OBLIGATIONS TO THE LENDER, OF
EVERY KIND AND DESCRIPTION ARISING UNDER THIS AGREEMENT, DIRECT OR INDIRECT,
ABSOLUTE OR CONTINGENT, DUE OR TO BECOME DUE, NOW EXISTING OR HEREAFTER ARISING,
INCLUDING OBLIGATIONS TO PERFORM ACTS AND REFRAIN FROM TAKING ACTION, AS WELL AS
OBLIGATIONS TO REPAY THE LOANS, SHALL CONSTITUTE THE BORROWER'S "LIABILITIES" TO
THE LENDER, AS THE SAME MAY BE MODIFIED, AMENDED, REPLACED OR EXTENDED FROM TIME
TO TIME, IN ACCORDANCE WITH THE TERMS HEREOF.
2
1.7
NOTES EVIDENCING LOANS.
THE REVOLVING LOANS SHALL BE EVIDENCED BY
A SINGLE REVOLVING NOTE IN THE FORM OF EXHIBIT A ATTACHED HERETO (THE "REVOLVING
NOTE") AND THE TERM LOAN, IF ANY, SHALL BE EVIDENCED BY A TERM NOTE IN THE FORM
OF EXHIBIT B ATTACHED HERETO (THE "TERM NOTE" TOGETHER WITH THE REVOLVING NOTE
REFERRED TO HEREIN INDIVIDUALLY AS A "NOTE" AND COLLECTIVELY AS THE "NOTES").
EACH NOTE IS INCORPORATED HEREIN TO THE SAME EXTENT AS IF IT WAS SET FORTH IN
FULL IN THIS AGREEMENT.
SECTION 2
WARRANTIES AND REPRESENTATIONS
2.1
TO INDUCE THE LENDER TO ENTER INTO THIS LOAN AGREEMENT AND TO MAKE
THE LOANS, THE BORROWER WARRANTS AND REPRESENTS, AS OF THIS DATE AND AS OF THE
DATE OF EACH LOAN, UNLESS SUCH REPRESENTATION AND WARRANTY EXPRESSLY INDICATES
THAT IT IS MADE AS OF A SPECIFIC DATE, IN WHICH CASE, SOLELY AS OF SUCH DATE
THAT:
(A)
THE BORROWER IS A VALIDLY ORGANIZED AND
EXISTING CORPORATION UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD
STANDING UNDER THE LAWS OF SAID STATE.
THE BORROWER'S STATE ISSUED
ORGANIZATIONAL NUMBER IS 3332373.
(B)
THE BORROWER IS DULY QUALIFIED TO DO
BUSINESS AND IN GOOD STANDING AS A FOREIGN CORPORATION IN EACH STATE OR OTHER
JURISDICTION WHERE THE NATURE OF THE BUSINESS CONDUCTED BY IT OR THE PROPERTY
OWNED BY IT REQUIRES SUCH QUALIFICATION EXCEPT WHERE FAILURE TO QUALIFY WOULD
NOT BE REASONABLY LIKELY TO CAUSE A MATERIAL ADVERSE CHANGE.
(C)
THE BORROWER IS THE SOLE OWNER OF THE
COLLATERAL FREE AND CLEAR OF ALL LIENS, PLEDGES, CHARGES, SECURITY INTERESTS AND
ENCUMBRANCES, OTHER THAN THOSE BEING GRANTED TO THE LENDER.
(D)
THE BORROWER OWNS AND HOLDS OR LICENSES OR
LEASES ALL REAL AND PERSONAL PROPERTY NECESSARY OR INCIDENTAL TO THE PRESENT
CONDUCT OF ITS BUSINESS, INCLUDING, WITHOUT LIMITATION, PATENTS, TRADEMARKS,
SERVICE MARKS, TRADE NAMES, COPYRIGHTS AND LICENSES AND OTHER RIGHTS WITH
RESPECT TO THE FOREGOING EXCEPT WHERE FAILURE TO SO OWN, LICENSE OR LEASE WOULD
NOT CAUSE A MATERIAL ADVERSE CHANGE.
(E)
EXCEPT AS SET FORTH ON SCHEDULE 1, AS OF
THE DATE HEREOF, THERE ARE NO ACTIONS, SUITS, INVESTIGATIONS OR PROCEEDINGS
PENDING, OR TO THE KNOWLEDGE OF THE BORROWER THREATENED, AGAINST THE BORROWER OR
ANY OF ITS PROPERTIES IN ANY COURT, BEFORE ANY GOVERNMENTAL AUTHORITY,
ARBITRATION BOARD, OR ANY OTHER TRIBUNAL WHICH, SINGLY OR IN THE AGGREGATE,
WOULD REASONABLY BE EXPECTED TO CAUSE A MATERIAL ADVERSE CHANGE.
THE BORROWER
IS NOT, AS OF THE DATE HEREOF, NOR BY EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE PERFORMANCE OF