THE REASONABLE JUDGMENT OF SUCH LENDER, SUCH DESIGNATION OR ASSIGNMENT (I) WOULD
ELIMINATE OR REDUCE AMOUNTS PAYABLE PURSUANT TO SECTION 3.01 OR SECTION 3.02, AS
THE CASE MAY BE, IN THE FUTURE; AND (II) IN EACH CASE, WOULD NOT SUBJECT SUCH
LENDER TO ANY MATERIAL UNREIMBURSED COST OR EXPENSE AND WOULD NOT OTHERWISE BE
MATERIALLY DISADVANTAGEOUS TO SUCH LENDER.
THE BORROWER HEREBY AGREES TO PAY
ALL REASONABLE COSTS AND EXPENSES INCURRED BY ANY LENDER IN CONNECTION WITH ANY
SUCH DESIGNATION OR ASSIGNMENT; PROVIDED, HOWEVER, THAT THE BORROWER SHALL NOT
BE LIABLE FOR SUCH COSTS AND EXPENSES OF A LENDER REQUESTING COMPENSATION IF
(I) SUCH LENDER BECOMES A PARTY TO THIS AGREEMENT ON A DATE AFTER THE CLOSING
DATE AND (II) THE RELEVANT CHANGE IN LAW OCCURS ON A DATE PRIOR TO THE DATE SUCH
LENDER BECOMES A PARTY HERETO.
(B)
IF ANY LENDER REQUESTS COMPENSATION UNDER SECTION 3.02, OR IF THE BORROWER
IS REQUIRED TO PAY ANY ADDITIONAL AMOUNT TO ANY LENDER OR ANY GOVERNMENTAL
AUTHORITY FOR THE ACCOUNT OF ANY LENDER PURSUANT TO SECTION 3.01, THE BORROWER
MAY REPLACE SUCH LENDER IN ACCORDANCE WITH SECTION 10.12.
SECTION 3.04.
SURVIVAL.
ALL OF THE BORROWER'S OBLIGATIONS UNDER THIS
ARTICLE III SHALL SURVIVE REPAYMENT OF ALL OTHER OBLIGATIONS HEREUNDER.
ARTICLE IV
CONDITIONS
SECTION 4.01.
CONDITIONS TO LOAN.
THE OBLIGATION OF THE LENDERS TO MAKE THE
LOANS HEREUNDER IS SUBJECT TO SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT
ON THE CLOSING DATE (OR THE WAIVER THEREOF IN ACCORDANCE WITH SECTION 10.01):
(A)
THE ADMINISTRATIVE AGENT'S RECEIPT OF THE FOLLOWING, EACH OF WHICH SHALL BE
ORIGINALS OR TELECOPIES OR OTHER ELECTRONIC IMAGE SCAN TRANSMISSION (E.G., "PDF"
OR "TIF" VIA E-MAIL FOLLOWED PROMPTLY BY ORIGINALS) UNLESS OTHERWISE SPECIFIED,
AND EACH PROPERLY EXECUTED BY A RESPONSIBLE OFFICER OF THE SIGNING LOAN PARTY
(IF APPLICABLE):
(I) EXECUTED COUNTERPARTS OF THIS AGREEMENT;
(II) A NOTE EXECUTED BY THE BORROWER IN FAVOR OF EACH LENDER THAT HAS REQUESTED
A NOTE AT LEAST TWO BUSINESS DAYS IN ADVANCE OF THE CLOSING DATE;
(III) SUCH CERTIFICATES OF RESOLUTIONS OR OTHER ACTION, INCUMBENCY CERTIFICATES
AND/OR OTHER CERTIFICATES OF RESPONSIBLE OFFICERS OF EACH LOAN PARTY EVIDENCING
(A) THE AUTHORITY OF SUCH LOAN PARTY TO ENTER INTO THIS AGREEMENT AND THE OTHER
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LOAN DOCUMENTS TO WHICH IT IS A PARTY (INCLUDING APPROVALS BY THE BOARD OF
DIRECTORS OR SIMILAR GOVERNING BODY OF SUCH LOAN PARTY) AND (B) THE IDENTITY,
AUTHORITY AND CAPACITY OF EACH RESPONSIBLE OFFICER THEREOF AUTHORIZED TO ACT AS
A RESPONSIBLE OFFICER IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS TO WHICH SUCH LOAN PARTY IS A PARTY;
(IV) CERTIFIED COPIES OF EACH LOAN PARTY'S ORGANIZATION DOCUMENTS AND A
CERTIFICATE OF GOOD STANDING (WHERE APPLICABLE, OR SUCH OTHER CUSTOMARY
FUNCTIONALLY EQUIVALENT CERTIFICATES OR ABSTRACTS, TO THE EXTENT AVAILABLE IN
THE APPLICABLE JURISDICTION) OF SUCH LOAN PARTY'S JURISDICTION OF ORGANIZATION
AND EACH JURISDICTION WHERE IF NOT OBTAINED WOULD REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT;
(V) A FAVORABLE OPINION OF (A) CRAVATH, SWAINE & MOORE LLP, SPECIAL COUNSEL