OF THIS SECTION 2.17.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1.
REPRESENTATIONS AND WARRANTIES OF
THE BORROWER.
THE BORROWER REPRESENTS AND WARRANTS TO EACH OF THE SECURED
PARTIES ON THE CLOSING DATE AND EACH LOAN DATE THAT:
(A)
EXISTENCE AND STANDING.
THE BORROWER
(I) IS A BUSINESS TRUST DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING
UNDER THE LAWS OF THE STATE OF DELAWARE, (II) HAS ALL POWER AND ALL MATERIAL
GOVERNMENTAL LICENSES, AUTHORIZATIONS, CONSENTS, AND APPROVALS REQUIRED TO CARRY
ON ITS BUSINESS IN EACH JURISDICTION IN WHICH ITS BUSINESS IS NOW CONDUCTED, AND
(III) IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD STANDING UNDER THE LAWS OF
EACH JURISDICTION WHERE THE CONDUCT OF ITS BUSINESS REQUIRES SUCH QUALIFICATION.
(B)
AUTHORIZATION AND CONTRAVENTION.
THE
EXECUTION, DELIVERY, AND PERFORMANCE BY THE BORROWER OF THIS LOAN AGREEMENT, THE
VFN, AND THE OTHER OPERATIVE DOCUMENT TO WHICH THE BORROWER IS A PARTY ARE
WITHIN THE BORROWER'S POWERS, HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION,
REQUIRE NO ACTION BY OR IN RESPECT OF, OR FILING WITH, ANY GOVERNMENTAL
AUTHORITY, AND DO NOT CONTRAVENE, OR CONSTITUTE A DEFAULT UNDER, ANY PROVISION
OF APPLICABLE LAW OR REGULATION OR ANY OTHER OPERATIVE DOCUMENT TO WHICH THE
BORROWER IS A PARTY, OR OF ANY AGREEMENT, JUDGMENT, INJUNCTION, ORDER, DECREE OR
OTHER INSTRUMENT BINDING UPON THE BORROWER, OR RESULT IN THE CREATION OR
IMPOSITION OF ANY LIEN ON ASSETS OF THE BORROWER.
(C)
BINDING EFFECT.
THIS LOAN AGREEMENT AND
THE VFN CONSTITUTE THE LEGAL, VALID, AND BINDING OBLIGATIONS OF THE BORROWER,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, MORATORIUM, OR OTHER SIMILAR LAWS AFFECTING THE RIGHTS OF CREDITORS.
(D)
PERFECTION.
AT ALL TIMES, THE BORROWER
SHALL BE THE OWNER OF ALL OF THE COLLATERAL, FREE AND CLEAR OF ALL LIENS,
ENCUMBRANCES, SECURITY INTERESTS, PREFERENCES, OR OTHER SECURITY ARRANGEMENT OF
ANY KIND OR NATURE WHATSOEVER (OTHER THAN THOSE PERMITTED BY THE OPERATIVE
DOCUMENTS), AND ALL MORTGAGES, FINANCING STATEMENTS, AND OTHER DOCUMENTS
REQUIRED TO BE RECORDED OR FILED IN ORDER TO PERFECT AND PROTECT THE COLLATERAL
AGAINST ALL CREDITORS OF AND PURCHASERS FROM THE BORROWER WILL HAVE BEEN DULY
FILED IN EACH FILING OFFICE NECESSARY FOR SUCH PURPOSE AND ALL FILING FEES AND
TAXES, IF ANY, PAYABLE IN CONNECTION WITH SUCH FILINGS SHALL HAVE BEEN PAID IN
FULL.
(E)
GOOD TITLE.
AT ALL TIMES, THE COLLATERAL
AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, SHALL HAVE A VALID AND PERFECTED
FIRST-PRIORITY SECURITY INTEREST IN THE COLLATERAL FREE AND CLEAR OF ANY ADVERSE
CLAIM, OTHER THAN ANY CLAIMS MADE THROUGH THE COLLATERAL AGENT OR THE SECURED
PARTIES.
(F)
ACCURACY OF INFORMATION.
ALL INFORMATION
HERETOFORE FURNISHED BY THE BORROWER OR ANY AFFILIATE OF THE BORROWER
(INCLUDING, WITHOUT LIMITATION, ANY INFORMATION DELIVERED PURSUANT TO
SECTIONS 2.10 AND 5.1 HEREOF) TO THE SURETY PROVIDER, ANY LENDER, ANY BANK
INVESTOR, THE AGENT OR ANY MANAGING AGENT FOR PURPOSES OF OR IN CONNECTION WITH
THIS LOAN
17
AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY IS, AND ALL SUCH