BE SEVERALLY LIABLE FOR ALL PAYMENTS OF THE PRINCIPAL OF AND
INTEREST ON ADVANCES TO SUCH SUBSIDIARY BORROWER, AND ANY OTHER AMOUNTS DUE
HEREUNDER THAT ARE SPECIFICALLY ALLOCABLE TO SUCH SUBSIDIARY BORROWER OR THE
ADVANCES TO SUCH SUBSIDIARY BORROWER.
WITH RESPECT TO ANY AMOUNTS DUE
HEREUNDER, INCLUDING FEES AND COMMISSIONS, THAT ARE NOT SPECIFICALLY ALLOCABLE
TO A PARTICULAR BORROWER, EACH BORROWER SHALL BE LIABLE FOR SUCH AMOUNT PRO RATA
IN THE SAME PROPORTION AS SUCH BORROWER'S OUTSTANDING ADVANCES BEAR TO THE TOTAL
OF THEN-OUTSTANDING ADVANCES TO ALL BORROWERS.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES BY THE
BORROWERS.
EACH OF THE BORROWERS REPRESENTS AND WARRANTS AS FOLLOWS:
(A)
CORPORATE STANDING.
TBC IS A DULY
ORGANIZED CORPORATION EXISTING IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
DELAWARE.
EACH SUBSIDIARY BORROWER IS DULY ORGANIZED, VALIDLY EXISTING AND IN
GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS ORGANIZATION, AND EACH
OF TBC AND EACH SUBSIDIARY BORROWER IS QUALIFIED TO DO BUSINESS IN EVERY
JURISDICTION WHERE SUCH QUALIFICATION IS REQUIRED, EXCEPT WHERE THE FAILURE TO
SO QUALIFY WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE FINANCIAL CONDITION
OF TBC AND THE SUBSIDIARY BORROWERS AS A WHOLE.
(B)
CORPORATE POWERS; GOVERNMENTAL APPROVALS.
THE EXECUTION AND DELIVERY AND THE PERFORMANCE OF THE TERMS OF THIS AGREEMENT
ARE, AND THE EXECUTION AND DELIVERY AND THE PERFORMANCE OF THE TERMS OF ANY
OTHER LOAN DOCUMENTS AND OF EACH GUARANTY WILL BE, WITHIN THE CORPORATE POWERS
OF EACH BORROWER PARTY THERETO, HAVE BEEN OR WILL HAVE BEEN (AS APPROPRIATE)
DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION, HAVE, OR WILL HAVE, RECEIVED
(AS APPROPRIATE) ALL NECESSARY GOVERNMENTAL APPROVAL, IF ANY (WHICH APPROVAL, IF
ANY, REMAINS IN FULL FORCE AND EFFECT), AND DO NOT CONTRAVENE ANY LAW, ANY
PROVISION OF THE CERTIFICATE OF INCORPORATION OR BY-LAWS OF ANY BORROWER PARTY
THERETO OR ANY CONTRACTUAL RESTRICTION BINDING ON ANY BORROWER PARTY THERETO.
35
(C)
ENFORCEABILITY.
THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS, IF ANY, WHEN DULY EXECUTED AND DELIVERED BY EACH BORROWER
PARTY THERETO, WILL CONSTITUTE LEGAL, VALID AND BINDING OBLIGATIONS OF SUCH
BORROWER, ENFORCEABLE AGAINST SUCH BORROWER IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS, AND EACH GUARANTY, WHEN DULY EXECUTED AND DELIVERED BY TBC, WILL
CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF TBC, ENFORCEABLE AGAINST TBC
IN ACCORDANCE WITH ITS TERMS, SUBJECT TO GENERAL EQUITABLE PRINCIPLES AND EXCEPT
AS THE ENFORCEABILITY THEREOF MAY BE LIMITED BY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS OF GENERAL
APPLICATION RELATING TO CREDITORS' RIGHTS.
(D)
NO MATERIAL PENDING OR THREATENED ACTIONS.
IN TBC'S OPINION, THERE ARE NO PENDING OR THREATENED ACTIONS OR PROCEEDINGS
BEFORE ANY COURT OR ADMINISTRATIVE AGENCY THAT ARE REASONABLY LIKELY TO HAVE A
MATERIAL ADVERSE AFFECT ON THE FINANCIAL CONDITION OR OPERATIONS OF THE COMPANY
WHICH IS LIKELY TO MATERIALLY IMPAIR THE ABILITY OF THE COMPANY TO REPAY THE
ADVANCES OR WHICH WOULD AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE ADVANCES.
(E)
CONSOLIDATED STATEMENTS.
THE CONSOLIDATED
STATEMENT OF