LOAN AS THOUGH MADE ON SUCH DATE, EXCEPT TO THE EXTENT SUCH REPRESENTATION
OR WARRANTY EXPRESSLY RELATES TO AN EARLIER DATE.
SECTION 5
REPRESENTATIONS AND
WARRANTIES.
To induce the Bank to make the Loans, the Borrower makes the following
representations and warranties to the Bank, each of which shall survive the
execution and delivery of this Agreement.
Such representations and warranties
shall be true as of the date of this Agreement and as of the date of any Loan.
5.1
BORROWER ORGANIZATION AND NAME.
THE
BORROWER AND EACH SUBSIDIARY, IF ANY, IS DULY ORGANIZED, EXISTING AND IN GOOD
STANDING, WITH FULL AND ADEQUATE POWER TO CARRY ON AND CONDUCT ITS BUSINESS AS
PRESENTLY CONDUCTED.
THE BORROWER AND EACH SUBSIDIARY, IF ANY, IS DULY LICENSED
OR QUALIFIED IN ALL FOREIGN JURISDICTIONS WHEREIN THE NATURE OF ITS ACTIVITIES
REQUIRES SUCH QUALIFICATION OR LICENSING.
THE EXACT LEGAL NAME OF THE BORROWER
IS AS SET FORTH IN THE FIRST PARAGRAPH OF THIS AGREEMENT.
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5.2
AUTHORIZATION.
THE BORROWER HAS FULL RIGHT,
POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT, TO MAKE THE BORROWINGS AND
EXECUTE AND DELIVER THE LOAN DOCUMENTS AS PROVIDED HEREIN AND TO PERFORM ALL OF
ITS DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS WILL
NOT, NOR WILL THE OBSERVANCE OR PERFORMANCE OF ANY OF THE MATTERS AND THINGS
HEREIN OR THEREIN SET FORTH, VIOLATE OR CONTRAVENE ANY PROVISION OF LAW OR OF
THE BORROWER'S ORGANIZATIONAL DOCUMENTS, NOR REQUIRE ANY CONSENT, APPROVAL,
AUTHORIZATION, OR FILINGS WITH, NOTICE TO OR OTHER ACT BY OR IN RESPECT OF, ANY
GOVERNMENTAL AUTHORITY OR ANY OTHER PARTY (OTHER THAN ANY CONSENT OR APPROVAL
WHICH HAS BEEN OBTAINED AND IS IN FULL FORCE AND EFFECT).
ALL NECESSARY AND
APPROPRIATE ACTION HAS BEEN TAKEN ON THE PART OF THE BORROWER TO AUTHORIZE THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE LOAN DOCUMENTS.
5.3
VALIDITY AND BINDING NATURE.
THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS ARE THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE
BORROWER, ENFORCEABLE AGAINST THE BORROWER IN ACCORDANCE WITH THEIR TERMS,
SUBJECT TO BANKRUPTCY, INSOLVENCY AND SIMILAR LAWS AFFECTING THE ENFORCEABILITY
OF CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY.
5.4
OWNERSHIP OF PROPERTIES; LIENS.
THE
BORROWER OWNS OR HAS OTHER RIGHTS IN ALL OF ITS PROPERTIES AND ASSETS, REAL AND
PERSONAL, TANGIBLE AND INTANGIBLE, OF ANY NATURE WHATSOEVER (INCLUDING PATENTS,
TRADEMARKS, TRADE NAMES, SERVICE MARKS AND COPYRIGHTS), FREE AND CLEAR OF ALL
LIENS, CHARGES AND CLAIMS (INCLUDING INFRINGEMENT CLAIMS WITH RESPECT TO
PATENTS, TRADEMARKS, SERVICE MARKS, COPYRIGHTS AND THE LIKE), OTHER THAN
PERMITTED LIENS.
5.5
EQUITY OWNERSHIP.
ALL ISSUED AND
OUTSTANDING CAPITAL SECURITIES OF THE BORROWER AND EACH OF ITS SUBSIDIARIES ARE
DULY AUTHORIZED AND VALIDLY ISSUED, FULLY PAID, NON-ASSESSABLE, AND SUCH
SECURITIES WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL LAWS
CONCERNING THE ISSUANCE OF SECURITIES.
5.6
INTELLECTUAL PROPERTY.
THE BORROWER OWNS
AND POSSESSES OR HAS A LICENSE OR OTHER RIGHT TO USE