BY ANY AGREEMENT WHICH
WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
BORROWER IS NOT
IN DEFAULT IN ANY MATERIAL RESPECT IN THE PERFORMANCE, OBSERVANCE OR FULFILLMENT
OF ANY OF THE OBLIGATIONS, COVENANTS OR CONDITIONS CONTAINED IN ANY AGREEMENT OR
INSTRUMENT TO WHICH IT IS A PARTY OR BY WHICH BORROWER OR THE PROPERTY (OR ANY
PORTION THEREOF) IS BOUND WHICH DEFAULT WOULD CAUSE OR WOULD REASONABLY BE
EXPECTED TO CAUSE A MATERIAL ADVERSE EFFECT.
BORROWER HAS NO MATERIAL FINANCIAL
OBLIGATION UNDER ANY AGREEMENT OR INSTRUMENT TO WHICH BORROWER IS A PARTY OR BY
WHICH BORROWER OR THE PROPERTY (OR ANY PORTION THEREOF) IS OTHERWISE BOUND,
OTHER THAN (A) OBLIGATIONS INCURRED IN THE ORDINARY COURSE OF THE OPERATION OF
THE PROPERTY OR AS PERMITTED HEREIN AND (B) OBLIGATIONS UNDER THIS AGREEMENT,
THE SECURITY INSTRUMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS.
THERE IS NO
AGREEMENT OR INSTRUMENT TO WHICH BORROWER IS A PARTY OR BY WHICH BORROWER IS
BOUND THAT WOULD REQUIRE THE SUBORDINATION IN RIGHT OF PAYMENT OF ANY OF
BORROWER'S OBLIGATIONS HEREUNDER OR UNDER THE NOTE TO AN OBLIGATION OWED TO
ANOTHER PARTY.
SECTION 3.5
FINANCIAL CONDITION.
(A)
BORROWER IS SOLVENT, AND NO PROCEEDING UNDER CREDITORS RIGHTS
LAWS WITH RESPECT TO BORROWER HAS BEEN INITIATED AND BORROWER HAS RECEIVED
REASONABLY EQUIVALENT VALUE FOR THE GRANTING OF THE SECURITY INSTRUMENT.
(B)
NO PETITION IN BANKRUPTCY HAS BEEN FILED BY OR AGAINST
BORROWER OR GUARANTOR, IN THE LAST TEN (10) YEARS, AND NEITHER BORROWER NOR
GUARANTOR, IN THE LAST TEN (10) YEARS HAS EVER MADE ANY ASSIGNMENT FOR THE
BENEFIT OF CREDITORS OR TAKEN ADVANTAGE OF ANY CREDITORS RIGHTS LAWS.
(C)
BORROWER IS NOT CONTEMPLATING EITHER THE FILING OF A PETITION
BY IT UNDER ANY CREDITOR'S RIGHTS LAWS OR THE LIQUIDATION OF ITS ASSETS OR
PROPERTY, AND BORROWER DOES NOT HAVE ANY KNOWLEDGE OF ANY PERSON CONTEMPLATING
THE FILING OF ANY SUCH PETITION AGAINST IT.
SECTION 3.6
DISCLOSURE.
BORROWER HAS DISCLOSED TO ADMINISTRATIVE
AGENT ALL MATERIAL FACTS AND HAS NOT FAILED TO DISCLOSE ANY MATERIAL FACT THAT
COULD CAUSE ANY REPRESENTATION OR WARRANTY MADE HEREIN TO BE MATERIALLY
MISLEADING.
ALL STATEMENTS OF FACT MADE BY BORROWER AND/OR GUARANTOR IN THIS
AGREEMENT OR IN THE OTHER LOAN DOCUMENTS ARE ACCURATE, COMPLETE AND CORRECT IN
ALL MATERIAL RESPECTS.
THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN ANY
CONDITION, FACT, CIRCUMSTANCE OR EVENT THAT WOULD MAKE ANY SUCH INFORMATION
INACCURATE, INCOMPLETE OR OTHERWISE MISLEADING IN ANY MATERIAL RESPECT OR THAT
WOULD OTHERWISE HAVE A MATERIAL ADVERSE EFFECT.
SECTION 3.7
NO PLAN ASSETS.
AS OF THE DATE HEREOF AND THROUGHOUT THE
TERM OF THE LOAN (A) BORROWER IS NOT AND WILL NOT BE AN "EMPLOYEE BENEFIT PLAN,"
AS DEFINED IN SECTION 3(3) OF ERISA, SUBJECT TO TITLE I OF ERISA, (B) BORROWER
IS NOT AND WILL NOT BE A "GOVERNMENTAL PLAN" WITHIN THE MEANING OF SECTION 3(32)
OF ERISA; AND (C)
THE ASSETS OF THE
42
Borrower would not be considered "plan assets" within the meaning of 29 CFR
Section 2510.3-101