WILLFUL MISCONDUCT), WHETHER ARISING FROM:
(I) ANY DEFECT IN ANY BUILDING, GRADING, LANDSCAPING OR OTHER ONSITE OR OFFSITE
IMPROVEMENT; (II) ANY ACT OR OMISSION OF BORROWER OR ANY OF BORROWER'S AGENTS,
EMPLOYEES, INDEPENDENT CONTRACTORS, LICENSEES OR INVITEES; OR (III) ANY
MORTGAGED PROPERTY OR ANY FIRE OR OTHER CASUALTY OR HAZARD THEREON; AND
By accepting or approving anything required to be performed or given to Agent
under the Loan Documents, Agent shall not be deemed to have warranted or
represented the sufficiency or legal effect of the same, and no such acceptance
or approval shall constitute a warranty or representation by Agent to anyone.
3.10
Conditions to Each Borrowing.
The obligation of each Lender to make any Loan after the Closing Date is
additionally subject to the satisfaction of the following conditions:
(I)
THE REPRESENTATIONS AND WARRANTIES
CONTAINED HEREIN AND IN THE OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF SUCH LOAN TO THE SAME EXTENT AS
THOUGH MADE ON AND AS OF THAT DATE (SUBJECT TO UPDATE OF SCHEDULES REFERENCED
THEREIN), EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES SPECIFICALLY
RELATE TO AN EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS AND WARRANTIES
SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF SUCH
EARLIER DATE;
(II)
AT THE TIME OF AND IMMEDIATELY AFTER
GIVING EFFECT TO SUCH LOAN, NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING;
(III)
THE TOTAL LOAN EXPOSURE SHALL NOT EXCEED THE
TOTAL LOAN COMMITMENTS; AND
(IV)
FOR EACH BORROWING OF A LOAN, BORROWER SHALL
HAVE DELIVERED A COMPLETED AND SIGNED REQUEST FOR ADVANCE.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in this Section 3.
3.11
Conditions to Disbursements from the Company's
Operating Account.
A.
GENERAL.
THE BORROWER HAS ESTABLISHED,
AND HEREAFTER AGREES TO CONTINUE TO MAINTAIN THE COMPANY'S OPERATING ACCOUNT.
THE BORROWER HEREBY GRANTS A SECURITY INTEREST TO THE AGENT IN THE COMPANY'S
OPERATING ACCOUNT TO SECURE THE OBLIGATIONS.
CONCURRENTLY WITH THE EXECUTION OF
THIS AGREEMENT, THE BORROWER HAS ENTERED INTO CONTROL AGREEMENTS WITH RESPECT TO
THE COMPANY'S OPERATING
55
ACCOUNT WITH THE AGENT AND THE ACCOUNT HOLDER.
IT IS AGREED THAT THE BORROWER
AND ITS SUBSIDIARIES SHALL BE PERMITTED TO MAINTAIN ACCOUNTS FOR PAYROLL, PETTY
CASH AND OTHER PURPOSES IN WHICH IT IS NOT PRACTICAL OR POSSIBLE TO OBTAIN A
CONTROL AGREEMENT; PROVIDED, THAT THE AGGREGATE AMOUNTS ON DEPOSIT THEREIN SHALL
NOT EXCEED $500,000 AT ANY TIME.
B.
INVESTMENTS, WITHDRAWALS AND DEPOSITS.
(I)
THE BORROWER MAY DIRECT THE ACCOUNT
HOLDER REGARDING INVESTMENT OF FUNDS CONTAINED IN THE COMPANY'S OPERATING
ACCOUNT IN CASH EQUIVALENTS (TO THE EXTENT AVAILABLE IN SUCH ACCOUNT), PROVIDED,
HOWEVER, THAT SUCH DIRECTION MAY BE REQUIRED TO BE ACCOMPLISHED THROUGH
DIRECTION TO THE AGENT, WHO WILL SUBSEQUENTLY DIRECT THE ACCOUNT HOLDER
REGARDING THE SAME.
AT ANY TIME PRIOR TO THE OCCURRENCE AND CONTINUANCE OF AN
EVENT OF