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This excerpt taken from the FL 8-K filed May 21, 2008. New Term Bank”, as applicable); provided that (i) any such new financial institution must be reasonably acceptable to the Administrative Agent and, in the case of Additional Revolver Commitments, the Swingline Bank and each LC Agent and (ii) any Bank approached to provide all or a portion of the Incremental Facilities may elect or decline, in its sole discretion, to provide such Incremental Facilities. Such Additional
Revolver Commitments shall become effective, and such New Term Loans shall become available, as of the Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Additional Revolver Commitments (and any loans thereunder to be made on the Increased Amount Date) or the New Term Loans (as applicable), (ii) before and after giving effect to the Incremental Facilities, the representations and warranties set forth in Article 4 shall be true; (iii) the Company and its Subsidiaries shall be in compliance, on a pro forma basis after giving effect to such Additional Revolver Commitments (and any loans thereunder to be made on the Increased Amount Date) or New Term Loans (as applicable) with the covenants contained in Sections 5.07, 5.08 and 5.10, (iv) any Additional Revolver Commitments shall be evidenced by one or more
joinder agreements reasonably acceptable to the Administrative Agent and executed and delivered to Administrative Agent by the Company and each New Bank, as applicable, (v) each New Bank shall be subject to the requirements set forth in Section 8.04(d), if applicable; (vi) the Company shall make any payments required pursuant to Section 2.14 in connection with the provisions of the Additional Revolver Commitments and (vii) the New Term Loans (if any) shall comply with the requirements set forth in paragraph (c) below.
(b) On any Increased Amount Date on which Additional Revolver Commitments are effected, without further action by any party hereto, each LC Agent shall be deemed to have granted to each Bank, and each Bank shall be deemed to have acquired from each LC Agent, a participation in each Letter of Credit issued and outstanding on the Increased Amount Date equal to such Bank’s Pro Rata Share (after giving effect to the Additional Revolver Commitments pursuant to this Section 2.18) of (i) the aggregate amount available to be drawn thereunder and (ii) the aggregate unpaid amount of any outstanding reimbursement obligations in respect thereof. Such participations shall be on all the same terms and conditions as participations granted in Letters of Credit under Section 2.16. With respect to each such outstanding Letter of Credit, if any LC Agent has heretofore sold a participation therein to a Bank, such Bank and such LC Agent agree that such participation shall be automatically canceled on the Increased Amount Date. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all additional actions as may be reasonably necessary to ensure that, after giving effect to the increase in the Additional Revolver Commitments, the Outstanding Committed Amounts are
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held by each Bank in accordance with its Pro Rata Share (after giving effect to the Additional Revolver Commitments pursuant to this Section 2.18). This may be accomplished at the discretion of the Administrative Agent by (i) requiring the outstanding Committed Loans to be prepaid with the proceeds of a new Borrowing, (ii) causing each of the Banks having a Commitment prior to the Increased Amount Date to assign portions of their outstanding Committed Loans to New Revolver Banks which have acquired Additional Revolver Commitments on the Increased Amount Date or (iii) any combination of the foregoing. Any such prepayment or assignment shall be subject to the provisions of Section 2.14. If requested by the Administrative Agent pursuant to this clause (b), on the Increased Amount Date, each existing Bank shall assign to any New Revolver Bank, and each such New Revolver Bank shall purchase from such existing Bank, at the principal amount thereof, such interests in the Committed Loans outstanding on the Increased Amount Date as shall be necessary to give effect to the provisions of this clause (b). Such assignments shall be effected pursuant an assignment agreement in form and substance satisfactory to the Administrative Agent. (c) Subject to the satisfaction of the foregoing terms and conditions, any New Term Loans shall constitute a new tranche of term loans and shall be subject to the following restrictions: (i) the New Term Loans shall not mature prior to the Termination Date, (ii) the New Term Loans shall benefit from the Guarantees and be secured by the Collateral, in each case on a pari passu basis with the Loans, (iii) the interest rates and amortization applicable to such New Term Loans shall be determined by the Company and the New Term Banks and (iv) the New Term Loans shall otherwise be on terms and pursuant to documentation to be determined by the Company and the New Term Banks; provided that to the extent such terms and documentation are not consistent with the terms hereof applicable to the Loans, except to the extent provided by sub-clause (i) and (iii) above, they shall be reasonably satisfactory to the Required Banks. (d) All loans to be made pursuant to an Incremental Facility will be made in accordance with the procedures set forth in Section 2.02. (e) The Administrative Agent shall notify the Banks promptly upon receipt of the Company’s notice of an Increased Amount Date and, in respect thereof, the Incremental Facilities and the New Banks. ARTICLE 3 CONDITIONS Section 3.01. Effective Date. This Agreement shall become effective on the date (the “ |
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