AND THERE SHALL REMAIN OUTSTANDING, LOANS UNDER SUCH EXISTING
CREDIT AGREEMENT (WITHOUT GIVING EFFECT TO ANY REDUCTIONS IN THE AGGREGATE
PRINCIPAL AMOUNT THEREOF DUE TO FLUCTUATIONS IN CURRENCY AFTER MARCH 10, 2009)
EQUAL TO THE TOTAL COMMITMENTS THEREUNDER IN EFFECT ON THE CLOSING DATE (AS SUCH
AMOUNT MAY BE REDUCED SOLELY BY ANY UNFUNDED COMMITMENTS OF DEFAULTING LENDERS
THEREUNDER
AND ANY AMOUNTS REPRESENTING LETTER OF CREDIT USAGE OF THE LENDERS
REMAINING THEREUNDER AS OF MARCH 10, 2009);
(T)
THE EXISTING 2008 CREDIT AGREEMENT SHALL HAVE BEEN EFFECTIVELY
AMENDED PURSUANT TO THE EXISTING 2008 CREDIT AGREEMENT AMENDMENTS;
(U)
THE BORROWER SHALL HAVE ENTERED INTO THE FIRST PRIORITY CREDIT
AGREEMENT AND THE 2012 SECOND PRIORITY CREDIT AGREEMENT; AND
(V)
THE REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES CONTAINED
IN THE LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND
AS OF THE CLOSING DATE BOTH BEFORE AND AFTER GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY; PROVIDED THAT, TO THE EXTENT SUCH REPRESENTATIONS AND
WARRANTIES EXPRESSLY REFER TO AN EARLIER DATE, THEY SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS AS OF SUCH EARLIER DATE; PROVIDED FURTHER, THAT ANY
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REPRESENTATION AND WARRANTY THAT IS QUALIFIED AS TO "MATERIALITY", "MATERIAL
ADVERSE EFFECT" OR SIMILAR LANGUAGE SHALL BE TRUE AND CORRECT (AFTER GIVING
EFFECT TO SUCH QUALIFICATION THEREIN) IN ALL RESPECTS ON SUCH RESPECTIVE DATES.
Section 3.2. Borrowings.
The obligation of any Bank to make a Loan or to
participate in any Letter of Credit issued by the Fronting Bank and the
obligation of the Fronting Bank to issue a Letter of Credit and the obligation
of the Swingline Lender to make a Swingline Loan on the occasion of any
Borrowing is subject to the satisfaction of the following conditions:
(A)
RECEIPT BY THE ADMINISTRATIVE AGENT OF A NOTICE OF BORROWING AS
REQUIRED BY SECTION 2.3 OR SECTION 2.4(B)(I) OR A REQUEST TO CAUSE A FRONTING
BANK TO ISSUE A LETTER OF CREDIT PURSUANT TO SECTION 2.19;
(B)
IN THE CASE OF A REVOLVING CREDIT BORROWING, SWINGLINE BORROWING
OR LETTER OF CREDIT ISSUANCE, IMMEDIATELY AFTER GIVING EFFECT TO SUCH REVOLVING
CREDIT BORROWING, SWINGLINE BORROWING OR LETTER OF CREDIT ISSUANCE, THE
AGGREGATE OUTSTANDING PRINCIPAL AMOUNT OF THE SUM OF THE REVOLVING CREDIT LOANS,
SWINGLINE LOANS AND THE LETTER OF CREDIT USAGE WILL NOT EXCEED THE AGGREGATE
AMOUNT OF THE REVOLVING CREDIT COMMITMENTS;
(C)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING BOTH BEFORE AND AFTER GIVING EFFECT TO THE MAKING OF SUCH LOANS OR
THE ISSUANCE OF SUCH LETTER OF CREDIT;
(D)
THE FIXED CHARGE COVERAGE RATIO SHALL BE AT LEAST 1.25 TO 1.00;
(E)
ON A PRO FORMA BASIS, AFTER GIVING EFFECT TO THE MAKING OF SUCH
LOANS OR THE ISSUANCE OF SUCH LETTER OF CREDIT AND ANY SUBSTANTIALLY
CONTEMPORANEOUS ADDITION OF ANY NEW COLLATERAL WITH RESPECT TO WHICH THE
COLLATERAL TRUSTEE SHALL HAVE BEEN GRANTED A SECOND PRIORITY SECURITY INTEREST
FOR THE BENEFIT OF THE AGENTS AND THE BANKS (SUBJECT ONLY TO THE