AFTER THE DATE OF THIS
AGREEMENT THAT ANY CHANGE IN APPLICABLE LAWS, RULES OR REGULATIONS REGARDING
CAPITAL ADEQUACY, OR ANY CHANGE IN THE INTERPRETATION OR ADMINISTRATION THEREOF
BY ANY APPROPRIATE GOVERNMENTAL AGENCY, OR COMPLIANCE WITH ANY REQUEST OR
DIRECTIVE TO BANK REGARDING CAPITAL ADEQUACY (WHETHER OR NOT HAVING THE FORCE OF
LAW) OF ANY SUCH AGENCY, INCREASES THE CAPITAL REQUIRED TO BE MAINTAINED WITH
RESPECT TO THE LOAN OR NOTE AND THEREFORE REDUCES THE RATE OF RETURN ON BANK'S
CAPITAL BELOW THE LEVEL BANK COULD HAVE ACHIEVED BUT FOR SUCH CHANGE OR
COMPLIANCE (TAKING INTO CONSIDERATION BANK'S POLICIES WITH RESPECT TO CAPITAL
ADEQUACY), THEN BORROWER WILL PAY TO BANK FROM TIME TO TIME, WITHIN FIFTEEN (15)
DAYS OF BANK'S REQUEST, ANY ADDITIONAL AMOUNT REQUIRED TO COMPENSATE BANK FOR
SUCH REDUCTION.
BANK WILL REQUEST ANY ADDITIONAL AMOUNT BY DELIVERING TO
BORROWER A CERTIFICATE OF BANK SETTING FORTH THE AMOUNT NECESSARY TO COMPENSATE
BANK.
THE CERTIFICATE WILL BE CONCLUSIVE AND BINDING, ABSENT MANIFEST ERROR.
BANK MAY MAKE ANY ASSUMPTIONS, AND MAY USE ANY ALLOCATIONS OF COSTS AND EXPENSES
AND ANY AVERAGING AND ATTRIBUTION METHODS, WHICH BANK IN GOOD FAITH FINDS
REASONABLE.
ARTICLE II.
CONDITIONS PRECEDENT
SECTION 2.01.
ALL LOANS.
BANK IS NOT OBLIGATED TO MAKE ANY LOAN UNLESS:(A)
BANK HAS RECEIVED THE FOLLOWING, DULY EXECUTED AND IN PROPER FORM: (1) A REQUEST
FOR LOAN, SUBSTANTIALLY IN THE FORM OF EXHIBIT A ATTACHED HERETO, NOT LATER THAN
THE PERIOD REQUIRED UNDER THE NOTE BEFORE THE DATE (WHICH SHALL ALSO BE A
BUSINESS DAY) OF THE PROPOSED LOAN; PROVIDED HOWEVER, BANK MAY ACCEPT AND ACT
UPON VERBAL ADVANCE REQUESTS RECEIVED FROM BORROWER'S REPRESENTATIVE REASONABLY
BELIEVED BY BANK TO BE AUTHORIZED TO MAKE SUCH REQUESTS; AND (2) SUCH OTHER
DOCUMENTS AS BANK REASONABLY MAY REQUIRE; (B) NO EVENT OF DEFAULT EXISTS; AND
(C) THE MAKING OF THE LOAN IS NOT PROHIBITED BY, OR SUBJECTS BANK TO ANY PENALTY
OR ONEROUS CONDITION UNDER ANY LEGAL REQUIREMENT.
SECTION 2.02.
FIRST LOAN.
IN ADDITION TO THE MATTERS DESCRIBED IN THE
PRECEDING SECTION, BANK WILL NOT BE OBLIGATED TO MAKE THE FIRST LOAN UNLESS BANK
HAS RECEIVED ALL OF THE DOCUMENTS SPECIFIED ON ANNEX I ATTACHED HERETO IN PROPER
FORM.
2
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
TO INDUCE BANK TO ENTER INTO THIS AGREEMENT AND TO MAKE THE LOANS, BORROWER
REPRESENTS AND WARRANTS AS OF THE EFFECTIVE DATE AND AS OF THE DATE OF EACH
REQUEST FOR A LOAN THAT EACH OF THE FOLLOWING STATEMENTS IS AND SHALL REMAIN
TRUE AND CORRECT THROUGHOUT THE TERM OF THIS AGREEMENT:
SECTION 3.01.
ORGANIZATION AND STATUS.
BORROWER AND EACH SUBSIDIARY OF
BORROWER IS DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION OF ITS ORGANIZATION; HAS ALL POWER AND AUTHORITY TO CONDUCT
ITS BUSINESS AS PRESENTLY CONDUCTED, AND IS DULY QUALIFIED TO DO BUSINESS AND IN
GOOD STANDING IN EACH JURISDICTION IN WHICH THE NATURE OF THE BUSINESS CONDUCTED
BY IT MAKES SUCH QUALIFICATION DESIRABLE.
BORROWER HAS NO SUBSIDIARY OTHER THAN
THOSE LISTED ON ANNEX II,