LENDER AND THE
ADMINISTRATIVE AGENT, REQUIRE SUCH LENDER TO ASSIGN AND DELEGATE, WITHOUT
RECOURSE (IN ACCORDANCE WITH AND SUBJECT TO THE RESTRICTIONS CONTAINED IN
SECTION 11.04), ALL ITS INTERESTS, RIGHTS AND OBLIGATIONS UNDER THE LOAN
DOCUMENTS TO AN ASSIGNEE THAT SHALL ASSUME SUCH OBLIGATIONS (WHICH ASSIGNEE MAY
BE ANOTHER LENDER, IF A LENDER ACCEPTS SUCH ASSIGNMENT); PROVIDED THAT (I) THE
COMPANY SHALL HAVE RECEIVED THE PRIOR WRITTEN CONSENT OF THE ADMINISTRATIVE
AGENT (AND IF A REVOLVING COMMITMENT IS BEING ASSIGNED, THE ISSUING BANK), WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD AND (II) SUCH LENDER SHALL HAVE
RECEIVED PAYMENT OF AN AMOUNT EQUAL TO THE OUTSTANDING PRINCIPAL OF ITS LOANS
AND PARTICIPATIONS IN LC DISBURSEMENTS, ACCRUED INTEREST THEREON, ACCRUED FEES
AND ALL OTHER AMOUNTS PAYABLE TO IT HEREUNDER, FROM THE ASSIGNEE OR THE
COMPANY.
A LENDER SHALL NOT BE REQUIRED TO MAKE ANY SUCH ASSIGNMENT AND
DELEGATION IF, PRIOR THERETO, AS A RESULT OF A WAIVER BY SUCH LENDER OR
OTHERWISE, THE CIRCUMSTANCES ENTITLING THE COMPANY TO REQUIRE SUCH
ASSIGNMENT
AND DELEGATION CEASE TO APPLY.
SECTION 2.20.
DESIGNATION OF US BORROWERS, SWISS BORROWERS AND JAPANESE
BORROWERS.
THE COMPANY MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE ANY US
SUBSIDIARY AS A US BORROWER, ANY SWISS SUBSIDIARY AS A SWISS BORROWER, OR ANY
JAPANESE SUBSIDIARY AS A JAPANESE BORROWER, BY DELIVERY TO THE ADMINISTRATIVE
AGENT OF A BORROWING SUBSIDIARY AGREEMENT EXECUTED BY SUCH SUBSIDIARY AND THE
COMPANY, AND UPON SUCH DELIVERY SUCH SUBSIDIARY SHALL FOR ALL PURPOSES OF THIS
AGREEMENT BE A US BORROWER, A SWISS BORROWER OR A JAPANESE BORROWER, AS THE CASE
MAY BE, AND A PARTY TO THIS AGREEMENT UNTIL THE COMPANY SHALL HAVE EXECUTED AND
DELIVERED TO THE ADMINISTRATIVE AGENT A BORROWING SUBSIDIARY TERMINATION WITH
RESPECT TO SUCH
47
SUBSIDIARY, WHEREUPON SUCH SUBSIDIARY SHALL CEASE TO BE A US BORROWER, A SWISS
BORROWER OR A JAPANESE BORROWER, AS THE CASE MAY BE, AND A PARTY TO THIS
AGREEMENT.
NOTWITHSTANDING THE PRECEDING SENTENCE, NO BORROWING SUBSIDIARY
TERMINATION WILL BECOME EFFECTIVE AS TO ANY US BORROWER, SWISS BORROWER OR
JAPANESE BORROWER AT A TIME WHEN ANY PRINCIPAL OF OR INTEREST ON ANY LOAN TO
SUCH US BORROWER, SWISS BORROWER OR JAPANESE BORROWER SHALL BE OUTSTANDING
HEREUNDER, PROVIDED THAT SUCH BORROWING SUBSIDIARY TERMINATION SHALL BE
EFFECTIVE TO TERMINATE THE RIGHT OF SUCH US BORROWER, SWISS BORROWER OR JAPANESE
BORROWER, AS THE CASE MAY BE, TO REQUEST OR RECEIVE FURTHER BORROWINGS UNDER
THIS AGREEMENT.
AS SOON AS PRACTICABLE UPON RECEIPT OF A BORROWING SUBSIDIARY
AGREEMENT, THE ADMINISTRATIVE AGENT SHALL SEND A COPY THEREOF TO EACH LENDER.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and each other Borrower represents and warrants as follows:
SECTION 3.01.
CORPORATE EXISTENCE AND STANDING.
THE COMPANY AND EACH MATERIAL
SUBSIDIARY IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF ITS JURISDICTION OF INCORPORATION AND HAS ALL REQUISITE AUTHORITY TO
CONDUCT ITS BUSINESS IN EACH JURISDICTION IN WHICH THE FAILURE SO TO QUALIFY
WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE BUSINESS,