the purchase, at par, without premium or penalty, of the Note of such Affected
Lender and the assumption of its obligations hereunder, assign to the
replacement lender its Commitments and outstanding Advances hereunder. In the
event of an assignment under this Section, the processing fee referred to in
Section 8.07 hereof shall be paid by the Borrower, provided, that no such fee
shall be paid if the assignment is to an existing Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01.
Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(A)
THERE SHALL HAVE OCCURRED NO MATERIAL ADVERSE CHANGE SINCE DECEMBER 31,
2003.
(B)
THERE SHALL EXIST NO ACTION, SUIT, INVESTIGATION, LITIGATION OR PROCEEDING
AFFECTING THE BORROWER OR ANY OF ITS SUBSIDIARIES PENDING OR THREATENED BEFORE
ANY COURT, GOVERNMENTAL AGENCY OR ARBITRATOR THAT (I) WOULD HAVE A MATERIAL
ADVERSE EFFECT OR (II) WOULD BE REASONABLY LIKELY TO AFFECT THE LEGALITY,
VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY NOTE OR THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
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(C)
NOTHING SHALL HAVE COME TO THE ATTENTION OF THE LENDERS DURING THE COURSE
OF THEIR DUE DILIGENCE INVESTIGATION TO LEAD THEM TO BELIEVE THAT THE
INFORMATION MEMORANDUM WAS OR HAS BECOME MISLEADING, INCORRECT OR INCOMPLETE IN
ANY MATERIAL RESPECT; WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE
LENDERS SHALL HAVE BEEN GIVEN SUCH ACCESS TO THE MANAGEMENT, RECORDS, BOOKS OF
ACCOUNT, CONTRACTS AND PROPERTIES OF THE BORROWER AND ITS SUBSIDIARIES AS THEY
SHALL HAVE REQUESTED.
(D)
ALL GOVERNMENTAL AND THIRD PARTY CONSENTS AND APPROVALS NECESSARY IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY SHALL HAVE BEEN OBTAINED
(WITHOUT THE IMPOSITION OF ANY CONDITIONS THAT ARE NOT ACCEPTABLE TO THE
LENDERS) AND SHALL REMAIN IN EFFECT, AND NO LAW OR REGULATION SHALL BE
APPLICABLE IN THE REASONABLE JUDGMENT OF THE LENDERS THAT RESTRAINS, PREVENTS OR
IMPOSES MATERIALLY ADVERSE CONDITIONS UPON THE TRANSACTIONS CONTEMPLATED HEREBY.
(E)
THE BORROWER SHALL HAVE NOTIFIED THE AGENT IN WRITING AS TO THE PROPOSED
EFFECTIVE DATE.
(F)
THE BORROWER SHALL HAVE PAID ALL ACCRUED FEES AND EXPENSES OF THE AGENT,
THE ARRANGERS AND THE LENDERS (INCLUDING THE ACCRUED FEES AND EXPENSES OF
COUNSEL TO THE AGENT FOR WHICH AN INVOICE HAS BEEN RECEIVED PRIOR TO THE
EFFECTIVE DATE).
(G)
ON THE EFFECTIVE DATE, THE FOLLOWING STATEMENTS SHALL BE TRUE AND THE AGENT
SHALL HAVE RECEIVED FOR THE ACCOUNT OF EACH LENDER A CERTIFICATE SIGNED BY A
DULY AUTHORIZED OFFICER OF THE BORROWER, DATED THE EFFECTIVE DATE, STATING THAT:
(I)
THE REPRESENTATIONS AND WARRANTIES
CONTAINED IN SECTION 4.01 ARE CORRECT ON AND AS OF THE EFFECTIVE DATE, AND
(II)
NO EVENT HAS OCCURRED AND IS CONTINUING
THAT CONSTITUTES A DEFAULT.
(H)
THE AGENT SHALL HAVE RECEIVED ON OR BEFORE THE EFFECTIVE DATE THE
FOLLOWING, EACH DATED SUCH DAY, IN FORM AND SUBSTANCE SATISFACTORY TO THE AGENT
AND (EXCEPT FOR THE NOTES) IN SUFFICIENT