SHALL NOT BECOME EFFECTIVE UNTIL THE DATE ON WHICH EACH OF THE
FOLLOWING CONDITIONS IS SATISFIED (OR WAIVED IN ACCORDANCE WITH SECTION 9.02):
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM
EACH PARTY HERETO EITHER (I) A COUNTERPART OF THIS AGREEMENT SIGNED ON BEHALF OF
SUCH PARTY OR (II) WRITTEN EVIDENCE SATISFACTORY TO THE ADMINISTRATIVE AGENT
(WHICH MAY INCLUDE TELECOPY TRANSMISSION OF A SIGNED SIGNATURE PAGE OF THIS
AGREEMENT) THAT SUCH PARTY HAS SIGNED A COUNTERPART OF THIS AGREEMENT.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED FAVORABLE WRITTEN
OPINIONS (ADDRESSED TO THE ADMINISTRATIVE AGENT AND THE LENDERS AND DATED THE
EFFECTIVE DATE) OF
EACH OF BINGHAM MCCUTCHEN LLP AND PAUL, HASTINGS, JANOFSKY &
WALKER LLP, EACH AS COUNSEL FOR THE BORROWER, ALL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT, AND COVERING SUCH OTHER MATTERS
RELATING TO THE BORROWER, THIS AGREEMENT OR ANY
32
TRANSACTION AS THE REQUIRED LENDERS SHALL REASONABLY REQUEST.
THE BORROWER
HEREBY REQUESTS SUCH COUNSELS TO DELIVER SUCH OPINIONS.
(C)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH DOCUMENTS AND
CERTIFICATES AS THE ADMINISTRATIVE AGENT OR ITS COUNSEL MAY REASONABLY REQUEST
RELATING TO THE ORGANIZATION, EXISTENCE AND GOOD STANDING OF THE BORROWER, THE
AUTHORIZATION OF THE TRANSACTIONS AND ANY OTHER LEGAL MATTERS RELATING TO THE
BORROWER, THIS AGREEMENT OR THE TRANSACTIONS, ALL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ADMINISTRATIVE AGENT AND ITS COUNSEL.
(D)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A CERTIFICATE, DATED
THE EFFECTIVE DATE AND SIGNED BY THE PRESIDENT, A VICE PRESIDENT OR A FINANCIAL
OFFICER OF THE BORROWER, CONFIRMING COMPLIANCE WITH THE CONDITIONS SET FORTH IN
PARAGRAPHS (A) AND (B) OF SECTION 4.02.
(E)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED ALL FEES AND OTHER
AMOUNTS DUE AND PAYABLE ON OR PRIOR TO THE EFFECTIVE DATE, INCLUDING, TO THE
EXTENT INVOICED, REIMBURSEMENT OR PAYMENT OF ALL OUT-OF-POCKET EXPENSES REQUIRED
TO BE REIMBURSED OR PAID BY THE BORROWER HEREUNDER AND UNDER THE MANDATE LETTER.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New
York City time, on March 22, 2007 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02.
EACH CREDIT EVENT.
THE OBLIGATION OF EACH LENDER TO MAKE A LOAN
ON THE OCCASION OF ANY BORROWING IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING
CONDITIONS:
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER SET FORTH IN
THIS AGREEMENT SHALL BE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH BORROWING
(OR, IF ANY SUCH REPRESENTATION OR WARRANTY IS EXPRESSLY STATED TO HAVE BEEN
MADE AS OF A SPECIFIC DATE, AS OF SUCH SPECIFIC DATE).
(B)
AT THE TIME OF AND IMMEDIATELY AFTER GIVING EFFECT TO SUCH