AND CORRECT IN ALL MATERIAL RESPECTS.
THERE HAS BEEN NO MATERIAL
ADVERSE CHANGE IN ANY CONDITION, FACT, CIRCUMSTANCE OR EVENT THAT WOULD MAKE ANY
SUCH INFORMATION INACCURATE, INCOMPLETE OR OTHERWISE MISLEADING IN ANY MATERIAL
RESPECT OR THAT OTHERWISE MATERIALLY AND ADVERSELY AFFECTS OR MIGHT MATERIALLY
AND ADVERSELY AFFECT THE PROPERTIES OR THE BUSINESS OPERATIONS OR THE FINANCIAL
CONDITION OF BORROWER.
BORROWER HAS DISCLOSED TO LENDER ALL MATERIAL FACTS AND
HAS NOT FAILED TO DISCLOSE ANY MATERIAL FACT THAT COULD CAUSE ANY REPRESENTATION
OR WARRANTY MADE HEREIN TO BE MATERIALLY MISLEADING.
4.1.35
INVESTMENT COMPANY ACT. BORROWER IS NOT (A) AN "INVESTMENT COMPANY"
OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY," WITHIN THE MEANING OF THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED; (B) A "HOLDING COMPANY" OR A
"SUBSIDIARY COMPANY" OF A "HOLDING COMPANY" OR AN "AFFILIATE" OF EITHER A
"HOLDING COMPANY" OR A "SUBSIDIARY COMPANY" WITHIN THE MEANING OF THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED; OR (C) SUBJECT TO ANY OTHER
FEDERAL OR STATE LAW OR REGULATION WHICH PURPORTS TO RESTRICT OR REGULATE ITS
ABILITY TO BORROW MONEY.
4.1.36
EMBARGOED PERSON.
AS OF THE DATE HEREOF AND AT ALL TIMES THROUGHOUT
THE TERM OF THE LOAN, INCLUDING AFTER GIVING EFFECT TO ANY TRANSFERS PERMITTED
PURSUANT TO THE LOAN DOCUMENTS, (A) NONE OF THE FUNDS OR OTHER ASSETS OF
BORROWER, GUARANTOR OR INDEMNITOR CONSTITUTE PROPERTY OF, OR ARE BENEFICIALLY
OWNED, DIRECTLY OR INDIRECTLY, BY ANY EMBARGOED PERSON; (B) NO EMBARGOED PERSON
HAS ANY INTEREST OF ANY NATURE WHATSOEVER IN BORROWER, GUARANTOR OR INDEMNITOR,
AS APPLICABLE, WITH THE RESULT THAT THE INVESTMENT IN BORROWER, GUARANTOR OR
INDEMNITOR, (WHETHER DIRECTLY OR INDIRECTLY), IS PROHIBITED BY LAW OR THE LOAN
IS IN VIOLATION OF LAW; AND (C) NONE OF THE FUNDS OF BORROWER, GUARANTOR OR
INDEMNITOR, HAVE BEEN DERIVED FROM ANY UNLAWFUL ACTIVITY WITH THE RESULT THAT
THE INVESTMENT IN BORROWER, GUARANTOR OR INDEMNITOR (WHETHER DIRECTLY OR
INDIRECTLY), IS PROHIBITED BY LAW OR THE LOAN IS IN VIOLATION OF LAW.
4.1.37
PRINCIPAL PLACE OF BUSINESS AND ORGANIZATION.
BORROWER SHALL NOT
CHANGE ITS PRINCIPAL PLACE OF BUSINESS WITHOUT FIRST GIVING LENDER THIRTY (30)
DAYS PRIOR WRITTEN NOTICE.
BORROWER SHALL NOT CHANGE THE PLACE OF ITS
ORGANIZATION AS SET FORTH IN THE INTRODUCTORY PARAGRAPH OF THIS AGREEMENT
WITHOUT THE CONSENT OF LENDER, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD,
CONDITIONED OR DELAYED.
UPON LENDER'S REQUEST, BORROWER SHALL EXECUTE AND
DELIVER ADDITIONAL FINANCING STATEMENTS, SECURITY AGREEMENTS AND OTHER
INSTRUMENTS WHICH MAY BE NECESSARY TO EFFECTIVELY EVIDENCE OR PERFECT LENDER'S
SECURITY INTEREST IN THE PROPERTIES AS A RESULT OF SUCH CHANGE OF PRINCIPAL
PLACE OF BUSINESS OR PLACE OF ORGANIZATION.
4.1.38
CASH MANAGEMENT ACCOUNT. BORROWER HEREBY REPRESENTS AND WARRANTS TO
LENDER THAT:
(A)
THIS AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, CREATE A
VALID AND CONTINUING SECURITY INTEREST (AS DEFINED IN THE UNIFORM COMMERCIAL
CODE OF THE STATE OF NEW YORK) IN THE CLEARING ACCOUNT AND CASH MANAGEMENT
ACCOUNT IN FAVOR OF LENDER, WHICH SECURITY INTEREST IS PRIOR TO ALL OTHER LIENS,
OTHER THAN