MAKE SUCH LOAN; PROVIDED THAT IN SUCH EVENT
FOR THE PURPOSES OF THIS AGREEMENT SUCH LOAN SHALL BE DEEMED TO HAVE BEEN MADE
BY THE BANK AND THE OBLIGATION OF THE COMPANY TO REPAY SUCH LOAN SHALL
NEVERTHELESS BE TO THE BANK AND SHALL BE DEEMED HELD BY IT, TO THE EXTENT OF
SUCH LOAN, FOR THE ACCOUNT OF SUCH BRANCH OR AFFILIATE.
8.6
DISCRETION OF BANK AS TO MANNER OF FUNDING.
NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE BANK SHALL BE ENTITLED TO FUND
AND MAINTAIN ITS FUNDING OF ALL OR ANY PART OF ITS LOANS IN ANY MANNER IT SEES
FIT, IT BEING UNDERSTOOD, HOWEVER, THAT FOR THE PURPOSES OF THIS AGREEMENT ALL
DETERMINATIONS HEREUNDER SHALL BE MADE AS IF THE BANK HAD ACTUALLY FUNDED AND
MAINTAINED EACH EURODOLLAR LOAN DURING EACH INTEREST PERIOD FOR SUCH LOAN
THROUGH THE PURCHASE OF DEPOSITS HAVING A MATURITY CORRESPONDING TO SUCH
INTEREST PERIOD AND BEARING AN INTEREST RATE EQUAL TO THE EURODOLLAR RATE FOR
SUCH INTEREST PERIOD.
8.7
MITIGATION OF CIRCUMSTANCES.
THE BANK SHALL PROMPTLY NOTIFY THE
COMPANY OF ANY EVENT OF WHICH IT HAS KNOWLEDGE WHICH WILL RESULT IN, AND WILL
USE REASONABLE COMMERCIAL EFFORTS AVAILABLE TO IT (AND NOT, IN THE BANK'S SOLE
JUDGMENT, OTHERWISE BE DISADVANTAGEOUS TO THE BANK) TO MITIGATE OR AVOID, (I)
ANY OBLIGATION BY THE COMPANY TO PAY ANY AMOUNT PURSUANT TO SECTION 7.5 OR 8.1
OR (II) THE OCCURRENCE OF ANY CIRCUMSTANCES DESCRIBED IN SECTION 8.2 OR 8.3
(AND, IF THE BANK HAS GIVEN NOTICE OF ANY SUCH EVENT DESCRIBED IN CLAUSE (I) OR
(II) ABOVE AND THEREAFTER SUCH EVENT CEASES TO EXIST, THE BANK SHALL PROMPTLY SO
NOTIFY THE COMPANY).
WITHOUT LIMITING THE FOREGOING, THE BANK WILL DESIGNATE A
DIFFERENT FUNDING OFFICE IF SUCH DESIGNATION WILL AVOID (OR REDUCE THE COST TO
THE COMPANY OF) ANY EVENT DESCRIBED IN CLAUSE (I) OR (II) OF THE PRECEDING
SENTENCE AND SUCH DESIGNATION WILL NOT, IN THE BANK'S SOLE JUDGMENT, BE
OTHERWISE DISADVANTAGEOUS TO THE BANK.
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8.8
CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS.
DETERMINATIONS AND STATEMENTS OF BANK PURSUANT TO SECTION 8.1, 8.2, 8.3 OR 8.4
SHALL BE CONCLUSIVE ABSENT DEMONSTRABLE ERROR.
THE BANK MAY USE REASONABLE
AVERAGING AND ATTRIBUTION METHODS IN DETERMINING COMPENSATION UNDER SECTIONS 8.1
AND 8.4, AND THE PROVISIONS OF SUCH SECTIONS SHALL SURVIVE REPAYMENT OF THE
LOANS, CANCELLATION OF THE NOTE AND TERMINATION OF THIS AGREEMENT.
SECTION 9
WARRANTIES.
To induce the Bank to enter into this Agreement and to induce the Bank to make
Loans hereunder, the Company warrants to the Bank that:
9.1
ORGANIZATION. EACH OF THE COMPANY, THE GUARANTOR AND THEIR
SUBSIDIARIES IS VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF THEIR ORGANIZATION AND IS DULY QUALIFIED TO DO BUSINESS IN EACH
JURISDICTION WHERE, BECAUSE OF THE NATURE OF ITS ACTIVITIES OR PROPERTIES, SUCH
QUALIFICATION IS REQUIRED, EXCEPT FOR SUCH JURISDICTIONS WHERE THE FAILURE TO SO
QUALIFY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
9.2
AUTHORIZATION; NO CONFLICT.
EACH