Commitments after giving effect to such increase and (y)
effective upon such increase, the amount of the participations held by each
Lender in each Letter of Credit then outstanding shall be adjusted automatically
such that, after giving effect to such adjustments, the Lenders shall hold
participations in each such Letter of Credit in proportion to their respective
Revolving Commitments.
SECTION 2.23.
EXTENSION OF REVOLVING COMMITMENT
TERMINATION DATE.
THE REVOLVING CREDIT TERMINATION DATE SHALL BE EXTENDED TO
JULY 18, 2010 IF (I) NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AND
(II) EITHER (A) THE HOLDERS OF THE CONVERTIBLE NOTES WAIVE OR POSTPONE ALL PUT
OPTIONS AND SIMILAR RIGHTS TO REQUIRE REDEMPTION OF THE CONVERTIBLE NOTES UNTIL
A DATE NO EARLIER THAN JANUARY 18, 2011, AND THE BORROWER DELIVERS EVIDENCE
THEREOF REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT, OR (B) THE PARENT
AND THE BORROWER ENTER INTO AN AMENDMENT TO THIS AGREEMENT, ADDING A NEGATIVE
COVENANT TO ARTICLE 7 TO THE EFFECT THAT THE PARENT AND THE BORROWER WILL NOT
REDEEM THE CONVERTIBLE NOTES PRIOR TO JANUARY 18, 2011 EXCEPT SOLELY THROUGH THE
ISSUANCE OF COMMON STOCK OF THE PARENT (SUCH COVENANT TO SURVIVE THE TERMINATION
OF THE CREDIT AGREEMENT), SUCH COVENANT, AMENDMENT AND CONDITIONS THERETO TO BE
IN
45
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT IF THE
EVENTS SET FORTH IN CLAUSE (I) AND (II) ABOVE HAVE OCCURRED, THE ADMINISTRATIVE
AGENT SHALL GIVE PROMPT WRITTEN NOTICE THEREOF TO THE LENDERS.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1.
CONDITIONS TO EFFECTIVENESS. THE
OBLIGATIONS OF THE LENDERS (INCLUDING THE SWINGLINE LENDER) TO MAKE LOANS AND
THE OBLIGATION OF THE ISSUING BANK TO ISSUE ANY LETTER OF CREDIT HEREUNDER SHALL
NOT BECOME EFFECTIVE UNTIL THE DATE ON WHICH EACH OF THE FOLLOWING CONDITIONS IS
SATISFIED (OR WAIVED IN ACCORDANCE WITH SECTION 10.2).
(A)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED ALL FEES AND OTHER AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE CLOSING
DATE, INCLUDING REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES
(INCLUDING REASONABLE FEES, CHARGES AND DISBURSEMENTS OF COUNSEL TO THE
ADMINISTRATIVE AGENT) REQUIRED TO BE REIMBURSED OR PAID BY THE BORROWER
HEREUNDER, UNDER ANY OTHER LOAN DOCUMENT AND UNDER ANY AGREEMENT IN CONNECTION
HEREWITH OR THEREWITH WITH THE ADMINISTRATIVE AGENT OR SUNTRUST CAPITAL
MARKETS, INC., AS ARRANGER.
(B)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL)
SHALL HAVE RECEIVED THE FOLLOWING:
(I)
A COUNTERPART OF THIS AGREEMENT SIGNED
BY OR ON BEHALF OF EACH PARTY HERETO OR WRITTEN EVIDENCE SATISFACTORY TO THE
ADMINISTRATIVE AGENT (WHICH MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED
SIGNATURE PAGE OF THIS AGREEMENT) THAT SUCH PARTY HAS SIGNED A COUNTERPART OF
THIS AGREEMENT;
(II)
DULY EXECUTED REVOLVING CREDIT NOTES
PAYABLE TO SUCH LENDER AND THE SWINGLINE NOTE PAYABLE TO THE SWINGLINE LENDER;
(III)
THE SUBSIDIARY GUARANTY AGREEMENT DULY
EXECUTED BY EACH SUBSIDIARY OF THE BORROWER, OTHER THAN (A) SUBSIDIARIES THAT
ARE NOT MATERIAL SUBSIDIARIES OF THE BORROWER, SO LONG AS THE SUBSIDIARIES
EXECUTING THE SUBSIDIARY GUARANTY AGREEMENT COLLECTIVELY MEET THE