be so qualified might reasonably be expected to have a Material
Adverse Effect, and KMG-Bernuth has full power and authority to consummate the
transactions contemplated by this Agreement.
8.2
Authority.
The execution, delivery and
performance of all of the Loan Documents have been duly authorized by all
requisite action by each Borrower Party a party thereto.
All of the Loan
Documents have been duly executed and delivered and constitute valid
39
and binding obligations of each Borrower Party a party thereto, enforceable in
accordance with their respective terms (except as may be limited by applicable
Bankruptcy Laws and other Laws affecting the enforceability of creditors' rights
generally and principles of equity), and Bank will be entitled to the benefits
of all of the Loan Documents.
8.3
Name.
Set forth on Schedule 8.3 is a
complete and accurate list of (i) all names under which Borrowers have done
business in the last six years; and (ii) the names of all Persons whose assets
(x) were acquired in the last six years by Borrower outside of Borrower's
Ordinary Course of Business, (y) were included as assets of Borrowers on the
Most Recent Financial Statements with a market value of more than $250,000.00,
and (z) constitute part of the Collateral.
8.4
Material Contracts.
Set forth on Schedule
8.4 is a complete and accurate list of all of the Material Contracts.
8.5
Consents or Approvals.
(A)
EXCEPT FOR APPROVALS, AUTHORIZATIONS ALREADY
OBTAINED AND REMAINING IN EFFECT, AND NOTICES TO AND FILINGS ALREADY GIVEN AND
MADE, NO CONSENT OR APPROVAL OF ANY THIRD PERSON, AND NO AUTHORIZATION, APPROVAL
OR OTHER ACTION BY, AND NO NOTICE TO OR FILING WITH, ANY GOVERNMENTAL AUTHORITY
OR OTHER THIRD PERSON IS REQUIRED WITH RESPECT TO THE OPERATION OF BORROWER'S
BUSINESS (UNLESS THE FAILURE TO OBTAIN OR FILE SUCH APPROVALS, AUTHORIZATIONS,
NOTICES AND FILINGS WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT).
(B)
NO CONSENT OF ANY THIRD PERSON AND NO
AUTHORIZATION, APPROVAL OR OTHER ACTION BY, AND NO NOTICE TO OR FILING WITH, ANY
GOVERNMENTAL AUTHORITY OR OTHER THIRD PERSON THAT IS REQUIRED HAS NOT BEEN
OBTAINED EITHER (I) FOR THE DUE EXECUTION, DELIVERY, RECORDATION, FILING OR
PERFORMANCE BY ANY BORROWER PARTY OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR FOR THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED HEREBY, (II) FOR THE
MORTGAGE, PLEDGE, ASSIGNMENT, OR GRANT BY BORROWER OF BANK'S LIEN, (III) FOR THE
PERFECTION OR MAINTENANCE OF BANK'S LIEN, EXCEPT FOR THE RECORDING OF THE
FINANCING STATEMENTS, OR (IV) FOR THE EXERCISE BY BANK OF ITS RIGHTS OR REMEDIES
PROVIDED FOR IN THIS AGREEMENT OR IN ANY OF THE OTHER LOAN DOCUMENTS (EXCEPT AS
MAY BE REQUIRED BY APPLICABLE LAWS IN CONNECTION WITH THE FORECLOSURE AND
DISPOSITION OF THE COLLATERAL).
ALL APPLICABLE WAITING PERIODS, IF ANY, IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY HAVE EXPIRED WITHOUT ANY
ACTION HAVING BEEN TAKEN BY ANY PERSON RESTRAINING, PREVENTING OR IMPOSING
MATERIALLY ADVERSE CONDITIONS UPON THE RIGHTS OF BORROWER TO ENTER INTO AND
PERFORM ITS OBLIGATIONS