REQUESTS COMPENSATION UNDER
SECTION 3.04, OR IF ANY BORROWER IS REQUIRED TO PAY ANY ADDITIONAL AMOUNT TO ANY
LENDER OR ANY GOVERNMENTAL AUTHORITY FOR THE ACCOUNT OF ANY LENDER PURSUANT TO
SECTION 3.01, THE COMPANY MAY REPLACE SUCH LENDER IN ACCORDANCE WITH SECTION
10.13.
3.07
SURVIVAL.
ALL OF THE BORROWERS' OBLIGATIONS UNDER THIS ARTICLE III
SHALL SURVIVE TERMINATION OF THE AGGREGATE COMMITMENTS AND REPAYMENT OF ALL
OTHER OBLIGATIONS HEREUNDER.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01
CONDITIONS OF INITIAL CREDIT EXTENSION.
THE OBLIGATION OF THE L/C
ISSUER AND EACH LENDER TO MAKE ITS INITIAL CREDIT EXTENSION HEREUNDER IS SUBJECT
TO SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(A)
THE ADMINISTRATIVE AGENT'S RECEIPT OF THE FOLLOWING, EACH OF WHICH
SHALL BE ORIGINALS OR TELECOPIES (FOLLOWED PROMPTLY BY ORIGINALS) UNLESS
OTHERWISE SPECIFIED, EACH PROPERLY EXECUTED BY A RESPONSIBLE OFFICER OF THE
SIGNING LOAN PARTY (OR, IN THE CASE OF THE INITIAL DESIGNATED BORROWER, AN
OFFICER OF THE INITIAL DESIGNATED BORROWER AUTHORIZED TO REPRESENT THE INITIAL
DESIGNATED BORROWER, AS EVIDENCED BY A RECENT EXTRACT FROM THE DUTCH TRADE
REGISTER OR OTHERWISE), EACH DATED THE CLOSING DATE (OR, IN THE CASE OF
CERTIFICATES OF GOVERNMENTAL OFFICIALS, A RECENT DATE BEFORE THE CLOSING DATE)
AND EACH IN FORM AND SUBSTANCE SATISFACTORY TO THE ADMINISTRATIVE AGENT AND EACH
OF THE LENDERS:
(I)
COUNTERPARTS OF (I) THIS AGREEMENT EXECUTED BY EACH BORROWER AND
(II) A GUARANTY EXECUTED BY EACH BORROWER AND EACH MATERIAL DOMESTIC SUBSIDIARY
AS OF THE CLOSING DATE, SUFFICIENT IN NUMBER FOR DISTRIBUTION TO THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE COMPANY;
(II)
NOTES EXECUTED BY THE BORROWERS IN FAVOR OF EACH LENDER
REQUESTING NOTES;
(III)
SUCH CERTIFICATES OR RESOLUTIONS OR OTHER ACTION, INCUMBENCY
CERTIFICATES AND/OR OTHER CERTIFICATES OF RESPONSIBLE OFFICERS OF EACH LOAN
PARTY AS THE ADMINISTRATIVE
57
AGENT MAY REQUIRE EVIDENCING THE IDENTITY, AUTHORITY AND CAPACITY OF EACH
RESPONSIBLE OFFICER THEREOF AUTHORIZED TO ACT AS A RESPONSIBLE OFFICER IN
CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH SUCH LOAN
PARTY IS A PARTY;
(IV)
SUCH DOCUMENTS AND CERTIFICATIONS AS THE ADMINISTRATIVE AGENT MAY
REASONABLY REQUIRE TO EVIDENCE THAT EACH LOAN PARTY IS DULY ORGANIZED OR FORMED,
AND THAT EACH LOAN PARTY IS VALIDLY EXISTING, IN GOOD STANDING AND QUALIFIED TO
ENGAGE IN BUSINESS IN ITS JURISDICTION OF ORGANIZATION;
(V)
A FAVORABLE OPINION OF (I) GOODWIN PROCTER LLP, U.S. COUNSEL TO
THE LOAN PARTIES, IN THE FORM ATTACHED HERETO AS EXHIBIT I-1, AND (II) CMS DERKS
STAR BUSMANN, DUTCH COUNSEL TO THE INITIAL DESIGNATED BORROWER, IN THE FORM
ATTACHED HERETO AS EXHIBIT I-2, IN EACH CASE, ADDRESSED TO THE ADMINISTRATIVE
AGENT AND EACH LENDER, IN FORM AND SUBSTANCE ACCEPTABLE TO THE ADMINISTRATIVE
AGENT AND EACH LENDER;
(VI)
A CERTIFICATE OF A RESPONSIBLE OFFICER OF EACH LOAN PARTY EITHER
(A) ATTACHING COPIES OF ALL CONSENTS, LICENSES AND APPROVALS REQUIRED IN
CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH LOAN PARTY AND
THE VALIDITY AGAINST SUCH LOAN PARTY OF THE LOAN DOCUMENTS TO WHICH IT IS A
PARTY, AND SUCH CONSENTS,