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 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), its reasonable legal and non-legal expenses incurred 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 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 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 Banks 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.
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Third Amendment Effective Date. This Third Amendment will The amendments set forth in Section 1 of this Agreement shall become effective on April 19, 2002 or the first Business Day thereafter as of which each upon satisfaction of the following conditions precedent has been satisfied (the "“Third Amendment Effective Date"”):
(a) The Agent has received from (i) the Company Third Amendment Signing Date shall have occurred and each of (ii) the Banks a duly executed original Third Amendment Effective Date shall occur on or facsimile counterpart of this before the date that is 60 days following the Third Amendment (any such facsimiles to be promptly followed by the originals thereof).Signing Date;
(b) The "the Third Amendment Transactions shall be consummated substantially simultaneously with the Third Amendment Effective Date" as defined Date substantially in accordance with the terms of the Transaction Support Agreement without any amendment, supplement or other modification thereto materially adverse to the Lenders, including without limitation the Term Loan B Prepayment and Senior Secured Notes Redemption;
(c) Agent shall have received (i) a payoff letter evidencing the Term Loan B Prepayment, in form and substance reasonably satisfactory to the Agent and (ii) a copy of a notice of redemption with respect to the Senior Secured Notes Redemption and, in each case, customary documentation with respect to the release and termination of security interests in connection with the Term Loan B Prepayment and the Senior Secured Notes Redemption (including UCC-3 financing statement releases);
(d) the execution and delivery of each applicable Intercreditor Agreement by the applicable parties thereto;
(e) after giving effect to the amendments in Section 1 hereof and upon consummation of the Third Amendment to Transactions, (i) no Default or Event of Default shall exist, (ii) the Facility A Credit representations and warranties set forth in Section 9 of the Loan Agreement of even date herewith has occurred or is occurring contemporaneously are true and correct in all material respects as of the Third Amendment Effective Date hereunder.(or, with respect to representations and warranties qualified by materiality, in all respects) (except for representations and warranties that expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, with respect to representations and warranties qualified by materiality, in all respects) as of such earlier date), (iii) the Borrowers and their consolidated Restricted Subsidiaries, taken as a whole, are Solvent and (iv) since December 31, 2021, there has been no change in the condition, financial or otherwise, of Holdings and its Restricted Subsidiaries, taken as a whole, that could reasonably be expected to have a Material Adverse Effect;
(cf) The Agent has shall have received the opinions (i) a certificate, in form and substance reasonably satisfactory to it, from a Responsible Officer of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, each Borrower certifying 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.
clause (e) The Company shall have paid of this Section 3 and (ii) a perfection certificate, in form and substance reasonably satisfactory to the Agent it, executed by a Responsible Officer of Loan Party Agent;
(or to such party as the Agent directs), its reasonable legal and non-legal expenses incurred through the date hereof in connection with this Third Amendment including the reasonable legal g) all accrued fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, as counsel to the Agent and (including the fees and expenses of Ernst & Young Corporate Finance LLC, as financial advisor counsel (including any local counsel) for Agent) due from the Loan Parties on or prior to the Agent's counsel; provided that satisfaction of the corresponding condition precedent in the Third Amendment Effective Date pursuant to the Facility A Credit Agreement dated as Loan Documents shall have been paid in full in cash, including an amendment fee for the ratable benefit of each Lender party hereto in an amount equal to 0.25% of the date hereof shall aggregate amount of each Lender’s Facility Commitments on the Third Amendment Effective Date (such amendment fee to be deemed to satisfy this condition precedent.
(f) The Company shall have funded the retainer required by Section 8 hereof fully earned and due and payable on, and subject to the reasonable satisfaction occurrence of the Agent.
