INELIGIBILITY) OF THE
FEDERAL ACQUISITION REGULATIONS, 48 C.F.R. 9.400-9.409 AND (Z) THE REVISED
GOVERNMENT WIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) REGULATIONS (COMMON
RULE), 60 FED. REG. 33037 (JUNE 26, 1995).
ARTICLE VII.
CONDITIONS.
The obligation of the Bank to issue each Letter of Credit is subject to the
following conditions:
7.1
REPRESENTATIONS TRUE AND NO DEFAULTS.
(A)
THE REPRESENTATIONS AND WARRANTIES OF THE
BORROWER AND THE GUARANTORS CONTAINED IN THE INTERNATIONAL LOAN DOCUMENTS SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF THE DATE OF THE
ISSUANCE OF ANY LETTER OF CREDIT, AS THOUGH MADE ON AND AS OF SUCH DATE EXCEPT
FOR ANY REPRESENTATION OR WARRANTY WHICH IS SPECIFIED AS BEING MADE AS OF AN
EARLIER DATE, IN WHICH CASE SUCH REPRESENTATION OR WARRANTY SHALL ONLY SPEAK AS
TO SUCH EARLIER DATE; AND
(B)
NO EVENT OF DEFAULT OR DEFAULT SHALL HAVE
OCCURRED AND BE CONTINUING.
7.2
TERMS OF SALE.
LETTERS OF CREDIT SHALL BE
ISSUED ONLY AGAINST EXPORT ORDERS, COPIES OF WHICH HAVE BEEN DELIVERED TO THE
BANK, IF THE BANK OR EX-IM BANK REQUIRES, AND WHICH ARE MAINTAINED ON FILE WITH
THE BORROWER.
EACH LETTER OF CREDIT HEREUNDER IS SUBJECT TO THE CONDITION
PRECEDENT THAT THE BANK SHALL HAVE REVIEWED AND APPROVED IN ITS SOLE DISCRETION
THE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THAT THERE EXISTS
SATISFACTORY EVIDENCE THAT THE ITEMS WILL IN FACT BE EXPORTED, OF THE APPLICABLE
EXPORT ORDER.
7.3
GOVERNMENTAL APPROVALS.
THE BORROWER AND
EACH GUARANTOR AND THE BANK SHALL HAVE OBTAINED ALL GOVERNMENTAL APPROVALS
REQUIRED FOR THE MAKING AND CARRYING OUT OF THIS AGREEMENT, THE ISSUANCE OF
LETTERS OF CREDIT PURSUANT HERETO AND THE ISSUANCE OF THE NOTE AND THE
15
EXECUTION, DELIVERY AND PERFORMANCE OF THE APPLICABLE EXPORT ORDER THAT IS
INCLUDED IN THE INTERNATIONAL BORROWING BASE.
WITHOUT LIMITATION OF THE
FOREGOING, NO LETTER OF CREDIT SHALL BE ISSUED HEREUNDER (A) IN VIOLATION OF THE
EX-IM BANK GUARANTY OR CONTRARY TO THE INSTRUCTIONS OF EX-IM BANK OR
(B) FOLLOWING THE OCCURRENCE OF AN EVENT OF DEFAULT THAT IS CONTINUING OR OF ANY
EVENT WHICH BUT FOR THE GIVING OF NOTICE OR THE LAPSE OF TIME OR BOTH WOULD
CONSTITUTE AN EVENT OF DEFAULT PURSUANT TO SECTION 4.10 OF THE EX-IM BANK
GUARANTY.
7.4
LETTER OF CREDIT DOCUMENTS.
ON THE DATE OF
THE ISSUANCE OF ANY LETTER OF CREDIT, THE BANK SHALL HAVE RECEIVED FROM THE
BORROWER A LETTER OF CREDIT REQUEST IN RESPECT OF LETTERS OF CREDIT TO BE ISSUED
ON SUCH ISSUANCE DATE TOGETHER WITH SUCH OTHER DOCUMENTS AND CERTIFICATES
RELATING TO THE TRANSACTIONS HEREIN CONTEMPLATED AS THE BANK MAY REASONABLY
REQUEST.
7.5
REQUIRED INITIAL DOCUMENTS AND
CERTIFICATES.
ON OR BEFORE THE ISSUANCE OF THE FIRST LETTER OF CREDIT HEREUNDER
(THE "INITIAL DATE"), THE BANK SHALL HAVE RECEIVED FROM THE BORROWER OR, AS
APPLICABLE, EACH GUARANTOR THE FOLLOWING, IN EACH CASE IN FORM, SCOPE AND
SUBSTANCE SATISFACTORY TO THE BANK:
(I)
THE SBA/EX-IM BANK JOINT APPLICATION,
DULY EXECUTED BY THE PARTIES THERETO, TOGETHER WITH THE $100 APPLICATION