ON
THE BUSINESS DAY IMMEDIATELY PRECEDING THE DAY ON WHICH FINAL JUDGMENT IS GIVEN.
(B)
THE OBLIGATIONS OF THE BORROWERS IN RESPECT OF ANY SUM DUE TO ANY
PARTY HERETO OR ANY HOLDER OF THE OBLIGATIONS OWING HEREUNDER (THE "APPLICABLE
CREDITOR") SHALL, NOTWITHSTANDING ANY JUDGMENT IN A CURRENCY (THE "JUDGMENT
CURRENCY") OTHER THAN THE CURRENCY IN WHICH SUCH SUM IS STATED TO BE DUE
HEREUNDER (THE "AGREEMENT CURRENCY"), BE DISCHARGED ONLY TO THE EXTENT THAT, ON
THE BUSINESS DAY FOLLOWING RECEIPT BY THE APPLICABLE CREDITOR OF ANY SUM
ADJUDGED TO BE SO DUE IN THE JUDGMENT CURRENCY, THE APPLICABLE CREDITOR MAY IN
ACCORDANCE WITH NORMAL BANKING PROCEDURES IN THE RELEVANT JURISDICTION PURCHASE
THE AGREEMENT CURRENCY WITH THE JUDGMENT CURRENCY; IF THE AMOUNT OF THE
AGREEMENT CURRENCY SO PURCHASED IS LESS THAN THE SUM ORIGINALLY DUE TO THE
APPLICABLE CREDITOR IN THE AGREEMENT CURRENCY, THE BORROWERS AS A SEPARATE
OBLIGATION AND NOTWITHSTANDING ANY SUCH JUDGMENT, AGREES TO INDEMNIFY THE
APPLICABLE CREDITOR AGAINST SUCH LOSS.
THE OBLIGATIONS OF THE BORROWERS
CONTAINED IN THIS SUBSECTION 2.24 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT AND THE PAYMENT OF ALL OTHER AMOUNTS OWING HEREUNDER.
2.25
FOREIGN CURRENCY EXCHANGE RATE.
(A)
NO LATER THAN 1:00 P.M., NEW YORK
CITY TIME, ON EACH CALCULATION DATE WITH RESPECT TO A FOREIGN CURRENCY, THE
ADMINISTRATIVE
43
AGENT (OR THE FOREIGN CURRENCY AGENT) SHALL DETERMINE THE EXCHANGE RATE AS OF
SUCH CALCULATION DATE WITH RESPECT TO SUCH FOREIGN CURRENCY (IT BEING
ACKNOWLEDGED AND AGREED THAT THE ADMINISTRATIVE AGENT OR THE FOREIGN CURRENCY
AGENT, AS THE CASE MAY BE, SHALL USE SUCH EXCHANGE RATE FOR THE PURPOSES OF
DETERMINING COMPLIANCE WITH SUBSECTION 2.1 WITH RESPECT TO SUCH BORROWING
REQUEST).
THE EXCHANGE RATES SO DETERMINED SHALL BECOME EFFECTIVE ON THE
RELEVANT CALCULATION DATE, SHALL REMAIN EFFECTIVE UNTIL THE NEXT SUCCEEDING
CALCULATION DATE AND SHALL FOR ALL PURPOSES OF THIS AGREEMENT (OTHER THAN
SUBSECTION 2.13(E) AND SUBSECTION 2.24(A)) BE THE EXCHANGE RATES EMPLOYED IN
CONVERTING ANY AMOUNTS BETWEEN DOLLARS AND FOREIGN CURRENCIES.
(B)
NO LATER THAN 5:00 P.M., NEW YORK CITY TIME, ON EACH CALCULATION
DATE, THE ADMINISTRATIVE AGENT (OR THE FOREIGN CURRENCY AGENT) SHALL DETERMINE
THE AGGREGATE AMOUNT OF THE DOLLAR EQUIVALENTS OF THE PRINCIPAL AMOUNTS OF THE
FOREIGN CURRENCY LOANS THEN OUTSTANDING (AFTER GIVING EFFECT TO ANY FOREIGN
CURRENCY LOANS TO BE MADE OR REPAID ON SUCH DATE).
(C)
THE ADMINISTRATIVE AGENT SHALL PROMPTLY NOTIFY THE BORROWERS OF EACH
DETERMINATION OF AN EXCHANGE RATE HEREUNDER.
SECTION 3.
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Administrative Agent and to
each Bank that:
3.1 Financial Condition.
The consolidated balance sheet of such Borrower and
its consolidated Subsidiaries as at October 31, 2009 and the related
consolidated statements of income and of cash flow for the fiscal year then
ended (including the related schedules and notes) reported on by Deloitte &
Touche LLP, copies of which have heretofore been furnished to each Bank, fairly
present the consolidated financial condition of such Borrower and its
consolidated Subsidiaries as at such