(g) The Company Third Amendment Effective Date, and shall have delivered to the Agent 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 not be true and correct as of such date.refundable for any reason);
(h) The Company to the extent reasonably requested by Agent or any Lender at least 10 Business Days prior to the Third Amendment Effective Date, each Borrower shall have delivered provided all documentation and other information as Agent or any Lender shall have reasonably requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Agent and Lenders in relation to such Borrower; and
(i) giving effect to the Agent a fully executed copy of that certain Intercreditor Agreement dated as of Third Amendment Effective Date and the date hereof among the Companytransactions contemplated herein, the Collateral Agent appointed pursuant Availability shall be at least $60,000,000 (without giving effect to the terms of $35,000,000 U.S. Bank Product Reserve included in the Intercreditor Agreement, Bank of America, N.A., as Agent for the Banks 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 NotesBorrowing Base).
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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 A 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; 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), its the 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 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 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, Bank of America, N.A., as Agent for the Banks from time to time party to the Facility A Credit AgreementAgent, 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 A 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, as special New York counsel to for the Company and the Partner Entities Loan Parties (other than Fremont), addressed to the Agent and the Banks, substantially in the forms attached as Exhibits B and C hereto.
(di) 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 Third Amendment Effective Date and (ii) in form and substance reasonably satisfactory to the Administrative Agent;
(g) the Administrative Agent shall have received a copy of (i) organizational document of each Loan Party certified, to the extent applicable, as of a recent date hereof by the applicable Governmental Authority, (ii) signature and incumbency certificates of the responsible officers of each Loan Party executing the Loan Documents to which it is a party, (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 extent such concept, or an analogous concept, exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation;
(h) the Administrative Agent shall have received at least three Business Days prior to the Third Amendment Effective Date, 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 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 conditions set forth in this clause (h) shall be deemed to satisfy this condition precedent.be satisfied);
(ei) The Company shall have paid to the Agent (or to such party as the Agent directs), its reasonable legal and non-legal expenses incurred 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 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 Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate as of March 31, 2002 in substantially the form of Schedule 7.1(j) and certified notice required by a Responsible Officer Section 2.03 of the Company to be true and correct as of such date.Amended Credit Agreement; and
(hj) The Company all Existing Term Loans shall have delivered to been continued as or replaced with (as applicable) Initial Term Loans under 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 Banks from time to time party to the Facility A Amended Credit Agreement, the Banks party to the Facility A Credit Agreement, and the holders of the Senior Notes.
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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 satisfied:
(i) the "Administrative Agent shall have received a counterpart signature page of this Third Amendment Effective Date"):
(a) The Agent has received from the Company and duly executed by each of the Banks a duly executed original or facsimile counterpart of this Amendment Borrower, each Guarantor, each Refinancing Term Lender and other Lenders (any such facsimiles together with the Refinancing Term Lenders) sufficient to be promptly followed by constitute, collectively, the originals thereof).Requisite Lenders;
(bii) The "Third Amendment Effective Date" as defined in the Third Amendment to Administrative Agent and Lenders and their respective counsel shall have received an original executed copy of the Facility A favorable written opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Credit Agreement of even date herewith has occurred or is occurring contemporaneously Parties, dated as of the Third Amendment Effective Date hereunder.and in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and the Lenders as of the Third Amendment Effective Date after giving effect to this Third Amendment (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent and such Lenders);
