BY
MAKING A PREPAYMENT IN RESPECT OF THE EXISTING LOANS DIRECTLY TO THE LENDERS
UNDER THE EXISTING LOANS (THE "BANK LENDERS"); PROVIDED, THAT PREPAYMENTS ARE
THEN PERMITTED PURSUANT TO THE TERMS OF THE EXISTING LOANS, AND SUBJECT TO THE
CONDITION THAT CONCURRENTLY WITH ANY SUCH PREPAYMENT TO THE BANK LENDERS,
BORROWERS SHALL PAY TO THE BANK LENDERS THE FULL AMOUNT OF ANY PENALTIES OR
OTHER CHARGES PAYABLE IN CONNECTION WITH SUCH PREPAYMENT (IT BEING UNDERSTOOD
THAT THE AMOUNT OF ANY SUCH PENALTIES OR CHARGES SHALL BE EXCLUDED FROM THE
CALCULATION OF THE AMOUNT TO BE APPLIED IN PREPAYMENT OF THE PRINCIPAL OF AND
INTEREST ON THE LOAN).
6.
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby jointly and severally represent and warrant to Lender as
follows:
(A)
ORGANIZATION; POWER AND AUTHORITY.
EACH BORROWER IS A CORPORATION
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE
JURISDICTION OF ITS ORGANIZATION AND HAS ALL REQUISITE CORPORATE POWER AND
LAWFUL AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO CARRY ON ITS
BUSINESS AS NOW BEING AND HERETOFORE CONDUCTED.
EACH BORROWER IS DULY QUALIFIED
OR OTHERWISE AUTHORIZED TO TRANSACT BUSINESS AND IS IN GOOD STANDING UNDER THE
LAWS OF ALL OTHER JURISDICTIONS THAT REQUIRE SUCH QUALIFICATION OR
AUTHORIZATION, EXCEPT WHERE THE FAILURE TO SO QUALIFY OR BE AUTHORIZED COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(B)
AUTHORIZATION, ETC.
SUCH BORROWER HAS ALL NECESSARY CORPORATE
POWER AND AUTHORITY REQUIRED TO ENTER INTO, EXECUTE AND DELIVER THIS AGREEMENT
AND TO PERFORM FULLY SUCH BORROWER'S OBLIGATIONS HEREUNDER.
THIS AGREEMENT HAS
BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART OF EACH
BORROWER, AND CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF SUCH BORROWER
ENFORCEABLE AGAINST SUCH BORROWER IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY.
(C)
COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC.
THE EXECUTION,
DELIVERY AND PERFORMANCE BY EACH BORROWER OF THIS AGREEMENT WILL NOT (I) VIOLATE
ANY PROVISION OF THE CERTIFICATE OR ARTICLES OF INCORPORATION OR OTHER MATERIAL
ORGANIZATIONAL INSTRUMENTS OF SUCH BORROWER, (II) REQUIRE SUCH BORROWER TO
OBTAIN ANY CONSENT, APPROVAL, AUTHORIZATION OR ACTION OF, OR MAKE ANY FILING
WITH OR GIVE ANY NOTICE TO, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON,
OTHER THAN CONSENTS, APPROVALS, AUTHORIZATIONS OR ACTIONS ALREADY OBTAINED OR
TAKEN (III) VIOLATE, CONFLICT WITH OR RESULT IN THE BREACH OF ANY OF THE TERMS
AND CONDITIONS OF, RESULT IN A MATERIAL MODIFICATION OF THE EFFECT OF, OR
OTHERWISE CAUSE THE TERMINATION OR GIVE ANY CONTRACTING PARTY THE RIGHT TO
TERMINATE, OR CONSTITUTE (OR WITH NOTICE OR LAPSE OF TIME OR BOTH CONSTITUTE) A
DEFAULT
4
under, any material contract, agreement, indenture, note, bond, loan,
instrument, lease, conditional sale contract, mortgage, license, franchise,
commitment or other binding arrangement to which such Borrower is a party or by
or to which such Borrower or any of its properties is or may be