Agent shall have received such other approvals, opinions or documents as
it may reasonably request.
37
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01.
REPRESENTATIONS AND WARRANTIES OF THE SELLER.
THE SELLER
HEREBY REPRESENTS AND WARRANTS AS FOLLOWS:
(A)
THE SELLER IS A LIMITED LIABILITY COMPANY DULY FORMED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION SET FORTH IN
SCHEDULE IV HERETO (AS SUCH SCHEDULE IV MAY BE AMENDED FROM TIME TO TIME
PURSUANT TO SECTION 5.01(B)), AND IS DULY QUALIFIED TO DO BUSINESS, AND IS IN
GOOD STANDING, IN EVERY JURISDICTION WHERE THE NATURE OF ITS BUSINESS REQUIRES
IT TO BE SO QUALIFIED.
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE SELLER OF THE
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND THE OTHER DOCUMENTS TO BE
DELIVERED BY IT HEREUNDER, INCLUDING THE SELLER'S USE OF THE PROCEEDS OF
PURCHASES AND REINVESTMENTS, (I) ARE WITHIN THE SELLER'S LIMITED LIABILITY
COMPANY POWERS, (II) HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY LIMITED
LIABILITY COMPANY ACTION, (III) DO NOT CONTRAVENE (1) THE SELLER'S CERTIFICATE
OF FORMATION OR LIMITED LIABILITY COMPANY AGREEMENT, (2) ANY LAW, RULE OR
REGULATION APPLICABLE TO THE SELLER, (3) ANY CONTRACTUAL RESTRICTION BINDING ON
OR AFFECTING THE SELLER OR ITS PROPERTY OR (4) ANY ORDER, WRIT, JUDGMENT, AWARD,
INJUNCTION OR DECREE BINDING ON OR AFFECTING THE SELLER OR ITS PROPERTY, AND
(IV) DO NOT RESULT IN OR REQUIRE THE CREATION OF ANY LIEN, SECURITY INTEREST OR
OTHER CHARGE OR ENCUMBRANCE UPON OR WITH RESPECT TO ANY OF ITS PROPERTIES
(EXCEPT FOR THE INTEREST CREATED PURSUANT TO THIS AGREEMENT).
EACH OF THE
TRANSACTION DOCUMENTS TO WHICH THE SELLER IS A PARTY HAS BEEN DULY EXECUTED AND
DELIVERED BY THE SELLER.
(C)
NO AUTHORIZATION OR APPROVAL OR OTHER ACTION BY, AND NO NOTICE TO
OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR REGULATORY BODY IS REQUIRED FOR
THE DUE EXECUTION, DELIVERY AND PERFORMANCE BY THE SELLER OF THE TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY OR ANY OTHER DOCUMENT TO BE DELIVERED
THEREUNDER, EXCEPT FOR THE FILING OF UCC FINANCING STATEMENTS WHICH ARE REFERRED
TO THEREIN.
(D)
EACH OF THE TRANSACTION DOCUMENTS TO WHICH THE SELLER IS A PARTY
CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF THE SELLER ENFORCEABLE
AGAINST THE SELLER IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE
BANKRUPTCY, INSOLVENCY, MORATORIUM OR OTHER SIMILAR LAWS AFFECTING THE RIGHTS OF
CREDITORS GENERALLY AND GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A
PROCEEDING AT LAW OR IN EQUITY).
(E)
THE OPENING PRO FORMA BALANCE SHEET OF THE SELLER AS AT APRIL 30,
2007, GIVING EFFECT TO THE INITIAL PURCHASE TO BE MADE UNDER THIS AGREEMENT, A
COPY OF WHICH HAS BEEN FURNISHED TO THE AGENT, FAIRLY PRESENTS THE FINANCIAL
CONDITION OF THE SELLER AS AT SUCH DATE, IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES, AND SINCE APRIL 30, 2007 THERE HAS BEEN NO MATERIAL
ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, PROPERTY, PROSPECTS OR FINANCIAL OR
OTHER CONDITION OF THE SELLER.
(F)
THERE IS NO PENDING OR