Third Amendment Effective Date. This Amendment will become effective on April 19, 2002 or the first Business Day thereafter as of which each of the following conditions precedent has been satisfied (the "Third Amendment Effective Date"): (a) The Agent has received from the Company and each of the Banks a duly executed original or facsimile counterpart of this Amendment (any such facsimiles to be promptly followed by the originals thereof). (b) The "Third Amendment Effective Date" as defined in the Third Amendment to the Facility B Credit Agreement of even date herewith has occurred or is occurring contemporaneously as of the Third Amendment Effective Date hereunder. (c) The Agent has received the opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the Company, and Ball ▇▇▇▇▇ LLP, as special counsel to the Company and the Partner Entities (other than Fremont), addressed to the Agent and the Banks, substantially in the forms attached as Exhibits B and C hereto. (d) The Company shall have paid to the Agent, for application to the payment and/or prepayment of the Facility A Loans and the Facility B Loans, an amount equal to $64,734,356. (e) The Company shall have paid to the Agent (or to such party as the Agent directs), the reasonable legal and non-legal expenses incurred by the Banks through the date hereof in connection with this Third Amendment including reasonable legal fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, as counsel to the Agent and the reasonable fees and expenses of Ernst & Young Corporate Finance LLC, as financial advisor to the Agent's counsel. (f) The Company shall have delivered to the Agent an executed copy of that certain Intercreditor Agreement dated as of the date hereof among the Company, the Collateral Agent appointed pursuant to the terms of the Intercreditor Agreement, the Agent, the Banks and the holders of the Senior Notes. (g) The Company shall have paid to the Agent, for the ratable benefit of the Banks, a restructuring fee equal to $361,000. (h) The Company shall have paid to the Agent, for its own account, an administrative fee of $150,000.
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Third Amendment Effective Date. This Third Amendment will become effective on April 19, 2002 or the first Business Day thereafter as of which each of the following conditions precedent has been satisfied (the "Third Amendment Effective Date"):
(a) The Agent has received from the Company and each of the Banks a duly executed original or facsimile counterpart of this Amendment (any such facsimiles to be promptly followed by the originals thereof).
(b) The "Third Amendment Effective Date" as defined in the Third Amendment to the Facility B A Credit Agreement of even date herewith has occurred or is occurring contemporaneously as of the Third Amendment Effective Date hereunder.
(c) The Agent has received the opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the Company, and Ball ▇▇▇▇▇ LLP, as special counsel to the Company and the Partner Entities (other than Fremont), addressed to the Agent and the Banks, substantially in the forms attached as Exhibits B and C hereto.
(d) The Company shall have paid to the Agent, for application to the payment and/or prepayment of the Facility A Loans and the Facility B Loans, an amount equal to $64,734,356; provided that satisfaction of the corresponding condition precedent in the Third Amendment to the Facility A Credit Agreement dated as of the date hereof shall be deemed to satisfy this condition precedent.
(e) The Company shall have paid to the Agent (or to such party as the Agent directs), the its reasonable legal and non-legal expenses incurred by the Banks through the date hereof in connection with this Third Amendment including the reasonable legal fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, as counsel to the Agent and the reasonable fees and expenses of Ernst & Young Corporate Finance LLC, as financial advisor to the Agent's counsel; provided that satisfaction of the corresponding condition precedent in the Third Amendment to the Facility A Credit Agreement dated as of the date hereof shall be deemed to satisfy this condition precedent.
(f) The Company shall have funded the retainer required by Section 8 hereof to the reasonable satisfaction of the Agent.
(g) The Company shall have delivered to the Agent an a Borrowing Base Certificate as of March 31, 2002 in substantially the form of Schedule 7.1(j) and certified by a Responsible Officer of the Company to be true and correct as of such date.
(h) The Company shall have delivered to the Agent a fully executed copy of that certain Intercreditor Agreement dated as of the date hereof among the Company, the Collateral Agent appointed pursuant to the terms of the Intercreditor Agreement, Bank of America, N.A., as Agent for the AgentBanks from time to time party to the Facility A Credit Agreement, the Banks party to the Facility A Credit Agreement, and the holders of the Senior Notes.
(g) The Company shall have paid to the Agent, for the ratable benefit of the Banks, a restructuring fee equal to $361,000.
