LC ISSUER FROM LIABILITY TO THE BORROWERS TO THE EXTENT
OF ANY DIRECT DAMAGES (AS OPPOSED TO CONSEQUENTIAL DAMAGES, CLAIMS IN RESPECT OF
WHICH ARE HEREBY WAIVED BY THE BORROWERS TO THE EXTENT PERMITTED BY APPLICABLE
LAW) SUFFERED BY THE BORROWERS THAT ARE CAUSED BY THE LC ISSUER'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
3.5
RELIANCE BY THE LC ISSUER AND THE ADMINISTRATIVE AGENT.
TO THE
EXTENT NOT INCONSISTENT WITH SECTION 3.4, THE LC ISSUER AND THE ADMINISTRATIVE
AGENT SHALL BE ENTITLED TO RELY, AND SHALL BE FULLY PROTECTED IN RELYING UPON,
ANY LETTER OF CREDIT, DRAFT WRITING, RESOLUTION, NOTICE, CONSENT, CERTIFICATE,
AFFIDAVIT, LETTER, CABLEGRAM, TELEGRAM, TELECOPY, TELEX OR TELETYPE MESSAGE,
STATEMENT, ORDER OR OTHER DOCUMENT BELIEVED BY IT TO BE GENUINE AND CORRECT AND
TO HAVE BEEN SIGNED, SENT OR MADE BY THE PROPER PERSON OR PERSONS AND UPON
ADVICE AND STATEMENTS OF LEGAL COUNSEL, INDEPENDENT ACCOUNTANTS AND OTHER
EXPERTS SELECTED BY THE LC ISSUER OR THE ADMINISTRATIVE AGENT.
SECTION IV
CONDITIONS OF LOANS AND LETTERS OF CREDIT
4.1
CONDITIONS PRECEDENT TO INITIAL LOANS AND LETTERS OF CREDIT.
THE
OBLIGATION OF THE LENDERS TO MAKE THE INITIAL LOANS AND OF THE LC ISSUER TO
ISSUE THE INITIAL LETTER OF CREDIT IS SUBJECT TO THE SATISFACTION OF THE
FOLLOWING CONDITIONS PRECEDENT ON OR PRIOR TO THE CLOSING DATE:
(A)
THE ADMINISTRATIVE AGENT'S RECEIPT OF THE FOLLOWING, EACH OF WHICH
SHALL BE ORIGINALS, 'PDF' FORMAT OR TELECOPIES (FOLLOWED PROMPTLY BY ORIGINALS),
EACH PROPERLY EXECUTED BY A RESPONSIBLE OFFICER OF THE SIGNING LOAN PARTY UNLESS
OTHERWISE SPECIFIED, EACH DATED THE CLOSING DATE (OR, IN THE CASE OF
CERTIFICATES OF GOVERNMENTAL OFFICIALS, A RECENT DATE
44
BEFORE THE CLOSING DATE) AND EACH IN FORM AND SUBSTANCE SATISFACTORY TO THE
ADMINISTRATIVE AGENT:
(I)
EXECUTED COUNTERPARTS OF THIS AGREEMENT, SUFFICIENT IN NUMBER FOR
DISTRIBUTION TO THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWERS;
(II)
NOTES EXECUTED BY THE BORROWERS IN FAVOR OF EACH LENDER
REQUESTING NOTES;
(III)
A SECURITY AGREEMENT IN SUBSTANTIALLY THE FORM OF EXHIBIT G-1, A
COLLATERAL ASSIGNMENT OF CONTRACTS IN THE FORM OF EXHIBIT G-2 AND AN
INTELLECTUAL PROPERTY SECURITY AGREEMENT IN THE FORM OF EXHIBIT G-6 (TOGETHER
WITH EACH OTHER SECURITY AGREEMENT AND SECURITY AGREEMENT SUPPLEMENT DELIVERED
PURSUANT TO SECTION 6.12, IN EACH CASE AS AMENDED, COLLECTIVELY, THE "SECURITY
AGREEMENT"), DULY EXECUTED BY EACH LOAN PARTY, AND A PLEDGE AGREEMENT (THE
"PLEDGE AGREEMENT") DULY EXECUTED BY THE PARENT IN SUBSTANTIALLY THE FORM OF
EXHIBIT H, TOGETHER WITH (SUBJECT TO THE PROVISIONS OF SECTION 4.1(M)):
(A)
CERTIFICATES REPRESENTING THE PLEDGED EQUITY INTERESTS REFERRED TO
IN THE PLEDGE AGREEMENT (IF CERTIFICATED) ACCOMPANIED BY UNDATED STOCK POWERS
EXECUTED IN BLANK,
(B)
STAMPED RECEIPT COPIES OF PROPER FINANCING STATEMENTS, DULY FILED
ON OR BEFORE THE CLOSING DATE UNDER THE UNIFORM COMMERCIAL CODE OF ALL
JURISDICTIONS THAT THE ADMINISTRATIVE AGENT MAY DEEM REASONABLY NECESSARY OR
DESIRABLE IN ORDER TO PERFECT THE ENCUMBRANCES CREATED UNDER THE SECURITY
AGREEMENT AND THE PLEDGE AGREEMENT, COVERING THE COLLATERAL DESCRIBED IN THE
SECURITY AGREEMENT, AND THE PLEDGE AGREEMENT,
(C)
COMPLETED REQUESTS