REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1
DUE ORGANIZATION AND AUTHORIZATION.
BORROWER AND EACH OF ITS
SUBSIDIARIES, IF ANY, ARE DULY EXISTING AND IN GOOD STANDING AS REGISTERED
ORGANIZATIONS IN THEIR RESPECTIVE JURISDICTIONS OF FORMATION AND ARE QUALIFIED
AND LICENSED TO DO BUSINESS AND ARE IN GOOD STANDING IN ANY JURISDICTION IN
WHICH THE CONDUCT OF THEIR BUSINESS OR THEIR OWNERSHIP OF PROPERTY REQUIRES THAT
THEY BE QUALIFIED EXCEPT WHERE THE FAILURE TO DO SO COULD NOT REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON BORROWER'S BUSINESS.
IN
CONNECTION WITH THIS AGREEMENT, BORROWER HAS DELIVERED TO BANK A COMPLETED
CERTIFICATE SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT C SIGNED BY
BORROWER, ENTITLED "PERFECTION CERTIFICATE".
BORROWER REPRESENTS AND WARRANTS
TO BANK THAT (A) BORROWER'S EXACT LEGAL NAME IS THAT INDICATED ON THE PERFECTION
CERTIFICATE AND ON THE SIGNATURE PAGE HEREOF; (B) BORROWER IS AN ORGANIZATION OF
THE TYPE AND IS ORGANIZED IN THE JURISDICTION SET FORTH IN THE PERFECTION
CERTIFICATE; (C) THE PERFECTION CERTIFICATE ACCURATELY SETS FORTH BORROWER'S
ORGANIZATIONAL IDENTIFICATION NUMBER OR ACCURATELY STATES THAT BORROWER HAS
NONE; (D) THE PERFECTION CERTIFICATE ACCURATELY SETS FORTH BORROWER'S PLACE OF
BUSINESS, OR, IF MORE THAN ONE, ITS CHIEF EXECUTIVE OFFICE AS WELL AS BORROWER'S
MAILING ADDRESS (IF DIFFERENT THAN ITS CHIEF EXECUTIVE OFFICE); (E) BORROWER
(AND EACH OF ITS PREDECESSORS) HAS NOT, IN THE PAST FIVE (5) YEARS, CHANGED ITS
JURISDICTION OF FORMATION, ORGANIZATIONAL STRUCTURE OR TYPE, OR ANY
ORGANIZATIONAL NUMBER ASSIGNED BY ITS JURISDICTION; AND (F) ALL OTHER
INFORMATION SET FORTH ON THE PERFECTION CERTIFICATE PERTAINING TO BORROWER AND
EACH OF ITS SUBSIDIARIES IS ACCURATE AND COMPLETE.
IF BORROWER IS NOT NOW A
REGISTERED ORGANIZATION BUT LATER BECOMES ONE, BORROWER SHALL PROMPTLY NOTIFY
BANK OF SUCH OCCURRENCE AND PROVIDE BANK WITH BORROWER'S ORGANIZATIONAL
IDENTIFICATION NUMBER.
The execution, delivery and performance of the Loan Documents have been duly
authorized, and do not conflict with Borrower's organizational documents, nor
constitute an event of default under any material agreement by which Borrower is
bound.
Borrower is not in default under any agreement to which it is a party or
by which it is bound in which the default could have a material adverse effect
on Borrower's business.
5.2
COLLATERAL.
BORROWER HAS GOOD TITLE TO, HAS RIGHTS IN, AND THE
POWER TO TRANSFER EACH ITEM OF COLLATERAL UPON WHICH IT PURPORTS TO GRANT A LIEN
HEREUNDER, FREE AND CLEAR OF ANY AND ALL LIENS EXCEPT PERMITTED LIENS.
BORROWER
HAS NO DEPOSIT ACCOUNTS OTHER THAN THE DEPOSIT ACCOUNTS WITH BANK.
THE COLLATERAL IS NOT IN THE POSSESSION OF ANY THIRD PARTY BAILEE (SUCH AS A
WAREHOUSE) EXCEPT AS OTHERWISE PROVIDED IN THE PERFECTION CERTIFICATE.
NONE OF
THE COMPONENTS OF THE COLLATERAL SHALL BE MAINTAINED AT LOCATIONS
6
OTHER THAN AS PROVIDED IN THE PERFECTION CERTIFICATE.
IN THE EVENT THAT
BORROWER, AFTER THE DATE HEREOF, INTENDS TO STORE OR OTHERWISE DELIVER ANY
PORTION OF THE COLLATERAL TO A BAILEE, THEN BORROWER WILL FIRST RECEIVE THE
WRITTEN CONSENT OF BANK AND SUCH