(h) The Company shall have paid to the Agent, for its own account, an administrative fee of $150,000.
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Third Amendment Effective Date. This Third Amendment will shall become effective on April 19, 2002 or as of the first Business Day thereafter as of date (the “Third Amendment Effective Date”) on which each of the following conditions precedent has shall have been satisfied (the "Third Amendment Effective Date"):satisfied:
(a) The the Administrative Agent has shall have received from this Third Amendment, executed and delivered by the Company Administrative Agent, each Loan Party and each Term Lender listed on Schedule 2.01 of the Banks a duly executed original or facsimile counterpart of this Amendment (any such facsimiles to be promptly followed by the originals thereof).Amended Credit Agreement;
(b) The "all fees and expenses required to be paid by (or on behalf of) the Borrower to the Administrative Agent or any arranger pursuant to any fee letter with the Borrower on or before the Third Amendment Effective Date" as defined Date shall have been (or shall substantially contemporaneously be) paid in full in cash (and in the case of expenses, to the extent invoiced at least three Business Days prior to the Third Amendment to Effective Date or such shorter period agreed by the Facility B Credit Agreement Borrower in its sole discretion);
(c) the representations and warranties of even date herewith has occurred or is occurring contemporaneously each Loan Party set forth herein and in the Loan Documents shall be true and correct in all material respects on and as of the Third Amendment Effective Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects, taking into account such materiality or reference to Material Adverse Effect, on the Third Amendment Effective Date hereunder.or on such earlier date, as the case may be;
(d) at the time of and immediately after giving effect to this Third Amendment, no Default or Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a certificate, dated the Third Amendment Effective Date and signed by a Financial Officer or the President or a Vice President of the Borrower, confirming compliance with the conditions set forth in paragraphs (c) The and (d) of this Section 5;
(f) the Administrative Agent has shall have received a favorable written opinion (addressed to the opinions Administrative Agent and the Lenders) of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the Company, and Ball ▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties (i) dated as special counsel of the Third Amendment Effective Date and (ii) in form and substance reasonably satisfactory to the Company and Administrative Agent;
(g) the Partner Entities Administrative Agent shall have received a copy of (other than Fremont)i) organizational document of each Loan Party certified, addressed to the Agent extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Banksresponsible officers of each Loan Party executing the Loan Documents to which it is a party, substantially (iii) copies of resolutions of the board of directors or managers, shareholders, partners, and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Third Amendment Effective Date by a secretary, an assistant secretary or a responsible officer of such Loan Party as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the forms attached as Exhibits B and C hereto.extent such concept, or an analogous concept, exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
(dh) The Company the Administrative Agent shall have paid received at least three Business Days prior to the AgentThird Amendment Effective Date, for application all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, that has been requested at least ten days prior to the payment and/or prepayment Third Amendment Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and a Lender has requested in a written notice to the Borrower at least 10 days prior to the Third Amendment Effective Date a Beneficial Ownership Certification in relation to the Borrower, such Lender shall have received such Beneficial Ownership Certification with respect to the Borrower at least three Business Days prior to the Third Amendment Effective Date (provided that, upon the execution and delivery by such Lender of its signature page to this Third Amendment, the Facility A Loans and the Facility B Loans, an amount equal conditions set forth in this clause (h) shall be deemed to $64,734,356.be satisfied);
(ei) The Company shall have paid to the Agent (or to such party as the Agent directs), the reasonable legal and non-legal expenses incurred by the Banks through the date hereof in connection with this Third Amendment including reasonable legal fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, as counsel to the Agent and the reasonable fees and expenses of Ernst & Young Corporate Finance LLC, as financial advisor to the Agent's counsel.
(f) The Company Borrower shall have delivered to the Administrative Agent an executed copy of that certain Intercreditor Agreement dated as the notice required by Section 2.03 of the date hereof among the Company, the Collateral Agent appointed pursuant to the terms of the Intercreditor Amended Credit Agreement, the Agent, the Banks and the holders of the Senior Notes.; and
(gj) The Company all Existing Term Loans shall have paid to been continued as or replaced with (as applicable) Initial Term Loans under the Agent, for the ratable benefit of the Banks, a restructuring fee equal to $361,000Amended Credit Agreement.
(h) The Company shall have paid to the Agent, for its own account, an administrative fee of $150,000.
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