OF WHICH IT HAS KNOWLEDGE WHICH WILL RESULT IN, AND WILL USE REASONABLE
COMMERCIAL EFFORTS AVAILABLE TO IT (AND NOT, IN SUCH LENDER'S SOLE JUDGMENT,
OTHERWISE DISADVANTAGEOUS TO SUCH LENDER) TO MITIGATE OR AVOID, (I) ANY
OBLIGATION BY THE COMPANY TO PAY ANY AMOUNT PURSUANT TO SECTION 7.6 OR 8.1 OR
(II) THE OCCURRENCE OF ANY CIRCUMSTANCES DESCRIBED IN SECTION 8.2 OR 8.3 (AND,
IF ANY LENDER HAS GIVEN NOTICE OF ANY SUCH EVENT DESCRIBED IN CLAUSE (I) OR (II)
ABOVE AND THEREAFTER SUCH EVENT CEASES TO EXIST, SUCH LENDER SHALL PROMPTLY SO
NOTIFY THE COMPANY AND THE ADMINISTRATIVE AGENT).
WITHOUT LIMITING THE
FOREGOING, EACH LENDER WILL DESIGNATE A DIFFERENT FUNDING OFFICE IF SUCH
DESIGNATION WILL AVOID (OR REDUCE THE COST TO THE COMPANY OF) ANY EVENT
DESCRIBED IN CLAUSE (I) OR (II) ABOVE AND SUCH DESIGNATION WILL NOT, IN SUCH
LENDER'S SOLE JUDGMENT, BE OTHERWISE DISADVANTAGEOUS TO SUCH LENDER.
(B)
IF THE COMPANY BECOMES OBLIGATED TO PAY ADDITIONAL AMOUNTS TO ANY
LENDER PURSUANT TO SECTION 7.6 OR 8.1, OR ANY LENDER GIVES NOTICE OF THE
OCCURRENCE OF ANY CIRCUMSTANCES DESCRIBED IN SECTION 8.2 OR 8.3, THE COMPANY MAY
DESIGNATE ANOTHER BANK WHICH IS ACCEPTABLE TO THE ADMINISTRATIVE AGENT AND THE
ISSUING LENDER IN THEIR REASONABLE DISCRETION (SUCH OTHER BANK BEING CALLED A
"REPLACEMENT LENDER") TO PURCHASE THE LOANS OF SUCH LENDER AND SUCH LENDER'S
RIGHTS HEREUNDER, WITHOUT RECOURSE TO OR WARRANTY BY, OR EXPENSE TO, SUCH
LENDER, FOR A PURCHASE PRICE EQUAL TO THE OUTSTANDING PRINCIPAL AMOUNT OF THE
LOANS PAYABLE TO SUCH LENDER PLUS ANY ACCRUED BUT UNPAID INTEREST ON SUCH LOANS
AND ALL ACCRUED BUT UNPAID FEES OWED TO SUCH LENDER AND ANY OTHER AMOUNTS
PAYABLE TO SUCH LENDER UNDER THIS AGREEMENT, AND TO ASSUME ALL THE OBLIGATIONS
OF SUCH LENDER HEREUNDER, AND, UPON SUCH PURCHASE AND ASSUMPTION (PURSUANT TO AN
ASSIGNMENT AGREEMENT), SUCH LENDER SHALL NO LONGER BE A PARTY HERETO OR HAVE ANY
RIGHTS HEREUNDER (OTHER THAN RIGHTS WITH RESPECT TO INDEMNITIES AND SIMILAR
RIGHTS APPLICABLE TO SUCH LENDER PRIOR TO THE DATE OF SUCH PURCHASE AND
ASSUMPTION) AND SHALL BE RELIEVED FROM ALL OBLIGATIONS TO THE COMPANY HEREUNDER,
AND THE REPLACEMENT LENDER SHALL SUCCEED TO THE RIGHTS AND OBLIGATIONS OF SUCH
LENDER HEREUNDER.
8.8
CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS.
DETERMINATIONS AND STATEMENTS OF ANY LENDER PURSUANT TO SECTION 8.1, 8.2, 8.3 OR
8.4 SHALL BE CONCLUSIVE ABSENT DEMONSTRABLE ERROR.
LENDERS MAY USE REASONABLE
AVERAGING AND ATTRIBUTION METHODS IN DETERMINING COMPENSATION UNDER SECTIONS 8.1
AND 8.4, AND THE PROVISIONS OF SUCH SECTIONS SHALL SURVIVE REPAYMENT OF THE
OBLIGATIONS, CANCELLATION OF ANY NOTES, EXPIRATION OR TERMINATION OF THE LETTERS
OF CREDIT AND TERMINATION OF THIS AGREEMENT.
34
SECTION 9
REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this Agreement
and to induce the Lenders to make Loans and issue and participate in Letters of
Credit hereunder, the Company represents and warrants to the Administrative
Agent and the Lenders that:
9.1
ORGANIZATION.
EACH LOAN PARTY IS VALIDLY EXISTING AND