OF OTHER
COLLATERAL.
8.
REPRESENTATIONS AND WARRANTIES
Each Borrower and Guarantor hereby represents and warrants to Agent and Lenders
the following (which shall survive the execution and delivery of this
Agreement), the truth and accuracy of which are a continuing condition of the
making of Loans and providing Letter of Credit Accommodations to Borrowers:
8.1
CORPORATE EXISTENCE, POWER AND AUTHORITY.
EACH BORROWER AND
GUARANTOR IS A CORPORATION OR LIMITED LIABILITY COMPANY DULY ORGANIZED AND IN
GOOD STANDING UNDER THE LAWS OF ITS STATE OF INCORPORATION OR FORMATION
IDENTIFIED IN ITS INFORMATION CERTIFICATE AND IS DULY QUALIFIED AS A FOREIGN
CORPORATION OR LIMITED LIABILITY COMPANY AND IN GOOD STANDING IN ALL STATES OR
OTHER JURISDICTIONS WHERE THE NATURE AND EXTENT OF THE BUSINESS TRANSACTED BY IT
OR THE OWNERSHIP OF ASSETS MAKES SUCH QUALIFICATION NECESSARY, EXCEPT FOR THOSE
JURISDICTIONS IN WHICH THE FAILURE TO SO QUALIFY WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT ON SUCH BORROWER'S OR GUARANTOR'S FINANCIAL CONDITION, RESULTS OF
OPERATION OR BUSINESS OR THE RIGHTS OF AGENT IN OR TO ANY OF THE COLLATERAL. THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT, THE OTHER FINANCING
AGREEMENTS AND THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THEREUNDER BY EACH
BORROWER AND GUARANTOR (A) ARE ALL WITHIN SUCH BORROWER'S OR GUARANTOR'S
CORPORATE OR LIMITED LIABILITY COMPANY POWERS, (B) HAVE BEEN DULY AUTHORIZED,
(C) ARE NOT IN CONTRAVENTION OF LAW OR THE TERMS OF SUCH BORROWER'S OR
GUARANTOR'S CERTIFICATE OF INCORPORATION, CERTIFICATE OF FORMATION, BY-LAWS,
OPERATING AGREEMENT OR OTHER ORGANIZATIONAL DOCUMENTATION, OR ANY INDENTURE,
AGREEMENT OR UNDERTAKING TO WHICH SUCH BORROWER OR GUARANTOR IS A PARTY OR BY
WHICH SUCH BORROWER OR GUARANTOR OR ITS PROPERTY ARE BOUND, EXCEPT FOR THOSE
LEASE AGREEMENTS OF LERNER FOR WHICH LERNER DID NOT OBTAIN CONSENTS FROM THE
PARTIES THERETO WITH RESPECT TO THIS AGREEMENT, AND (D) 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
SUCH BORROWER OR GUARANTOR OTHER THAN LIENS IN FAVOR OF AGENT OR ANY LENDER AS
CONTEMPLATED HEREBY. THIS AGREEMENT AND THE OTHER FINANCING AGREEMENTS TO WHICH
EACH BORROWER AND GUARANTOR IS A PARTY CONSTITUTE LEGAL, VALID AND BINDING
OBLIGATIONS OF SUCH BORROWER OR GUARANTOR ENFORCEABLE IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS.
77
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 PAGES OF THIS AGREEMENT AND IN EACH BORROWER'S AND
GUARANTOR'S INFORMATION CERTIFICATE, SUBJECT TO THE RIGHTS OF BORROWERS AND
GUARANTORS TO CHANGE NAMES IN ACCORDANCE WITH SECTION 9.1(B) HEREOF. NO BORROWER
OR GUARANTOR HAS, DURING THE FIVE YEARS IMMEDIATELY PRIOR TO THE DATE HEREOF,
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