ANY DATE (INCLUDING THE ISSUANCE OF ANY DOCUMENTARY OR STAND-BY
LETTER OF CREDIT) IS SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS
PRECEDENT:
(A)
THE BORROWER SHALL HAVE EXECUTED AND DELIVERED, OR CAUSE TO HAVE
BEEN EXECUTED AND DELIVERED, TO THE BANK THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTATION REFERRED TO IN SECTION 9 AND, IF APPLICABLE, SECTION 12(M) HEREOF;
(B)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE CHANGE IN THE FINANCIAL
CONDITION OF THE BORROWER, INDIVIDUALLY, OR THE GUARANTORS, TAKEN AS A WHOLE;
(C)
THERE SHALL BE NO MATERIAL ADVERSE LITIGATION, EITHER PENDING OR
THREATENED, AGAINST THE BORROWER OR ANY GUARANTOR THAT COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE BORROWER, INDIVIDUALLY, OR THE
GUARANTORS, TAKEN AS A WHOLE;
5
(D)
THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND IN THE
OTHER LOAN DOCUMENTS (AS HEREINAFTER DEFINED) SHALL BE TRUE AND CORRECT ON AND
AS OF SUCH DATE; AND
(E)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS.
11.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER AND EACH OF THE
GUARANTORS HEREBY JOINTLY AND SEVERALLY REPRESENT, WARRANT AND COVENANT THAT:
(A)
THE BORROWER AND EACH OF THE GUARANTORS IS A LIMITED PARTNERSHIP,
CORPORATION, LIMITED LIABILITY COMPANY OR BUSINESS TRUST, AS THE CASE MAY BE,
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
STATE, OF ITS ORGANIZATION AND IS DULY LICENSED, QUALIFIED TO DO BUSINESS AND IN
GOOD STANDING IN EACH JURISDICTION IN WHICH THE OWNERSHIP OF ITS PROPERTY OR THE
CONDUCT OF ITS BUSINESS REQUIRES SUCH LICENSING AND QUALIFICATION AND WHERE THE
FAILURE TO BE SO LICENSED OR QUALIFIED WOULD HAVE A MATERIAL ADVERSE EFFECT UPON
(I) ITS BUSINESS, OPERATIONS, PROPERTIES, ASSETS OR CONDITION (FINANCIAL OR
OTHERWISE), OR (II) ITS ABILITY TO PERFORM, OR OF THE BANK TO ENFORCE, ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS TO WHICH IT IS A PARTY.
BORROWER AND EACH
OF THE GUARANTORS HAS ALL POWERS AND ALL PERMITS CONSENTS AND AUTHORIZATIONS
NECESSARY TO OWN AND OPERATE
PROPERTIES AND TO CARRY ON ITS BUSINESS AS
PRESENTLY CONDUCTED.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
AND THE GUARANTY AGREEMENT BY THE GUARANTORS AND THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY THE BORROWER, THE BORROWINGS HEREUNDER AND THE
EXECUTION AND DELIVERY OF THE REVOLVING NOTE, THE LETTER OF CREDIT APPLICATIONS,
THE GUARANTY AGREEMENT, THE STOCK PLEDGE AGREEMENT, AND THE SEVERAL AGREEMENTS
AND INSTRUMENTS CONTEMPLATED THEREBY, (I) HAVE BEEN DULY AUTHORIZED BY PROPER
CORPORATE, PARTNERSHIP OR TRUST PROCEEDINGS, AS APPROPRIATE, AND (II) WILL NOT
CONTRAVENE, OR CONSTITUTE A DEFAULT UNDER, ANY PROVISION OF APPLICABLE LAW OR
REGULATION OR OF THE AGREEMENT OF LIMITED PARTNERSHIP, ARTICLES OF
INCORPORATION, BY-LAWS OR TRUST AGREEMENT, AS APPLICABLE, OF THE BORROWER OR ANY
GUARANTOR, OR OF ANY MORTGAGE, INDENTURE, CONTRACT, AGREEMENT OR OTHER
INSTRUMENT, OR ANY JUDGMENT, ORDER OR DECREE, BINDING UPON THE BORROWER OR ANY
GUARANTOR.
TO THE BEST OF BORROWER'S AND GUARANTORS' KNOWLEDGE, NO CONSENT OR
AUTHORIZATION OF,