respect to the Additional Revolving
Lender, its Revolving Credit Commitment as set forth opposite its name on
Schedule I to this Amendment.
SECTION 3.
Conditions of Effectiveness of Amendments.
Sections 1 and
2 of this Amendment and the amendments to the Credit Agreement set forth therein
shall become effective on the date (the "Increase Effective Date") when each of
the conditions set forth in this Section 3 shall have been satisfied:
(A)
EXECUTION OF COUNTERPARTS.
THE PAYING AGENT SHALL HAVE RECEIVED
COUNTERPARTS OF (I) THIS AMENDMENT EXECUTED BY (A) THE BORROWER, (B) THE
ADDITIONAL REVOLVING LENDER AND (C) THE JOINT LEAD ARRANGERS, OR, AS TO ANY OF
THE FOREGOING PARTIES, ADVICE REASONABLY SATISFACTORY TO THE PAYING AGENT THAT
SUCH PARTY HAS EXECUTED A COUNTERPART OF THIS AMENDMENT NO. 5, (II) THE JOINDER
AGREEMENT EXECUTED BY (A) THE ADDITIONAL REVOLVING LENDER, (B) THE JOINT LEAD
ARRANGERS, (C) THE ADMINISTRATIVE AGENTS, (D) THE ISSUING BANK AND (E) THE SWING
LINE LENDER, (III) THE CONSENT IN THE FORM ATTACHED HERETO AS EXHIBIT B (THE
"CONSENT") EXECUTED BY EACH GUARANTOR, AND (IV) THE REVOLVING CREDIT NOTE
EXECUTED BY THE BORROWER, PAYABLE TO THE ORDER OF THE ADDITIONAL REVOLVING
LENDER.
(B)
PAYMENT OF EXPENSES.
THE BORROWER SHALL HAVE PAID ALL COSTS AND
EXPENSES (INCLUDING THE REASONABLE FEES AND EXPENSES OF SHEARMAN & STERLING LLP)
INCURRED BY THE JOINT LEAD ARRANGERS, BANK OF AMERICA, AS SYNDICATION AGENT, AND
THE ADMINISTRATIVE AGENTS IN CONNECTION WITH THE PREPARATION, NEGOTIATION AND
EXECUTION OF THIS AMENDMENT AND SUCH OTHER DOCUMENTS REQUIRED TO EFFECT THE
AMENDMENT, OR OTHERWISE REQUIRED TO BE PAID UNDER THE LOAN DOCUMENTS AND
REMAINING OUTSTANDING ON OR PRIOR TO THE DATE OF THIS AMENDMENT, IN EACH CASE
FOR WHICH THE INVOICE FOR SUCH FEES AND EXPENSES SHALL HAVE BEEN PRESENTED TO
THE BORROWER.
(C)
CORPORATE AUTHORIZATIONS, ETC.
THE JOINT LEAD ARRANGERS SHALL
HAVE RECEIVED:
(I)
CERTIFIED COPIES OF (A) THE RESOLUTIONS OF THE BOARD OF DIRECTORS
OR OF THE MEMBERS OR MANAGERS OF EACH LOAN PARTY APPROVING THE AMENDMENT, THE
INCURRENCE OR GUARANTEE (AS APPLICABLE) OF THE INCREASE OF THE REVOLVING CREDIT
ADVANCES PURSUANT TO SECTION 2.17 OF THE CREDIT AGREEMENT, THE OTHER
TRANSACTIONS CONTEMPLATED HEREBY AND EACH OF THE DOCUMENTS NECESSARY TO EFFECT
THE AMENDMENT TO WHICH IT IS OR IS TO BE A PARTY, AND (B) ALL DOCUMENTS
EVIDENCING
3
OTHER NECESSARY CORPORATE ACTION AND GOVERNMENTAL AND OTHER THIRD PARTY
APPROVALS AND CONSENTS, IF ANY, WITH RESPECT TO THE AMENDMENT, THE TRANSACTIONS
CONTEMPLATED HEREBY AND EACH SUCH OTHER DOCUMENT.
(II)
A COPY OF A CERTIFICATE OF THE SECRETARY OF STATE OF THE
JURISDICTION OF INCORPORATION OR ORGANIZATION OF EACH LOAN PARTY, DATED
REASONABLY NEAR THE EFFECTIVE DATE OF THIS AMENDMENT, CERTIFYING (A) AS TO A
TRUE AND CORRECT COPY OF THE CHARTER, ARTICLES OF INCORPORATION OR ARTICLES OF
ORGANIZATION, AS THE CASE MAY BE ("ORGANIZATIONAL DOCUMENTS") OF SUCH LOAN PARTY
AND EACH AMENDMENT THERETO ON FILE IN SUCH SECRETARY'S OFFICE, AND (B) THAT
(1) SUCH AMENDMENTS ARE THE ONLY AMENDMENTS TO SUCH LOAN PARTY'S