Conditions Precedent to Issuance of the Securities. The obligation of each Class 6 Creditor to acquire Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Subsidiary Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions: (a) The representations and warranties of the Company and the Subsidiary Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Subsidiary Guarantors and their respective officers made in any certificates delivered pursuant to this Indenture shall be true and correct on and as of the Closing Date. (b) The Administrative Agent or its counsel shall have received copies of each of the Credit Agreements and the Security Documents, in each case duly executed and delivered by each party thereto. (c) The Administrative Agent shall have received (i) a favorable written opinion (addressed to the Administrative Agent, the Collateral Agent and the Class 6 Creditors and dated the Closing Date) of Jones, Day, Reavis & Pogue, counsel for the Company, substantially i▇ ▇▇▇ form o▇ ▇▇▇▇x A-▇, ▇nd (ii) to the extent such opinion is requested by the Collateral Agent in connection with the Credit Agreements, a favorable written opinion of local counsel in each jurisdiction where a Mortgaged Property is located, substantially in the form of Annex A-2, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the Company and the Subsidiary Guarantors, this Indenture, the Security Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions. (d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each of the Company and its Subsidiaries, the authorization of the Transactions and any other legal matters relating to the Company and the Subsidiary Guarantors, the Security Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel. (e) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company (or an executive officer of the Company performing a similar function), (i) confirming that such officer has carefully reviewed the Disclosure Statement and, to the best knowledge of such officer, the representation set forth in 13.01(l) hereof is true and correct, (ii) confirming that the representations and warranties of the Company and the Subsidiary Guarantors in this Indenture are true and correct and that the Company and Subsidiary Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraph (p) below. (f) The Administrative Agent and the Class 6 Creditors shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any of the Company or the Subsidiary Guarantors hereunder or under any Security Document. (g) The Collateral and Guarantee Requirement shall have been satisfied and the Collateral Agent shall have received (i) a completed Perfection Certificate dated the Closing Date and signed by a Financial Officer or chief legal officer of the Company, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Company and the Subsidiary Guarantors in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 4.14 or have been released, (ii) evidence that the lockbox and concentration account arrangements contemplated by the Third Priority Collateral Agreement remain in effect, (iii) a copy of the Intercreditor Agreement duly executed and delivered by each party thereto and (iv) to the extent requested by the Collateral Agent pursuant to the Credit Agreements, satisfactory legal opinions, title insurance policies, current certified surveys, evidence of zoning and other legal compliance, certificate of occupancy and other permits with respect to the Mortgaged Property. (h) The Collateral Agent shall have received evidence that the insurance required by the Security Documents is in effect. (i) The Administrative Agent shall have received from the Company (i) audited consolidated balance sheets and related statements of operations, stockholders' equity and cash flows for the Company as of and for the fiscal years ended December 31, 1999, December 31, 2000, and December 31, 2001, and (ii) unaudited consolidated balance sheets and related statements of operations, stockholders' equity and cash flows for the Company for (x) the fiscal quarters ended March 31, 2002, June 30, 2002, and September 30, 2002, and (y) each fiscal month after the most recent fiscal period for which financial statements were received by the Administrative Agent as described above and ended at least 30 days prior to the Closing Date, in each case prepared in accordance with GAAP and, in the case of the financial statements delivered pursuant to clause (ii), which financial statements shall not be materially inconsistent with the financial statements or forecasts previously delivered to the Administrative Agent. In addition, the Administrative Agent shall have received a pro forma consolidated balance sheet for the Company as of the Closing Date after giving effect to the Transactions, which shall not be materially inconsistent with the forecasts previously provided to the Administrative Agent. (j) Simultaneously with or prior to the Closing Date, (i) not more than [$240,050,000] shall be outstanding under the Senior Secured Term Loan Credit Agreement and (ii) not more than $[50,000,000] shall be outstanding under the Senior Secured Revolving Credit Agreement. The Administrative Agent shall have received copies of the Credit Agreements certified by a Financial Officer as complete and correct. (k) The Court shall have entered the Order, which shall be satisfactory in form and substance to the Administrative Agent and (i) the Order shall be in full force and effect, (ii) the Order shall be subject to any stay and there shall not have been entered by the Court any reversal, modification or vacatur, in whole or in part, of the Order, (iii) all the conditions set forth in the Plan to confirmation of the Plan and to the effective date of the Plan shall have been satisfied or waived in accordance with the Plan, (iv) all other requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby or thereby to the extent required or deemed advisable by the Administrative Agent and its counsel (and such approvals shall be in full force and effect and all appeal periods with respect thereto shall have expired) and (v) the Transactions shall be consummated in accordance with the terms thereof described in the Disclosure Statement. (l) Simultaneously with or prior to the Closing Date, Old