AND, IMMEDIATELY FOLLOWING THE MAKING OF THE LOAN WILL NOT, CONSTITUTE
UNREASONABLY SMALL CAPITAL TO CARRY OUT ITS BUSINESS AS CONDUCTED OR AS PROPOSED
TO BE CONDUCTED.
BORROWERS DO NOT INTEND TO, AND DO NOT BELIEVE THAT THEY WILL,
INCUR INDEBTEDNESS AND LIABILITIES (INCLUDING CONTINGENT LIABILITIES AND OTHER
COMMITMENTS) BEYOND THEIR RESPECTIVE ABILITIES TO PAY SUCH INDEBTEDNESS AND
LIABILITIES AS THEY MATURE (TAKING INTO ACCOUNT THE TIMING AND AMOUNTS OF CASH
TO BE RECEIVED BY EACH BORROWER AND THE AMOUNTS TO BE PAYABLE ON OR IN RESPECT
OF OBLIGATIONS OF EACH BORROWER).
NO PETITION IN BANKRUPTCY HAS BEEN FILED
AGAINST ANY BORROWER, HRHI OR ANY GUARANTOR, AND NONE OF ANY BORROWER, HRHI NOR
ANY GUARANTOR HAS EVER MADE AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR TAKEN
ADVANTAGE OF ANY INSOLVENCY ACT FOR THE BENEFIT OF DEBTORS.
NONE OF ANY
BORROWER, HRHI NOR ANY GUARANTOR ARE CONTEMPLATING EITHER THE FILING OF A
PETITION BY IT UNDER ANY STATE OR FEDERAL BANKRUPTCY OR INSOLVENCY LAWS OR THE
LIQUIDATION OF ALL OR A MAJOR PORTION OF ITS ASSETS OR PROPERTIES, AND NO
BORROWER HAS ANY ACTUAL KNOWLEDGE OF ANY PERSON CONTEMPLATING THE FILING OF ANY
SUCH PETITION AGAINST IT, HRHI OR ANY GUARANTOR.
4.1.8
FULL AND ACCURATE DISCLOSURE.
TO SUCH BORROWER'S
ACTUAL KNOWLEDGE, NO STATEMENT OF FACT MADE BY ANY BORROWER IN THIS AGREEMENT OR
IN ANY OF THE OTHER LOAN DOCUMENTS CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL
FACT OR OMITS TO STATE ANY MATERIAL FACT NECESSARY TO MAKE STATEMENTS CONTAINED
HEREIN OR THEREIN NOT MISLEADING.
THERE IS NO FACT OR CIRCUMSTANCE PRESENTLY
KNOWN TO SUCH BORROWER WHICH HAS NOT BEEN DISCLOSED TO LENDER AND WHICH WILL
HAVE A MATERIAL ADVERSE EFFECT ON (A) THE USE AND OPERATION OF ANY OF THE
PROPERTIES OR THE IP, (B) THE ENFORCEABILITY OR VALIDITY OF ANY LOAN DOCUMENT,
THE PERFECTION OR PRIORITY OF ANY LIEN CREATED UNDER ANY LOAN DOCUMENT OR THE
REMEDIES OF LENDER UNDER ANY LOAN DOCUMENT, OR (C) THE ABILITY OF ANY BORROWER,
HRHI OR ANY GUARANTOR TO PERFORM, IN ALL MATERIAL RESPECTS, ITS OBLIGATIONS
UNDER EACH OF THE LOAN DOCUMENTS.
4.1.9
NO PLAN ASSETS.
AS OF THE DATE HEREOF AND THROUGHOUT
THE TERM OF THE LOAN (A) NO BORROWER IS NOR WILL ANY BORROWER BE AN "EMPLOYEE
BENEFIT PLAN," AS DEFINED IN SECTION 3(3) OF ERISA, SUBJECT TO TITLE I OF ERISA,
(B) NONE OF THE ASSETS OF ANY BORROWER CONSTITUTES OR WILL CONSTITUTE "PLAN
ASSETS" OF ONE OR MORE SUCH PLANS WITHIN THE MEANING OF 29 C.F.R. SECTION
2510.3-101, (C) NO BORROWER IS NOR WILL ANY BORROWER BE A "GOVERNMENTAL PLAN"
WITHIN THE MEANING OF SECTION 3(32) OF ERISA, AND (D) NONE OF THE ASSETS OF ANY
BORROWER CONSTITUTE "PLAN ASSETS" OF A GOVERNMENTAL PLAN WITHIN THE MEANING OF
29 C.F.R. SECTION 2510.3-101
146
FOR PURPOSES OF ANY STATE LAW PROVISIONS REGULATING INVESTMENTS OF, OR FIDUCIARY
OBLIGATIONS WITH RESPECT TO, GOVERNMENTAL PLANS.
4.1.10
COMPLIANCE.
EXCEPT AS SET FORTH IN THE APPLICABLE ZONING
REPORT, SUCH BORROWERS AND, TO THE