LENDER THE FEES SET FORTH IN THE FEE LETTER DATED THE DATE HEREOF.
3.
EVIDENCE OF PROPER COMPLETION OF
ROCKLIN, CA SITE.
UPON COMPLETION OF THE IMPROVEMENTS CURRENTLY UNDER
CONSTRUCTION AT THE ROCKLIN, CALIFORNIA PROPERTY OWNED BY UNFI, BORROWERS SHALL
DELIVER TO LENDER EVIDENCE OF THE COMPLETION OF SUCH IMPROVEMENTS IN COMPLIANCE
WITH LAW, WHICH EVIDENCE MUST BE ACCEPTABLE TO LENDER IN ITS SOLE DISCRETION.
4.
REPRESENTATIONS AND WARRANTIES.
THE
BORROWERS HEREBY REPRESENT AND WARRANT AS FOLLOWS:
A.
POWER, AUTHORITY, ETC.
THE BORROWERS
HAVE THE POWER AND AUTHORITY FOR THE MAKING AND PERFORMING OF THIS FIFTH
AMENDMENT.
THIS FIFTH AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY OR ON
BEHALF OF THE BORROWERS PURSUANT TO AUTHORITY LEGALLY ADEQUATE THEREFOR, AND
THIS FIFTH AMENDMENT TO IS IN FULL FORCE AND EFFECT AND IS A LEGAL, VALID AND
BINDING OBLIGATION OF THE BORROWERS ENFORCEABLE IN ACCORDANCE WITH ITS TERMS
SUBJECT TO APPLICABLE BANKRUPTCY, REORGANIZATION, INSOLVENCY, MORATORIUM OR
SIMILAR LAWS AND EQUITABLE PRINCIPLES AFFECTING THE ENFORCEMENT OF CREDITORS'
RIGHTS GENERALLY.
B.
INCORPORATION OF REPRESENTATIONS AND
WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWERS CONTAINED IN
THE LOAN AGREEMENT, EXCEPT FOR ANY CHANGES RESULTING ONLY FROM THE PASSAGE OF
TIME AND WHICH DO NOT OTHERWISE CONSTITUTE A DEFAULT OR EVENT OF DEFAULT
HEREUNDER, ARE TRUE AND CORRECT ON AND AS OF THE DATE HEREOF AS THOUGH MADE ON
AND AS OF
4
THE DATE HEREOF AND SUCH REPRESENTATIONS AND WARRANTIES ARE HERETO INCORPORATED
IN THIS FIFTH AMENDMENT TO AS THOUGH FULLY SET FORTH HEREIN.
5.
CONDITIONS PRECEDENT.
NOTWITHSTANDING
ANY OF THE PROVISIONS OF THE LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS,
AND WITHOUT AFFECTING IN ANY MANNER THE RIGHTS OF LENDER UNDER ANY OTHER
SECTIONS OF THE LOAN AGREEMENT OR THIS FIFTH AMENDMENT, LENDER SHALL NOT BE
REQUIRED TO MAKE THE TERM LOAN UNDER THIS FIFTH AMENDMENT UNLESS AND UNTIL EACH
OF THE FOLLOWING CONDITIONS HAS BEEN AND CONTINUES TO BE SATISFIED (THE DATE
WHEN SUCH CONDITIONS ARE SATISFIED SHALL BE THE "FIFTH AMENDMENT CLOSING DATE").
A.
DOCUMENTATION.
LENDER SHALL HAVE
RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO LENDER, A DULY EXECUTED COPY OF
THIS FIFTH AMENDMENT, THE SECOND AMENDED AND RESTATED TERM PROMISSORY NOTE IN
SUBSTANTIALLY THE FORM OF EXHIBIT A HERETO, MORTGAGES WITH RESPECT TO REAL
PROPERTY NOT PREVIOUSLY SUBJECT TO MORTGAGES, AMENDMENTS TO MORTGAGES,
COLLATERAL ASSIGNMENTS WITH RESPECT TO REAL PROPERTY NOT PREVIOUSLY SUBJECT TO
MORTGAGES, AMENDMENTS OF COLLATERAL ASSIGNMENTS AND SUCH ADDITIONAL DOCUMENTS,
INSTRUCTIONS AND CERTIFICATES AS LENDER SHALL REQUIRE IN CONNECTION THEREWITH,
ALL IN FORM AND SUBSTANCE SATISFACTORY TO LENDER AND ITS COUNSEL.
B.
NO DEFAULT.
NO DEFAULT OR EVENT OF
DEFAULT SHALL EXIST.
C.
CORPORATE DOCUMENTS.
ALL REQUISITE
CORPORATE ACTION AND PROCEEDINGS OF THE BORROWERS IN CONNECTION WITH THIS FIFTH
AMENDMENT AND ALL DOCUMENTATION AND CERTIFICATES REQUIRED BY LENDER AND/OR ITS
COUNSEL IN CONNECTION THEREWITH SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO
LENDER AND ITS COUNSEL;
D.
OPINIONS OF COUNSEL.
THE RECEIPT BY
LENDER OF AN OPINION, DATED THE FIFTH AMENDMENT CLOSING DATE, OF