PRECEDENT TO ALL ADVANCES AND LETTERS OF
CREDIT.
THE LENDER'S OBLIGATION TO MAKE EACH ADVANCE OR TO CAUSE THE ISSUANCE
OF A LETTER OF CREDIT SHALL BE SUBJECT TO THE FURTHER CONDITIONS PRECEDENT THAT:
(A)
THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE V ARE
CORRECT ON AND AS OF THE DATE OF SUCH ADVANCE OR ISSUANCE OF A LETTER OF CREDIT
AS THOUGH MADE ON AND AS OF SUCH DATE, EXCEPT TO THE EXTENT THAT SUCH
REPRESENTATIONS AND WARRANTIES RELATE SOLELY TO AN EARLIER DATE; AND
(B)
NO EVENT HAS OCCURRED AND IS CONTINUING, OR WOULD RESULT FROM SUCH
ADVANCE OR ISSUANCE OF A LETTER OF CREDIT THAT CONSTITUTES A DEFAULT OR AN EVENT
OF DEFAULT.
21
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower each represents and warrants to the Lender as follows:
SECTION 5.1
EXISTENCE AND POWER; NAME; CHIEF EXECUTIVE OFFICE;
INVENTORY AND EQUIPMENT LOCATIONS; FEDERAL EMPLOYER IDENTIFICATION NUMBER AND
ORGANIZATIONAL IDENTIFICATION NUMBER.
THE BORROWER IS A CORPORATION DULY
ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF
MINNESOTA AND IS DULY LICENSED OR QUALIFIED TO TRANSACT BUSINESS IN ALL
JURISDICTIONS WHERE THE CHARACTER OF THE PROPERTY OWNED OR LEASED OR THE NATURE
OF THE BUSINESS TRANSACTED BY IT MAKES SUCH LICENSING OR QUALIFICATION
NECESSARY.
THE BORROWER HAS ALL REQUISITE POWER AND AUTHORITY TO CONDUCT ITS
BUSINESS, TO OWN ITS PROPERTIES AND TO EXECUTE AND DELIVER, AND TO PERFORM ALL
OF ITS OBLIGATIONS UNDER, THE LOAN DOCUMENTS.
DURING ITS EXISTENCE, THE
BORROWER HAS DONE BUSINESS SOLELY UNDER THE NAMES SET FORTH IN SCHEDULE 5.1.
THE BORROWER'S CHIEF EXECUTIVE OFFICE AND PRINCIPAL PLACE OF BUSINESS IS LOCATED
AT THE ADDRESS SET FORTH IN SCHEDULE 5.1, AND ALL OF THE BORROWER'S RECORDS
RELATING TO ITS BUSINESS OR THE COLLATERAL ARE KEPT AT THAT LOCATION.
ALL
INVENTORY AND EQUIPMENT IS LOCATED AT THAT LOCATION OR AT ONE OF THE OTHER
LOCATIONS LISTED IN SCHEDULE 5.1.
THE BORROWER'S FEDERAL EMPLOYER
IDENTIFICATION NUMBER AND ORGANIZATION IDENTIFICATION NUMBER ARE CORRECTLY SET
FORTH IN SECTION 3.6.
SECTION 5.2
CAPITALIZATION.
THERE ARE NO RIGHTS TO ACQUIRE OWNERSHIP
INTERESTS WHICH IF FULLY EXERCISED WOULD CAUSE SUCH PERSON TO HOLD MORE THAN
FIVE PERCENT (5%) OF ALL OWNERSHIP INTERESTS OF THE BORROWER ON A FULLY DILUTED
BASIS.
SECTION 5.3
AUTHORIZATION OF BORROWING; NO CONFLICT AS TO LAW OR
AGREEMENTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE BORROWER OF THE LOAN
DOCUMENTS AND THE BORROWINGS FROM TIME TO TIME HEREUNDER HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE ACTION AND DO NOT AND WILL NOT (I) REQUIRE
ANY CONSENT OR APPROVAL OF THE BORROWER'S OWNERS; (II) REQUIRE ANY
AUTHORIZATION, CONSENT OR APPROVAL BY, OR REGISTRATION, DECLARATION OR FILING
WITH, OR NOTICE TO, ANY GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD, BUREAU,
AGENCY OR INSTRUMENTALITY, DOMESTIC OR FOREIGN, OR ANY THIRD PARTY, EXCEPT SUCH
AUTHORIZATION, CONSENT, APPROVAL, REGISTRATION, DECLARATION, FILING OR NOTICE AS
HAS BEEN OBTAINED, ACCOMPLISHED OR GIVEN PRIOR TO THE DATE HEREOF; (III) VIOLATE
ANY PROVISION OF ANY LAW, RULE OR REGULATION (INCLUDING REGULATION X OF