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 SUCH
LENDER HAD ACTUALLY FUNDED AND MAINTAINED EACH LIBOR 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
LIBOR RATE FOR SUCH INTEREST PERIOD.
8.7
MITIGATION OF CIRCUMSTANCES.
EACH LENDER 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 SUCH
LENDER'S SOLE JUDGMENT, OTHERWISE DISADVANTAGEOUS TO SUCH LENDER) TO MITIGATE OR
AVOID, (I) ANY OBLIGATION BY THE LOAN PARTIES TO PAY ANY AMOUNT PURSUANT TO
SECTION 7.6 OR 8.1 OR (II) THE OCCURRENCE OF ANY CIRCUMSTANCES DESCRIBED IN
SECTION 8.2 OR 8.3 (AND, IF SUCH LENDER HAS GIVEN NOTICE OF ANY SUCH EVENT
DESCRIBED IN CLAUSE (I) OR (II) ABOVE AND THEREAFTER SUCH EVENT CEASES TO EXIST,
SUCH LENDER SHALL PROMPTLY SO NOTIFY THE COMPANY).
WITHOUT LIMITING THE
FOREGOING, EACH LENDER WILL DESIGNATE A DIFFERENT FUNDING OFFICE IF SUCH
DESIGNATION WILL AVOID (OR REDUCE THE COST TO THE LOAN PARTIES OF) ANY EVENT
DESCRIBED IN CLAUSE (I) OR (II) ABOVE AND SUCH DESIGNATION WILL NOT, IN SUCH
LENDER'S SOLE JUDGMENT, BE OTHERWISE DISADVANTAGEOUS TO SUCH LENDER.
8.8
CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF PROVISIONS.
DETERMINATIONS AND STATEMENTS OF ANY LENDER PURSUANT TO SECTION 8.1, 8.2, 8.3 OR
8.4 SHALL BE CONCLUSIVE ABSENT DEMONSTRABLE ERROR.
EACH LENDER 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 OBLIGATIONS, CANCELLATION OF THE NOTE, EXPIRATION OR
TERMINATION OF THE LETTERS OF CREDIT AND TERMINATION OF THIS AGREEMENT.
SECTION 9
REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Agreement and to induce the Lenders to
make Loans and/or issue Letters of Credit hereunder, each Loan Party represents
and warrants to the Lenders that:
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9.1
ORGANIZATION.
EACH LOAN PARTY IS VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION; AND EACH LOAN PARTY
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 LOAN PARTY IS DULY AUTHORIZED TO
EXECUTE AND DELIVER EACH LOAN DOCUMENT TO WHICH IT IS A PARTY, IS DULY
AUTHORIZED TO BORROW MONIES HEREUNDER AND IS DULY AUTHORIZED TO PERFORM ITS
OBLIGATIONS UNDER EACH LOAN DOCUMENT TO WHICH IT IS A PARTY.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY EACH LOAN PARTY OF EACH LOAN DOCUMENT TO WHICH IT IS
A PARTY, AND THE BORROWINGS BY THE LOAN PARTIES HEREUNDER, DO NOT AND WILL NOT
(A) REQUIRE