LENDER.
8.8
CONCLUSIVENESS OF STATEMENTS; SURVIVAL OF
PROVISIONS.
DETERMINATIONS AND STATEMENTS OF ANY LENDER PURSUANT TO SECTIONS
8.1, 8.2, 8.3 OR 8.4 SHALL BE CONCLUSIVE ABSENT DEMONSTRABLE ERROR.
LENDERS 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 ANY NOTES, EXPIRATION OR
TERMINATION OF THE LETTERS OF CREDIT AND TERMINATION OF THIS AGREEMENT.
SECTION 9
REPRESENTATIONS AND WARRANTIES.
To induce the Administrative Agent and the Lenders to enter into this Agreement
and to induce the Lenders to make Loans and issue and participate in Letters of
Credit hereunder, the Company represents and warrants to the Administrative
Agent and the Lenders that:
9.1
ORGANIZATION.
EACH LOAN PARTY IS VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF
INCORPORATION; 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
38
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, THE COMPANY IS DULY AUTHORIZED TO BORROW MONIES HEREUNDER AND EACH LOAN
PARTY 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 COMPANY
HEREUNDER, DO NOT AND WILL NOT (A) REQUIRE ANY CONSENT OR APPROVAL OF ANY
GOVERNMENTAL AGENCY OR AUTHORITY (OTHER THAN ANY CONSENT OR APPROVAL WHICH HAS
BEEN OBTAINED AND IS IN FULL FORCE AND EFFECT), (B) CONFLICT WITH (I) ANY
PROVISION OF LAW APPLICABLE TO SUCH LOAN PARTY, THE VIOLATION OF WHICH COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, (II) THE CHARTER,
BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF ANY LOAN PARTY OR (III) ANY
AGREEMENT, INDENTURE, INSTRUMENT OR OTHER DOCUMENT, OR ANY JUDGMENT, ORDER OR
DECREE, WHICH IS BINDING UPON ANY LOAN PARTY OR ANY OF THEIR RESPECTIVE
PROPERTIES OR (C) REQUIRE, OR RESULT IN, THE CREATION OR IMPOSITION OF ANY LIEN
ON ANY ASSET OF ANY LOAN PARTY (OTHER THAN LIENS IN FAVOR OF THE ADMINISTRATIVE
AGENT CREATED PURSUANT TO THE COLLATERAL DOCUMENTS).
9.3
VALIDITY AND BINDING NATURE.
EACH OF THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH ANY LOAN PARTY IS A PARTY IS THE
LEGAL, VALID AND BINDING OBLIGATION OF SUCH PERSON, ENFORCEABLE AGAINST SUCH
PERSON IN ACCORDANCE WITH ITS TERMS, SUBJECT TO BANKRUPTCY, FRAUDULENT TRANSFER,
MORATORIUM, REORGANIZATION, INSOLVENCY AND SIMILAR LAWS AFFECTING THE
ENFORCEABILITY OF CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF
EQUITY.
9.4
FINANCIAL CONDITION.
THE AUDITED
CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY AND ITS SUBSIDIARIES AS AT
DECEMBER 31, 2007, AND THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE
COMPANY AND ITS SUBSIDIARIES AS