CONDITIONS APPLICABLE TO) TRANCHE A TERM LOANS (AND WITHOUT LIMITATION OF THE
FOREGOING, SUCH INCREMENTAL TERM LOANS SHALL BE ENTITLED TO THE SAME VOTING
RIGHTS AS, AND SHALL BE ENTITLED TO RECEIVE PROCEEDS OF VOLUNTARY AND MANDATORY
PREPAYMENTS ON THE SAME BASIS AS, THE TRANCHE A TERM LOANS).
THE PROCEEDS OF
ANY INCREMENTAL TERM LOANS SHALL BE USED IN ACCORDANCE WITH SECTION 2.14.
(E)
NOTWITHSTANDING ANYTHING SET FORTH IN THIS
SECTION 2.21 TO THE CONTRARY, THE COMPANY SHALL NOT INCUR ANY SERIES OF
INCREMENTAL TERM LOANS (AND NO INCREMENTAL TERM LOAN COMMITMENTS SHALL BE
EFFECTIVE) UNLESS THE CONDITIONS SET FORTH IN SECTION 2.21(A) AS WELL AS THE
FOLLOWING CONDITIONS PRECEDENT ARE SATISFIED ON THE APPLICABLE INCREMENTAL TERM
LOAN EFFECTIVE DATE:
64
(I)
THE ADMINISTRATIVE AGENT SHALL HAVE
RECEIVED THE FOLLOWING, EACH DATED THE INCREMENTAL TERM LOAN EFFECTIVE DATE AND
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ADMINISTRATIVE AGENT:
(A)
AN INCREMENTAL TERM LOAN AMENDMENT, DULY
EXECUTED BY THE COMPANY AND EACH INCREMENTAL TERM LENDER PROVIDING SUCH
INCREMENTAL TERM LOANS;
(B)
AN INSTRUMENT, DULY EXECUTED BY THE COMPANY
AND EACH OTHER GUARANTOR, ACKNOWLEDGING AND REAFFIRMING ITS OBLIGATIONS UNDER
THE GUARANTY AGREEMENT, THE SECURITY DOCUMENTS AND THE OTHER CREDIT DOCUMENTS TO
WHICH IT IS A PARTY AND THE VALIDITY AND CONTINUED EFFECT OF THE LIENS GRANTED
IN FAVOR OF THE ADMINISTRATIVE AGENT THEREUNDER;
(C)
A CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE COMPANY AND EACH GUARANTOR, CERTIFYING TO AND
ATTACHING THE RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS (OR SIMILAR
GOVERNING BODY) OF SUCH CREDIT PARTY APPROVING OR CONSENTING TO SUCH INCREMENTAL
TERM LOANS;
(D)
A CERTIFICATE OF A FINANCIAL OFFICER OF THE
PARENT, CERTIFYING THAT (X) AS OF THE INCREMENTAL TERM LOAN EFFECTIVE DATE, ALL
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES CONTAINED IN THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS QUALIFIED AS TO MATERIALITY ARE TRUE AND CORRECT
AND THOSE NOT SO QUALIFIED ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, BOTH
IMMEDIATELY BEFORE AND AFTER GIVING EFFECT TO THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY (EXCEPT TO THE EXTENT ANY SUCH REPRESENTATION
OR WARRANTY IS EXPRESSLY STATED TO HAVE BEEN MADE AS OF A SPECIFIC DATE, IN
WHICH CASE SUCH REPRESENTATION OR WARRANTY IS TRUE AND CORRECT (IF QUALIFIED AS
TO MATERIALITY) OR TRUE AND CORRECT IN ALL MATERIAL RESPECTS (IF NOT SO
QUALIFIED), IN EACH CASE AS OF SUCH DATE), (Y) IMMEDIATELY AFTER GIVING EFFECT
TO THE MAKING OF SUCH INCREMENTAL TERM LOANS AND THE APPLICATION OF THE PROCEEDS
THEREOF, THE COMPANY IS IN COMPLIANCE WITH THE FINANCIAL COVENANTS CONTAINED IN
ARTICLE VII, SUCH COMPLIANCE DETERMINED WITH REGARD TO CALCULATIONS MADE ON A
PRO FORMA BASIS FOR THE MOST RECENTLY ENDED REFERENCE PERIOD FOR WHICH THE
ADMINISTRATIVE AGENT AND THE LENDERS HAVE RECEIVED FINANCIAL STATEMENTS AND A
COMPLIANCE CERTIFICATE, AS IF SUCH INCREMENTAL TERM LOANS HAD BEEN MADE ON THE
FIRST DAY OF SUCH PERIOD (SUCH CALCULATIONS TO BE ATTACHED TO THE CERTIFICATE),
AND (Z) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED