PARENT AND THE BORROWER.
(W)
DEFAULTING LENDERS.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT
TO THE CONTRARY, IF ANY LENDER BECOMES A DEFAULTING LENDER, THEN THE FOLLOWING
PROVISIONS SHALL APPLY FOR SO LONG AS SUCH LENDER IS A DEFAULTING LENDER:
(I) IF ANY SWINGLINE EXPOSURE OR LC EXPOSURE EXISTS AT THE TIME A LENDER IS A
DEFAULTING LENDER, THE BORROWER SHALL WITHIN ONE BUSINESS DAY FOLLOWING NOTICE
BY THE PAYING AGENT (I) PREPAY SUCH SWINGLINE EXPOSURE OR, IF AGREED BY THE
APPLICABLE SWINGLINE LENDER OR LENDERS, CASH COLLATERALIZE THE SWINGLINE
EXPOSURE OF THE DEFAULTING LENDER ON TERMS SATISFACTORY TO THE SWINGLINE LENDER
OR LENDERS AND (II) CASH COLLATERALIZE SUCH DEFAULTING LENDER'S LC EXPOSURE IN
ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 2.06(J) FOR SO LONG AS SUCH
LC EXPOSURE IS OUTSTANDING; AND
(II) THE SWINGLINE LENDER SHALL NOT BE REQUIRED TO FUND ANY SWINGLINE LOAN AND
THE ISSUING BANK SHALL NOT BE REQUIRED TO ISSUE, AMEND OR INCREASE ANY LETTER OF
CREDIT UNLESS IT IS SATISFIED THAT CASH COLLATERAL WILL BE PROVIDED BY THE
BORROWER IN ACCORDANCE WITH SECTION 2.23(A).
SECTION 14.
REPRESENTATIONS AND WARRANTIES
Each of Parent and the Borrower represents and warrants to the Lenders that:
(A)
ORGANIZATION.
EACH OF PARENT AND THE BORROWER IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION.
(B)
POWERS; AUTHORIZATION; NO CONFLICTS; ENFORCEABILITY.
THE TRANSACTIONS ARE
WITHIN EACH LOAN PARTY'S CORPORATE POWERS, HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION, AND DO NOT CONTRAVENE (A) ANY LOAN PARTY'S CHARTER
OR BY‐LAWS OR (B) LAW OR ANY CONTRACTUAL RESTRICTION BINDING ON OR AFFECTING ANY
LOAN PARTY.
THIS AGREEMENT HAS BEEN, AND EACH OF THE OTHER LOAN DOCUMENTS TO
WHICH ANY LOAN PARTY IS TO BE A PARTY WHEN DELIVERED HEREUNDER WILL HAVE BEEN,
DULY EXECUTED AND DELIVERED BY EACH LOAN PARTY THAT IS A PARTY HERETO OR
THERETO, AS APPLICABLE.
THIS AGREEMENT IS, AND EACH OF THE OTHER LOAN DOCUMENTS
TO WHICH ANY LOAN PARTY IS TO BE A PARTY WHEN DELIVERED WILL BE, THE LEGAL,
VALID AND BINDING OBLIGATION OF EACH LOAN PARTY THAT IS A PARTY HERETO OR
THERETO, AS APPLICABLE, ENFORCEABLE AGAINST EACH SUCH LOAN PARTY IN ACCORDANCE
WITH ITS TERMS.
(C)
APPROVALS.
NO AUTHORIZATION OR APPROVAL OR OTHER ACTION BY, AND NO NOTICE
TO OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER THIRD PARTY IS
REQUIRED FOR THE DUE EXECUTION, DELIVERY AND PERFORMANCE BY ANY LOAN PARTY OF
ANY LOAN DOCUMENT TO WHICH IT IS TO BE A PARTY, THE BORROWING OF THE LOANS, THE
USE OF THE PROCEEDS THEREOF OR THE ISSUANCE OF LETTERS OF CREDIT HEREUNDER.
(D)
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE CONSOLIDATED BALANCE SHEET OF PARENT AND ITS SUBSIDIARIES AS AT
FEBRUARY 2, 2008, AND THE RELATED CONSOLIDATED STATEMENTS OF INCOME AND CASH
FLOWS OF PARENT AND ITS SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED, ACCOMPANIED
BY AN OPINION OF KPMG LLP, INDEPENDENT PUBLIC ACCOUNTANTS, AND THE CONSOLIDATED
BALANCE