WKI and the Old Subsidiaries shall have emerged from the Chapter 11 proceedings and "substantial consummation" of the Plan (within the meaning of Section 11.01(2) of the Bankruptcy Code) shall have occurred (without giving effect to any waivers, amendments or other modifications to the Plan not approved by the Administrative Agent). (m) The Administrative Agent shall have received (i) a detailed business plan of the Company and its Subsidiaries for the remainder of the [2002 fiscal year and the] 2003 fiscal year and (ii) financial projections for the Company and its Subsidiaries for [the remainder of the 2002 fiscal year and for] each fiscal year from 2003 through 2007 prepared in accordance with GAAP and in good faith by the Company under assumptions believed to be reasonable at the time made and on the Closing Date, in each case in form and substance reasonably satisfactory to the Administrative Agent. (n) There shall be no litigation, arbitration or administrative proceeding or consent decree that would reasonably be expected, after giving effect to the Transactions and the other transactions contemplated thereby, to have a Material Adverse Effect or have a material adverse effect on the ability of the parties to consummate the Transactions and the other transactions contemplated thereby. (o) The consummation of the Transactions and the other transactions contemplated thereby shall not (i) violate any applicable law, statute, consent decree, rule or regulation, (ii) conflict with, or result in a default or event of default under, any material agreement of the Company or any Subsidiary or (iii) give rise to a right to require any payment to be made by the Company or any Subsidiary or result in the creation of any Lien (other than Permitted Liens) under any agreement evidencing any indebtedness of the Company or any Subsidiary. (p) There shall not have occurred a material adverse change in the business, operations, properties, assets, condition (financial or otherwise), liabilities (including contingent liabilities) or prospects of the Company and its Subsidiaries, taken as a whole, since December 31, 2001, other than any material adverse change disclosed in the Plan or the Disclosure Statement. (q) The Securities shall have been approved by the NASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC. (r) Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in the Plan will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Indenture shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
Appears in 1 contract
Sources: Indenture (Wki Holding Co Inc)
Conditions Precedent to Issuance of the Securities. The -------------------------------------------------- obligation of each Class 6 Creditor to acquire Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Subsidiary Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) The representations and warranties of the Company and the Subsidiary Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Subsidiary Guarantors and their respective officers made in any certificates delivered pursuant to this Indenture shall be true and correct on and as of the Closing Date.
(b) The Administrative Agent or its counsel shall have received copies of each of the Credit Agreements and the Security Documents, in each case duly executed and delivered by each party thereto.
(c) The Administrative Agent shall have received (i) a favorable written opinion (addressed to the Administrative Agent, the Collateral Agent and the Class 6 Creditors and dated the Closing Date) of Jones, Jones Day, Reavis & Pogue, counsel for the Company, substantially iin the form ▇▇ ▇▇▇ form o▇ ▇▇▇▇x A-▇nnex A-1, ▇nd and (ii) to the extent such opinion is requested by the Collateral Agent in connection with the Credit Agreements, a favorable written opinion of local counsel in each jurisdiction where a Mortgaged Property is located, substantially in the form of Annex A-2, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the Company and the Subsidiary Guarantors, this Indenture, the Security Documents or the Transactions as the Administrative Agent shall reasonably request. The Company hereby requests such counsel to deliver such opinions.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each of the Company and its Subsidiaries, the authorization of the Transactions and any other legal matters relating to the Company and the Subsidiary Guarantors, the Security Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the Chief Executive Officer of the Company (or an executive officer of the Company performing a similar function), (i) confirming that such officer has carefully reviewed the Disclosure Statement and, to the best knowledge of such officer, the representation set forth in 13.01(l) hereof is true and correct, (ii) confirming that the representations and warranties of the Company and the Subsidiary Guarantors in this Indenture are true and correct and that the Company and Subsidiary Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraph (p) below.
(f) The Administrative Agent and the Class 6 Creditors shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any of the Company or the Subsidiary Guarantors hereunder or under any Security Document.
(g) The Collateral and Guarantee Requirement shall have been satisfied and the Collateral Agent shall have received (i) a completed Perfection Certificate dated the Closing Date and signed by a Financial Officer or chief legal officer of the Company, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Company and the Subsidiary Guarantors in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Collateral Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 4.14 or have been released, (ii) evidence that the lockbox and concentration account arrangements contemplated by the Third Priority Collateral Agreement remain in effect, (iii) a copy of the Intercreditor Agreement duly executed and delivered by each party thereto and (iv) to the extent requested by the Collateral Agent pursuant to the Credit Agreements, satisfactory legal opinions, title insurance policies, current certified surveys, evidence of zoning and other legal compliance, certificate certificates of occupancy and other permits with respect to the Mortgaged Property.
