failure to so qualify would not have a Material
Adverse Effect.
The execution, delivery and performance of this Agreement, the
other Financing Agreements and the transactions contemplated hereunder and
thereunder (a) are all within each Borrower's and Guarantor's corporate or
limited liability powers, as applicable, (b)
have been duly authorized, (c) are
not in contravention of law or the terms of any Borrower's or Guarantor's
certificate of incorporation, by-laws, or other organizational documentation,
(d) are not in contravention of the terms of or any indenture, agreement or
undertaking to which any Borrower or Guarantor is a party or by which any
Borrower or Guarantor or its property are bound and (e) will not result in the
creation or imposition of, or require or give rise to any obligation to grant,
any lien, security interest, charge or other encumbrance upon any property of
any Borrower or Guarantor, except for security interests and liens expressly
permitted by Section 9.8 hereof.
This Agreement and the other Financing
Agreements to which any Borrower or Guarantor is a party constitute legal, valid
and binding obligations of such Borrower and Guarantor enforceable in accordance
with their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar law limiting
creditors' rights generally and by general equitable principles.
8.2
Name; State of Organization; Chief Executive
Office; Collateral Locations.
(A)
THE EXACT LEGAL NAME OF EACH BORROWER AND
GUARANTOR IS AS SET FORTH ON THE SIGNATURE PAGE OF THIS AGREEMENT AND IN THE
INFORMATION CERTIFICATE.
NO BORROWER OR GUARANTOR HAS, DURING THE FIVE YEARS
PRIOR TO THE DATE OF THIS AGREEMENT, BEEN KNOWN BY OR USED ANY OTHER CORPORATE
OR FICTITIOUS NAME OR BEEN A PARTY TO ANY MERGER OR CONSOLIDATION, OR ACQUIRED
ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF ANY PERSON, OR ACQUIRED ANY OF ITS
PROPERTY OR ASSETS OUT OF THE ORDINARY COURSE OF BUSINESS, EXCEPT FOR THE
ACQUISITION AND AS SET FORTH IN THE INFORMATION CERTIFICATE.
(B)
EACH BORROWER AND GUARANTOR IS AN
ORGANIZATION OF THE TYPE AND ORGANIZED IN THE JURISDICTION SET FORTH IN THE
INFORMATION CERTIFICATE.
THE INFORMATION CERTIFICATE ACCURATELY SETS FORTH THE
ORGANIZATIONAL IDENTIFICATION NUMBER OF EACH BORROWER AND GUARANTOR OR
ACCURATELY
61
STATES THAT SUCH BORROWER OR GUARANTOR HAS NONE AND ACCURATELY SETS FORTH THE
FEDERAL EMPLOYER IDENTIFICATION NUMBER OF EACH BORROWER AND GUARANTOR.
(C)
THE CHIEF EXECUTIVE OFFICE AND MAILING
ADDRESS OF EACH BORROWER AND GUARANTOR AND EACH BORROWER'S AND GUARANTOR'S
RECORDS CONCERNING ACCOUNTS ARE LOCATED ONLY AT THE ADDRESS IDENTIFIED AS SUCH
IN SCHEDULE 8.2 TO THE INFORMATION CERTIFICATE AND ITS ONLY OTHER PLACES OF
BUSINESS AND THE ONLY OTHER LOCATIONS OF COLLATERAL, IF ANY, ARE THE ADDRESSES
SET FORTH IN SCHEDULE 8.2 TO THE INFORMATION CERTIFICATE, SUBJECT TO THE RIGHTS
OF ANY BORROWER OR GUARANTOR TO ESTABLISH NEW LOCATIONS IN ACCORDANCE WITH
SECTION 9.2 BELOW AND OTHER THAN COLLATERAL IN TRANSIT TO ANY SUCH LOCATIONS.
THE INFORMATION CERTIFICATE CORRECTLY IDENTIFIES ANY OF SUCH LOCATIONS WHICH ARE
NOT OWNED BY A BORROWER