EXTENT NOT CONSISTENT IN ALL MATERIAL RESPECTS WITH
THE TERMS OF THE THEN-OUTSTANDING TERM LOANS, SHALL BE REASONABLY SATISFACTORY
TO THE ADMINISTRATIVE AGENT.
(C)
EACH LENDER AND AUGMENTING TERM LENDER THAT ELECTS TO EXTEND INCREMENTAL
TERM LOANS (COLLECTIVELY, THE "INCREMENTAL LENDERS") SHALL ENTER INTO AN
AMENDMENT (AN "INCREMENTAL FACILITY AMENDMENT") TO THIS AGREEMENT AND, AS
APPROPRIATE, THE OTHER LOAN DOCUMENTS, EXECUTED BY HOLDINGS, THE BORROWER, SUCH
INCREMENTAL LENDERS AND THE ADMINISTRATIVE AGENT.
AN INCREMENTAL FACILITY
AMENDMENT MAY, WITHOUT THE CONSENT OF ANY OTHER LENDERS, EFFECT SUCH AMENDMENTS
TO ANY LOAN DOCUMENTS AS MAY BE NECESSARY OR APPROPRIATE, IN THE OPINION OF THE
ADMINISTRATIVE AGENT, TO EFFECT THE PROVISIONS OF THIS SECTION.
THE
EFFECTIVENESS OF ANY INCREMENTAL FACILITY AMENDMENT AND THE FUNDING OF
INCREMENTAL TERM LOANS THEREUNDER SHALL, IN ADDITION TO SUCH OTHER CONDITIONS AS
THE BORROWER AND THE INCREMENTAL LENDERS MAY AGREE, BE SUBJECT TO (I) THE
SATISFACTION ON THE DATE THEREOF OF EACH OF THE CONDITIONS SET FORTH IN SECTION
4.02 (AS THOUGH THE DATE OF FUNDING OF THE INCREMENTAL TEM LOANS WERE THE DATE
OF BORROWING REFERRED TO IN SECTION 4.02) AND (II) THE CONDITION THAT HOLDINGS
AND THE BORROWER ARE IN COMPLIANCE, ON A PRO FORMA BASIS AFTER GIVING EFFECT TO
THE INCURRENCE OF SUCH INCREMENTAL TERM LOANS, WITH THE COVENANTS CONTAINED IN
SECTIONS 6.12 AND 6.13, RECOMPUTED AS OF THE LAST DAY OF THE MOST RECENTLY ENDED
FISCAL QUARTER OF HOLDINGS FOR WHICH FINANCIAL STATEMENTS HAVE BEEN DELIVERED
PURSUANT TO SECTION 5.01 (DETERMINED IN THE SAME MANNER AS REQUIRED UNDER CLAUSE
(XI)(B) OF SECTION 6.01(A)).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower represents and warrants to the Lenders that:
SECTION 3.01.
ORGANIZATION; POWERS.
EACH OF HOLDINGS, THE BORROWER AND THE
SUBSIDIARIES IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF THE JURISDICTION OF ITS ORGANIZATION, HAS ALL REQUISITE POWER AND
AUTHORITY TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND, EXCEPT WHERE THE
FAILURE TO DO SO, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, IS QUALIFIED TO DO BUSINESS IN,
AND IS IN GOOD STANDING IN, EVERY JURISDICTION WHERE SUCH QUALIFICATION IS
REQUIRED.
SECTION 3.02.
AUTHORIZATION; ENFORCEABILITY.
THE RESTATEMENT TRANSACTIONS TO
BE ENTERED INTO BY EACH LOAN PARTY ARE WITHIN SUCH LOAN PARTY'S CORPORATE OR
LIMITED LIABILITY COMPANY POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE OR LIMITED LIABILITY COMPANY ACTION AND, IF REQUIRED, STOCKHOLDER
ACTION.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY EACH OF HOLDINGS
AND THE BORROWER AND CONSTITUTES, AND EACH OTHER LOAN DOCUMENT TO WHICH ANY LOAN
PARTY IS
68
TO BE A PARTY, WHEN EXECUTED AND DELIVERED BY SUCH LOAN PARTY, WILL CONSTITUTE,
A LEGAL, VALID AND BINDING OBLIGATION OF HOLDINGS, THE BORROWER OR SUCH LOAN
PARTY (AS THE CASE MAY BE), ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF
EQUITY,