower and the Guarantors having a priority immediately junior to the priming and other Liens granted in favor of the Agent and the Banks hereunder and under the other Loan Documents, (D) the payment on a current basis of the reasonable fees and disbursements of respective professionals (including, but not limited to, the reasonable fees and disbursements of counsel and internal and third-party consultants, including financial consultants, and auditors) for the notice requirements with respect Pre-Petition Agent (including the payment on the Closing Date or as soon thereafter as is practicable of any unpaid pre-petition fees and expenses) and the continuation of the payment to the presentation Pre-Petition Agent on a current basis of the joint application administration fees that are provided for under the Existing Agreement, (E) the receipt of all financial statements and other reports that are furnished to the Court for Banks, (F) so long as no Event of Default and no condition which would constitute an Event of Default with the Final Order;
(viii) confirmation giving of notice or lapse of time or both shall exist, the payment of 50% of the record date for Net Proceeds of asset sales that are permitted by clause (iv) of Section 6.11, and (G) such other protection as agreed between the purposes of determining Borrower, the PCS Shareholders entitled to receive material Guarantors and vote at the PCS Meeting Existing Lenders, and (vi) shall not have been vacated, stayed, reversed, modified or amended in accordance with any respect; and, if the Interim Order;
(ix) confirmation Order is the subject of a pending appeal in any respect, neither the making of such Loans nor the issuance of such Letter of Credit nor the performance by the Borrower or any of the record date (which Guarantors of any of their respective obligations hereunder or under the Loan Documents or under any other instrument or agreement referred to herein shall be the same day as the record date referred to in Section 2.6(a)(viii)) for the purposes subject of determining the Agrium Securityholders entitled to receive material and vote at the Agrium Meeting in accordance with the Interim Order;
(x) that the record date for PCS Shareholders entitled to notice of and to vote at the PCS Meeting will not change in respect of any adjournment(s) or postponement(s) of the PCS Meeting;
(xi) that the record date for Agrium Securityholders entitled to notice of and to vote at the Agrium Meeting will not change in respect of any adjournment(s) or postponement(s) of the Agrium Meeting; and
(xii) for such other matters as the Parties may agree in writing, each acting reasonablya presently effective stay pending appeal.
(b) In the application referred to in Sections 2.4(a) and 2.5(a), PCS and Agrium shall inform the Court that the Parties intend to rely on the Section 3(a)(10) Exemption for the issuance of the New Parent Shares pursuant to the Arrangement and that, in connection therewith, the Court will be required to approve the substantive and procedural fairness of the terms and conditions of the Arrangement to each Person to whom New Parent Shares will be issued. Each Person to whom New Parent Shares will be issued on completion of the Arrangement will be given adequate notice advising them of their right to attend and appear before the Court at the hearing of the Court for the Final Order and providing them with adequate information to enable such Person to exercise such right.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Burlington Industries Inc /De/)