(h) The Collateral Agent shall have received evidence that the insurance required by the Security Documents is in effect.
(i) The Administrative Agent shall have received from the Company (i) audited consolidated balance sheets and related statements of operations, stockholders' equity and cash flows for the Company as of and for the fiscal years ended December 31, 1999, December 31, 2000, and December 31, 2001, and (ii) unaudited consolidated balance sheets and related statements of operations, stockholders' equity and cash flows for the Company for (x) the fiscal quarters ended March 31, 2002, June 30, 2002, and September 30, 2002, and (y) each fiscal month after the most recent fiscal period for which financial statements were received by the Administrative Agent as described above and ended at least 30 45 days prior to the Closing Date, in each case prepared in accordance with GAAP and, in the case of the financial statements delivered pursuant to clause (ii), which financial statements shall not be materially inconsistent with the financial statements or forecasts previously delivered to the Administrative Agent. In addition, the Administrative Agent shall have received a pro forma consolidated balance sheet for the Company as of the Closing Date after giving effect to the Transactions, which shall not be materially inconsistent with the forecasts previously provided to the Administrative Agent.
(j) Simultaneously with or prior to the Closing Date, (i) not more than [$240,050,000] 240,050,000 shall be outstanding under the Senior Secured Term Loan Credit Agreement and (ii) not more than $[50,000,000] 75,000,000 shall be outstanding under the Senior Secured Revolving Credit Agreement. The Administrative Agent shall have received copies of the Credit Agreements certified by a Financial Officer as complete and correct.
(k) The Court shall have entered the Order, which shall be satisfactory in form and substance to the Administrative Agent and (i) the Order shall be in full force and effect, (ii) the Order shall not be subject to any stay and there shall not have been entered by the Court any reversal, modification or vacatur, in whole or in part, of the Order, (iii) all the conditions set forth in the Plan to confirmation of the Plan and to the effective date of the Plan shall have been satisfied or waived in accordance with the Plan, (iv) all other requisite Governmental Authorities and third parties shall have approved or consented to the Transactions and the other transactions contemplated hereby or thereby to the extent required or deemed advisable by the Administrative Agent and its counsel (and such approvals shall be in full force and effect and all appeal periods with respect thereto shall have expired) and (v) the Transactions shall be consummated in accordance with the terms thereof described in the Disclosure Statement.
(l) Simultaneously with or prior to the Closing Date, Old WKI and the Old Subsidiaries shall have emerged from the Chapter 11 proceedings and "substantial consummation" of the Plan (within the meaning of Section 11.01(2) of the Bankruptcy Code) shall have occurred (without giving effect to any waivers, amendments or other modifications to the Plan not approved by the Administrative Agent).
(m) The Administrative Agent shall have received (i) a detailed business plan of the Company and its Subsidiaries for the remainder of the [2002 fiscal year and the] 2003 fiscal year and (ii) financial projections for the Company and its Subsidiaries for [the remainder of the 2002 fiscal year and for] each fiscal year from 2003 through 2007 prepared in accordance with GAAP and in good faith by the Company under assumptions believed to be reasonable at the time made and on the Closing Date, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(n) There shall be no litigation, arbitration or administrative proceeding or consent decree that would reasonably be expected, after giving effect to the Transactions and the other transactions contemplated thereby, to have a Material Adverse Effect or have a material adverse effect on the ability of the parties to consummate the Transactions and the other transactions contemplated thereby.
(o) The consummation of the Transactions and the other transactions contemplated thereby shall not (i) violate any applicable law, statute, consent decree, rule or regulation, (ii) conflict with, or result in a default or event of default under, any material agreement of the Company or any Subsidiary or (iii) give rise to a right to require any payment to be made by the Company or any Subsidiary or result in the creation of any Lien (other than Permitted Liens) under any agreement evidencing any indebtedness of the Company or any Subsidiary.
(p) There shall not have occurred a material adverse change in the business, operations, properties, assets, condition (financial or otherwise), liabilities (including contingent liabilities) or prospects of the Company and its Subsidiaries, taken as a whole, since December 31, 2001, other than any material adverse change disclosed in the Plan or the Disclosure Statement.
(q) The Securities shall have been approved by the NASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC.
(r) Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Company as described in the Plan will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Indenture shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Administrative Agent and its counsel.,
Appears in 1 contract
Sources: Indenture (Wki Holding Co Inc)