THE DATE OF "ANY EXTENSION OF CREDIT" IN SUCH SECTION 6.2 SHALL BE
DEEMED TO REFER TO THE EFFECTIVE DATE OF SUCH INCREMENTAL AMENDMENT) AND SUCH
OTHER CONDITIONS AS THE PARTIES THERETO SHALL AGREE.
NO LENDER SHALL BE
OBLIGATED TO PROVIDE ANY INCREMENTAL FACILITY, UNLESS IT SO AGREES.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, Holdings and the
Borrower hereby represent and warrant to each Agent and each Lender that:
5.1.
FINANCIAL CONDITION.
THE AUDITED CONSOLIDATED BALANCE SHEET OF
HOLDINGS AND ITS CONSOLIDATED SUBSIDIARIES AS AT DECEMBER 31, 2007, AND THE
RELATED CONSOLIDATED STATEMENTS OF INCOME AND OF CASH FLOWS FOR THE FISCAL YEAR
ENDED ON SUCH DATE, REPORTED ON BY AND ACCOMPANIED BY AN UNQUALIFIED REPORT FROM
DELOITTE & TOUCHE LLP, PRESENT FAIRLY THE CONSOLIDATED FINANCIAL CONDITION OF
HOLDINGS AND ITS CONSOLIDATED SUBSIDIARIES AS AT SUCH DATE, AND THE CONSOLIDATED
RESULTS OF ITS OPERATIONS AND ITS CONSOLIDATED CASH FLOWS FOR THE FISCAL YEAR
THEN ENDED.
ALL SUCH FINANCIAL STATEMENTS, INCLUDING THE RELATED SCHEDULES AND
NOTES THERETO, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY
THROUGHOUT THE PERIODS INVOLVED (EXCEPT AS APPROVED BY THE AFOREMENTIONED FIRM
OF ACCOUNTANTS AND DISCLOSED THEREIN).
NO GROUP MEMBER HAS ANY MATERIAL
GUARANTEE OBLIGATIONS, CONTINGENT LIABILITIES AND LIABILITIES FOR TAXES, OR ANY
LONG-TERM LEASES OR UNUSUAL FORWARD OR LONG-TERM COMMITMENTS, INCLUDING ANY
INTEREST RATE OR FOREIGN CURRENCY SWAP OR EXCHANGE TRANSACTION OR OTHER
OBLIGATION IN RESPECT OF DERIVATIVES, THAT ARE NOT REFLECTED IN THE MOST RECENT
FINANCIAL STATEMENTS REFERRED TO IN THIS PARAGRAPH OR DISCLOSED IN THIS
SECTION 5..
5.2.
NO CHANGE.
SINCE DECEMBER 31, 2007, THERE HAS BEEN NO DEVELOPMENT
OR EVENT THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
68
5.3.
CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
EACH GROUP MEMBER
(A) IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF
THE JURISDICTION OF ITS ORGANIZATION, (B) HAS THE POWER AND AUTHORITY, AND THE
LEGAL RIGHT, TO OWN AND OPERATE ITS PROPERTY, TO LEASE THE PROPERTY IT OPERATES
AS LESSEE AND TO CONDUCT THE BUSINESS IN WHICH IT IS CURRENTLY ENGAGED, (C) IS
DULY QUALIFIED AS A FOREIGN CORPORATION AND IN GOOD STANDING UNDER THE LAWS OF
EACH JURISDICTION WHERE ITS OWNERSHIP, LEASE OR OPERATION OF PROPERTY OR THE
CONDUCT OF ITS BUSINESS REQUIRES SUCH QUALIFICATION, EXCEPT TO THE EXTENT THAT
THE FAILURE TO SO QUALIFY COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT AND (D) IS IN
COMPLIANCE WITH ALL REQUIREMENTS OF LAW EXCEPT TO THE EXTENT THAT THE FAILURE TO
COMPLY THEREWITH COULD NOT, IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
5.4.
POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
EACH LOAN PARTY
HAS THE POWER AND AUTHORITY, AND THE LEGAL RIGHT, TO MAKE, DELIVER AND PERFORM
THE LOAN DOCUMENTS TO WHICH IT IS A PARTY AND, IN