making or incurrence of
Advances) or any Event of Default shall be effective for purposes of the
conditions precedent to the making of Advances unless the same shall be in
writing and signed by Lenders holding at least a majority of the Commitments in
respect of the Revolving Facility.
Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.3 shall be binding
upon Agent, each Lender and the Credit Parties.
10.4
SURVIVAL AND TERMINATION
(A)
ALL OBLIGATIONS, COVENANTS, AGREEMENTS, REPRESENTATIONS,
WARRANTIES, WAIVERS AND INDEMNITIES MADE BY EACH CREDIT PARTY IN THE LOAN
DOCUMENTS SHALL SURVIVE THE EXECUTION AND DELIVERY OF THE LOAN DOCUMENTS, THE
CLOSING, THE MAKING AND FUNDING OF THE LOANS AND ANY TERMINATION OF THIS
AGREEMENT UNTIL ALL OBLIGATIONS (OTHER THAN CONTINGENT INDEMNIFICATION
OBLIGATIONS TO THE EXTENT NO CLAIM GIVING RISE THERETO HAS BEEN ASSERTED) ARE
FULLY PERFORMED AND INDEFEASIBLY PAID IN FULL IN CASH AND ALL COMMITMENTS HAVE
BEEN TERMINATED; PROVIDED, THAT, THE OBLIGATIONS AND PROVISIONS OF SECTIONS
10.1, 10.3, 10.4, 12.5, 12.6, 12.9,
47
12.11, 12.12 AND 12.13, ARTICLE XI AND ARTICLE XIII SHALL SURVIVE THE
TERMINATION OF THE LOAN DOCUMENTS AND ANY PAYMENT, IN FULL OR IN PART, OF THE
OBLIGATIONS.
(B)
ALL LOANS AND OTHER OBLIGATIONS SHALL BE DUE AND PAYABLE IN FULL
IN CASH, IF NOT EARLIER IN ACCORDANCE WITH THIS AGREEMENT, ON THE MATURITY
DATE.
ALL OF AGENT'S AND LENDERS' RIGHTS AND REMEDIES AND THE LIENS IN THE
COLLATERAL SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL, AND THIS AGREEMENT
SHALL TERMINATE WHEN ALL OBLIGATIONS HAVE BEEN FULLY PERFORMED AND INDEFEASIBLY
PAID IN FULL IN CASH AND CREDIT PARTIES SHALL HAVE EXECUTED AND DELIVERED
RELEASES IN FAVOR OF AGENT AND LENDERS IN FORM AND SUBSTANCE SATISFACTORY TO
AGENT, IN ITS PERMITTED DISCRETION (PROVIDED, HOWEVER, THAT THE RELEASE MAY
EXCLUDE CLAIMS FILED BY A CREDIT PARTY AGAINST AGENT OR A LENDER PRIOR TO THE
PAYOFF CONTEMPLATED IN THIS SECTION 10.4(B), ARISING OUT OF THE GROSS
NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD OF AGENT OR SUCH LENDER).
ACCORDINGLY,
EACH CREDIT PARTY WAIVES ANY RIGHT IT MAY HAVE UNDER THE UCC (TO THE EXTENT THE
UCC APPLIES) TO DEMAND THE FILING OF TERMINATION STATEMENTS WITH RESPECT TO THE
COLLATERAL OTHER THAN SUCH RIGHT IN CONNECTION WITH THE RELEASE OF LIENS
PURSUANT TO SALES OR OTHER DISPOSITIONS OF ASSETS EXPRESSLY PERMITTED UNDER THE
TERMS OF THIS AGREEMENT, AND AGENT SHALL NOT BE REQUIRED TO PROVIDE SUCH
TERMINATION STATEMENTS OR TO FILE THEM WITH ANY FILING OFFICE UNLESS AND UNTIL
ALL CONDITIONS TO THE TERMINATION OF THIS AGREEMENT AND THE PAYMENT AND
PERFORMANCE OF THE OBLIGATIONS ARE SATISFIED IN A MANNER ACCEPTABLE TO AGENT, IN
ITS PERMITTED DISCRETION.
XI.
AGENT PROVISIONS; SETTLEMENT
11.1
AGENT
(A)
APPOINTMENT.
IN ADDITION TO ANY APPOINTMENTS IN THE TERM LOAN
DOCUMENTS, EACH LENDER HEREBY DESIGNATES AND APPOINTS CAPITALSOURCE (I) AS THE
ADMINISTRATIVE AGENT, PAYMENT AGENT AND COLLATERAL AGENT UNDER THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS AND (II) TO HOLD ALL OF THE RIGHTS AND INTERESTS
CREATED BY