EXPENSES OF THE BANK INCURRED IN THE
DOCUMENTATION, NEGOTIATION, MODIFICATION, ENFORCEMENT, COLLECTION AND OTHERWISE
IN CONNECTION WITH ANY OF THE FOREGOING, INCLUDING ATTORNEYS' FEES AND EXPENSES
(HEREINAFTER REFERRED TO COLLECTIVELY AS THE "OBLIGATIONS").
UNLESS EXPRESSLY
PROVIDED TO THE CONTRARY IN DOCUMENTATION FOR ANY OTHER LOAN OR LOANS, IT IS THE
EXPRESS INTENT OF THE BANK AND THE BORROWER THAT ALL OBLIGATIONS INCLUDING THOSE
INCLUDED IN THE LOAN BE CROSS-COLLATERALIZED AND CROSS-DEFAULTED, SUCH THAT
COLLATERAL SECURING ANY OF THE OBLIGATIONS SHALL SECURE REPAYMENT OF ALL
OBLIGATIONS AND A DEFAULT UNDER ANY OBLIGATION SHALL BE A DEFAULT UNDER ALL
OBLIGATIONS.
This Agreement, the Note, the Security Documents and all other agreements and
documents executed and/or delivered pursuant hereto, as each may be amended,
modified, extended or renewed from time to time, are collectively referred to as
the "Loan Documents."
Capitalized terms not defined herein shall have the
meanings ascribed to them in the Loan Documents.
3.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER HEREBY MAKES THE
FOLLOWING REPRESENTATIONS AND WARRANTIES, WHICH SHALL BE CONTINUING IN NATURE
AND REMAIN IN FULL FORCE AND EFFECT UNTIL THE OBLIGATIONS ARE PAID IN FULL, AND
WHICH SHALL BE TRUE AND CORRECT EXCEPT AS OTHERWISE SET FORTH ON THE ADDENDUM
ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE (THE "ADDENDUM"):
3.1.
EXISTENCE, POWER AND AUTHORITY.
EACH OF THE BORROWER AND EACH
SUBSIDIARY (AS HEREINAFTER DEFINED) (INDIVIDUALLY, EACH A "LOAN PARTY", AND
COLLECTIVELY, THE "LOAN PARTIES") IS DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE STATE OF ITS INCORPORATION OR ORGANIZATION
AND HAS THE POWER AND AUTHORITY TO OWN AND OPERATE ITS ASSETS AND TO CONDUCT ITS
BUSINESS AS NOW OR PROPOSED TO BE CARRIED ON, AND IS DULY QUALIFIED, LICENSED
AND IN GOOD STANDING TO DO BUSINESS IN ALL JURISDICTIONS WHERE ITS OWNERSHIP OF
PROPERTY OR THE NATURE OF ITS BUSINESS REQUIRES SUCH QUALIFICATION OR
LICENSING.
EACH OF THE LOAN PARTIES IS DULY AUTHORIZED TO EXECUTE AND DELIVER
THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, ALL NECESSARY ACTION TO AUTHORIZE THE
EXECUTION AND DELIVERY OF THE LOAN DOCUMENTS HAS BEEN PROPERLY TAKEN, AND THE
BORROWER IS AND WILL CONTINUE TO BE DULY AUTHORIZED TO BORROW UNDER THIS
AGREEMENT AND TO PERFORM ALL OF THE OTHER TERMS AND PROVISIONS OF THE LOAN
DOCUMENTS.
3.2.
FINANCIAL STATEMENTS.
THE FINANCIAL STATEMENT CONTAINED IN
BORROWER'S (I) FORM 10-K FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
"SEC") FOR THE TWELVE MONTH PERIOD ENDED DECEMBER 31, 2007 (THE "FORM 10-K");
AND (II) FORM 10-Q FILED WITH THE SEC FOR THE SIX-MONTH PERIOD ENDED JUNE 30,
2008 (THE "FORM 10-Q," AND COLLECTIVELY WITH THE FORM 10-K, THE "HISTORICAL
FINANCIAL STATEMENTS") ARE TRUE, COMPLETE AND ACCURATE IN ALL MATERIAL RESPECTS
AND FAIRLY PRESENT THE FINANCIAL CONDITION, ASSETS AND LIABILITIES, WHETHER
ACCRUED, ABSOLUTE, CONTINGENT OR OTHERWISE AND THE RESULTS OF THE BORROWER'S
OPERATIONS FOR THE PERIOD SPECIFIED THEREIN.
THE HISTORICAL FINANCIAL
STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES ("GAAP") CONSISTENTLY APPLIED FROM PERIOD TO PERIOD, SUBJECT IN