(ciii) The the Administrative Agent has shall have received (A) a copy of each Organizational Document of each Credit Party certified, to the opinions extent applicable, as of Skaddena recent date by the applicable Governmental Authority, Arpsor, Slateif reasonably acceptable to the Administrative Agent, a certification by an Authorized Officer that the applicable Organizational Documents delivered in connection with the Closing Date and/or on First Amendment Effective Date and/or the Second Amendment Effective Date, as applicable, remain in full force and effect and have not been amended, modified, revoked or rescinded since the Second Amendment Effective Date, (B) signature and incumbency certificates of the officers or directors of each Credit Party executing this Third Amendment, substantially in the form of the closing certificates delivered on the Closing Date, (C) resolutions of the Board of Directors or similar governing body of each Credit Party approving and, to the extent required in any jurisdiction, resolutions of the meeting of shareholders of a Credit Party, in each case authorizing the execution, delivery and performance of this Third Amendment, certified as of the Third Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment and (D) a good standing certificate (to the extent such concept is applicable in the relevant jurisdiction) from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation;
(iv) the representations and warranties of the Credit Parties set forth in Section 5 hereof shall be true and correct in all material respects as of the Third Amendment Effective Date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date), and the Administrative Agent shall have received a certificate, dated as of the Third Amendment Effective Date of the Borrower, confirming the accuracy thereof, which shall be in form and substance reasonably satisfactory to Administrative Agent;
(v) the Borrower shall have paid all fees and other amounts due and payable to GS Bank, ▇.▇. ▇▇▇▇▇▇ Securities LLC (“JPMS”), Citigroup Global Markets Inc. (“CGMI”), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel to the Company, and Ball ▇▇▇▇▇ LLPIncorporated (“MLPFS”) as joint lead arrangers, as special counsel to bookrunners and co-syndication agent (in such capacities, the Company “Lead Arrangers”) and the Partner Entities (other than Fremont), addressed to the Administrative 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), its reasonable legal and non-legal expenses incurred through the date hereof in connection with this Third Amendment Amendment, including reimbursement or payment of reasonable costs and expenses actually incurred by the Lead Arrangers or the Administrative Agent in connection with this Third Amendment, including the reasonable legal fees fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the extent that Borrower has received a reasonably detailed invoice for such costs and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, as counsel prior to the Agent and the 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 Effective Date;
(vi) concurrently with the making of the Refinancing Tranche B Term Loans, (a) the entire aggregate principal amount of the Existing Tranche B Term Loans and (b) all accrued interest, fees and other amounts (including any amounts due pursuant to Section 2.18 of the Credit Agreement) accrued prior to the Facility A Third Amendment Effective Date in connection therewith shall have been paid (or, in the case of principal, deemed paid pursuant to this Third Amendment) in full and all Interest Periods in respect of thereof shall have been terminated;
(vii) the Borrower shall have delivered a Funding Notice with respect to the Refinancing Tranche B Term Loans, and a notice of prepayment with respect to the Existing Tranche B Term Loans, in each case, in accordance with the Credit Agreement; and
(viii) the Administrative Agent shall have received a payment in the amount of $25,000,000 to effect the voluntary prepayment of the Refinancing Tranche B Term Loans in accordance with Section 2.13 of the Credit Agreement dated immediately after giving effect to the Refinancing (the “Prepayment”). The Administrative Agent hereby acknowledges that (i) the Borrower hereby provides notice under Section 2.13 of the Credit Agreement of such Prepayment as of the date hereof Third Amendment Effective Date and (ii) all notice requirements set forth in Section 2.13 of the Credit Agreement with respect to such Prepayment have been satisfied (it being understood and agreed that the Prepayment shall be deemed to satisfy this condition precedentmade with internally generated cash of the Borrower and not the proceeds of the incurrence of Indebtedness).
(fb) The Company shall have funded the retainer required by Subject to Section 8 hereof to the reasonable satisfaction 9.05(b) of the Agent.
(g) The Company shall have delivered to the Agent 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 Banks from time to time party to the Facility A Credit Agreement, the Banks party Third Amendment Effective Date shall not occur if any of the conditions set forth or referred to in this Section 6 has not been satisfied or waived in accordance with Section 10.05 of the Facility A Credit Agreement at or prior to 5:00 p.m., New York City time, on February 26, 2014 (it being understood that any such failure of the Third Amendment Effective Date to occur by such date will not affect any rights or obligations of any Person under the existing Credit Agreement, ). The Administrative Agent shall promptly notify the Borrower and the holders Lenders of the Senior NotesThird Amendment Effective Date.
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