New York 10022
Attention:
David A. Brittenham, Esq.
Facsimile:
(212) 909-6836
Telephone:
(212) 909-6000
102
The Administrative Agent:
JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, New York 10017
Attention:
Gerry Murray
Facsimile:
(212) 270-1063
Telephone:
(212) 270-4300
with copies to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention:
Arthur D. Robinson, Esq.;
John C. Ericson, Esq.
Facsimile:
(212) 455-2502
Telephone:
(212) 455-2000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.4 or 3.8 shall not be effective
until received.
(B)
WITHOUT IN ANY WAY LIMITING THE OBLIGATION OF ANY LOAN PARTY AND
ITS SUBSIDIARIES TO CONFIRM IN WRITING ANY TELEPHONIC NOTICE PERMITTED TO BE
GIVEN HEREUNDER, THE ADMINISTRATIVE AGENT MAY, PRIOR TO RECEIPT OF WRITTEN
CONFIRMATION, ACT WITHOUT LIABILITY UPON THE BASIS OF SUCH TELEPHONIC NOTICE
BELIEVED BY THE ADMINISTRATIVE AGENT IN GOOD FAITH TO BE FROM A RESPONSIBLE
OFFICER.
10.3
NO WAIVER; CUMULATIVE REMEDIES.
NO FAILURE TO EXERCISE AND NO
DELAY IN EXERCISING, ON THE PART OF THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY
LOAN PARTY, ANY RIGHT, REMEDY, POWER OR PRIVILEGE HEREUNDER OR UNDER THE OTHER
LOAN DOCUMENTS SHALL OPERATE AS A WAIVER THEREOF; NOR SHALL ANY SINGLE OR
PARTIAL EXERCISE OF ANY RIGHT, REMEDY, POWER OR PRIVILEGE HEREUNDER PRECLUDE ANY
OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, REMEDY,
POWER OR PRIVILEGE.
THE RIGHTS, REMEDIES, POWERS AND PRIVILEGES HEREIN PROVIDED
ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS, REMEDIES, POWERS AND PRIVILEGES
PROVIDED BY LAW.
10.4
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS
AND WARRANTIES MADE HEREUNDER AND IN THE OTHER LOAN DOCUMENTS (OR IN ANY
AMENDMENT, MODIFICATION OR SUPPLEMENT HERETO OR THERETO) AND IN ANY CERTIFICATE
DELIVERED PURSUANT HERETO OR SUCH OTHER LOAN DOCUMENTS SHALL SURVIVE THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE MAKING OF THE LOANS HEREUNDER.
10.5
PAYMENT OF EXPENSES AND TAXES.
THE BORROWER AGREES (A) TO PAY OR
REIMBURSE THE AGENTS AND THE OTHER REPRESENTATIVES FOR (1) ALL THEIR REASONABLE
OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN CONNECTION WITH (I) THE SYNDICATION
OF THE FACILITY AND THE DEVELOPMENT, PREPARATION, EXECUTION AND DELIVERY OF, AND
ANY AMENDMENT, SUPPLEMENT OR MODIFICATION TO, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND ANY OTHER DOCUMENTS PREPARED IN CONNECTION HEREWITH OR THEREWITH,
(II) THE CONSUMMATION AND ADMINISTRATION OF THE TRANSACTIONS (INCLUDING THE
SYNDICATION OF THE SENIOR INTERIM LOAN COMMITMENTS CONTEMPLATED HEREBY AND
THEREBY) AND (III) EFFORTS TO MONITOR THE LOANS, AND (2) (I) THE REASONABLE FEES
AND DISBURSEMENTS OF SIMPSON THACHER & BARTLETT LLP, AND SUCH OTHER SPECIAL OR
LOCAL COUNSEL,
103
CONSULTANTS, ADVISORS, APPRAISERS AND AUDITORS WHOSE RETENTION (OTHER THAN
DURING THE CONTINUANCE OF AN EVENT OF DEFAULT) IS APPROVED BY THE BORROWER,
(B) TO PAY OR REIMBURSE EACH LENDER, THE LEAD ARRANGERS AND THE AGENTS FOR ALL
THEIR REASONABLE AND DOCUMENTED COSTS AND EXPENSES INCURRED IN CONNECTION WITH
THE ENFORCEMENT OR PRESERVATION OF ANY RIGHTS UNDER THIS AGREEMENT, THE