AGREES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT ANY LENDER SO PURCHASING A
PARTICIPATION IN THE LOANS MADE, OR REIMBURSEMENT OBLIGATIONS OR OTHER
OBLIGATIONS HELD, BY OTHER LENDERS MAY EXERCISE ALL RIGHTS OF SET-OFF, BANKERS'
LIEN, COUNTERCLAIM OR SIMILAR RIGHTS WITH RESPECT TO SUCH PARTICIPATION AS FULLY
AS IF SUCH LENDER WERE A DIRECT HOLDER OF LOANS, REIMBURSEMENT OBLIGATIONS OR
OTHER OBLIGATIONS IN THE AMOUNT OF SUCH PARTICIPATION.
NOTHING CONTAINED HEREIN
SHALL REQUIRE ANY LENDER TO EXERCISE ANY SUCH RIGHT OR SHALL AFFECT THE RIGHT OF
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ANY LENDER TO EXERCISE, AND RETAIN THE BENEFITS OF EXERCISING, ANY SUCH RIGHT
WITH RESPECT TO ANY OTHER INDEBTEDNESS OR OBLIGATION OF ANY BORROWER.
5.
CONDITIONS PRECEDENT.
5.1
INITIAL LOANS, LETTERS OF CREDIT AND
BANKERS' ACCEPTANCES.
THE OBLIGATION OF EACH LENDER OR EACH ISSUER TO MAKE ITS
INITIAL LOANS OR ISSUE OR PARTICIPATE IN THE INITIAL LETTER OF CREDIT HEREUNDER
OR TO ACCEPT AND PURCHASE ITS INITIAL BANKERS' ACCEPTANCE HEREUNDER (WHICHEVER
SHALL FIRST OCCUR) IS SUBJECT TO THE FOLLOWING CONDITIONS PRECEDENT, EACH OF
WHICH SHALL HAVE BEEN FULFILLED OR WAIVED TO THE SATISFACTION OF THE MAJORITY
LENDERS (OR BY ALL OF THE LENDERS TO THE EXTENT THAT SUCH WAIVER REQUIRES
UNANIMOUS CONSENT UNDER SECTION 11.5 HEREOF):
(A)
AUTHORIZATION AND STATUS.
AGENTS SHALL
HAVE RECEIVED (I) COPIES OF THE ORGANIZATIONAL DOCUMENTS OF EACH OBLIGOR
CERTIFIED AS TRUE AND CORRECT BY ITS SECRETARY, ASSISTANT SECRETARY OR OTHER
EQUIVALENT OFFICER, (II) EVIDENCE REASONABLY SATISFACTORY TO AGENTS OF ALL
ACTION TAKEN BY EACH OBLIGOR AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE
OF THE LOAN DOCUMENTS AND ALL OTHER DOCUMENTS RELATED TO THIS AGREEMENT TO WHICH
IT IS A PARTY (INCLUDING, WITHOUT LIMITATION, A CERTIFICATE OF THE SECRETARY,
ASSISTANT SECRETARY OR OTHER EQUIVALENT OFFICER OF EACH SUCH PARTY WHICH IS A
CORPORATION SETTING FORTH THE RESOLUTIONS OF ITS BOARD OF DIRECTORS AUTHORIZING
THE TRANSACTIONS CONTEMPLATED THEREBY), AND (III) SUCH CERTIFICATES AS MAY BE
APPROPRIATE TO DEMONSTRATE THE QUALIFICATION AND, IF RELEVANT, GOOD STANDING OF
EACH OBLIGOR IN THE JURISDICTION OF ITS ORGANIZATION AND IN EACH OTHER
JURISDICTION WHERE THE FAILURE IN WHICH TO QUALIFY COULD REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT.
(B)
INCUMBENCY.
EACH OBLIGOR SHALL HAVE
DELIVERED TO AGENTS A CERTIFICATE IN RESPECT OF THE NAME AND SIGNATURE OF EACH
OF THE OFFICERS OR OTHER AUTHORIZED INDIVIDUALS (I) WHO ARE AUTHORIZED TO SIGN
ON ITS BEHALF THE APPLICABLE LOAN DOCUMENTS AND (II) WHO WILL, UNTIL REPLACED BY
OTHER OFFICER(S) OR OTHER AUTHORIZED INDIVIDUAL(S) DULY AUTHORIZED FOR THAT
PURPOSE, ACT AS ITS REPRESENTATIVES FOR THE PURPOSES OF SIGNING DOCUMENTS AND
GIVING NOTICES AND OTHER COMMUNICATIONS IN CONNECTION WITH THE LOAN DOCUMENTS,
ANY LOAN, THE ISSUANCE OF ANY LETTER OF CREDIT OR THE ACCEPTANCE OF ANY BANKERS'
ACCEPTANCE.
EACH AGENT AND EACH LENDER MAY CONCLUSIVELY RELY ON SUCH
CERTIFICATES UNTIL THEY RECEIVE NOTICE IN WRITING FROM THE APPLICABLE OBLIGOR TO
THE CONTRARY.
(C)
NOTES.
AGENTS SHALL HAVE RECEIVED THE
APPROPRIATE NOTES OF BORROWERS FOR EACH LENDER, DULY COMPLETED AND EXECUTED.