LOANS OF
SUCH LENDER AND SUCH LENDER'S RIGHTS HEREUNDER, WITHOUT RECOURSE TO OR WARRANTY
BY, OR EXPENSE TO, SUCH LENDER FOR A PURCHASE PRICE EQUAL TO THE OUTSTANDING
PRINCIPAL AMOUNT OF THE COMMITTED LOANS PAYABLE TO SUCH LENDER PLUS ANY ACCRUED
BUT UNPAID INTEREST ON SUCH LOANS AND ACCRUED BUT UNPAID FEES IN RESPECT OF SUCH
LENDER'S COMMITMENT AND ANY OTHER AMOUNTS PAYABLE TO SUCH LENDER UNDER THIS
AGREEMENT, AND TO ASSUME ALL THE OBLIGATIONS OF SUCH LENDER HEREUNDER (EXCEPT
FOR SUCH RIGHTS AS SURVIVE REPAYMENT OF THE LOANS), AND, UPON SUCH PURCHASE,
SUCH LENDER SHALL NO LONGER BE A PARTY HERETO OR HAVE ANY RIGHTS HEREUNDER
(EXCEPT THOSE RELATED TO ANY BID LOANS OF SUCH LENDER WHICH REMAIN OUTSTANDING
AND THOSE THAT SURVIVE FULL PAYMENT HEREUNDER) AND SHALL BE RELIEVED FROM ALL
OBLIGATIONS TO THE BORROWER HEREUNDER, AND THE REPLACEMENT LENDER SHALL SUCCEED
TO THE RIGHTS AND OBLIGATIONS OF SUCH LENDER HEREUNDER.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and
warrants to the Administrative Agent, each Issuing Bank and each Lender that:
SECTION 4.01.
CORPORATE
EXISTENCE; COMPLIANCE WITH LAW.
THE BORROWER AND EACH OF ITS SUBSIDIARIES:
(A)
IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS INCORPORATION;
(B)
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 WHERE THE FAILURE TO SO QUALIFY HAS
NO REASONABLE LIKELIHOOD OF HAVING A MATERIAL ADVERSE EFFECT;
91
(C)
HAS ALL REQUISITE
CORPORATE POWER AND AUTHORITY TO OWN, PLEDGE, MORTGAGE, HOLD UNDER LEASE AND
OPERATE ITS PROPERTIES, AND TO CONDUCT ITS BUSINESS AS NOW OR CURRENTLY PROPOSED
TO BE CONDUCTED;
(D)
IS IN COMPLIANCE WITH
ITS CERTIFICATE OF INCORPORATION AND BY‐LAWS; AND
(E)
IS IN COMPLIANCE WITH
ALL OTHER REQUIREMENTS OF LAW EXCEPT SUCH NON‐COMPLIANCE AS HAS NO REASONABLE
LIKELIHOOD OF HAVING A MATERIAL ADVERSE EFFECT.
SECTION 4.02.
CORPORATE
AUTHORIZATION; NO CONTRAVENTION; GOVERNMENTAL AUTHORIZATION.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE BORROWER OF THE LOAN DOCUMENTS, THE BORROWING OF
THE LOANS AND THE TRANSACTIONS:
(A)
ARE WITHIN THE
CORPORATE POWERS OF THE BORROWER;
(B)
HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE ACTION, INCLUDING THE CONSENT OF
SHAREHOLDERS WHERE REQUIRED;
(C)
DO NOT AND WILL NOT:
(I) CONTRAVENE THE
CERTIFICATE OF INCORPORATION OR BY‐LAWS OF THE BORROWER;
(II) VIOLATE ANY
OTHER REQUIREMENT OF LAW (INCLUDING THE SECURITIES EXCHANGE ACT OF 1934,
REGULATIONS T, U AND X OF THE FEDERAL RESERVE BOARD OR ANY
ORDER OR DECREE OF ANY COURT OR OTHER
GOVERNMENTAL AUTHORITY);
(III) CONFLICT WITH
OR RESULT IN THE BREACH OF, OR CONSTITUTE A DEFAULT UNDER, ANY CONTRACTUAL
OBLIGATION BINDING ON OR AFFECTING THE BORROWER OR ANY OF
ITS PROPERTIES, OTHER THAN (IN THE CASE OF ANY
CONTRACTUAL OBLIGATION OTHER THAN ANY INDENTURE) ANY SUCH
BREACH OR DEFAULT THAT HAS NO REASONABLE
LIKELIHOOD OF HAVING A MATERIAL ADVERSE EFFECT, OR ANY
ORDER, INJUNCTION, WRIT