the Loans and issue or participate in the Letters of Credit, each Borrower
hereby represents and warrants to each Agent and each Lender that:
5.1.
FORMATION AND QUALIFICATION.
EACH LOAN PARTY IS A CORPORATION
DULY ORGANIZED AND VALIDLY EXISTING UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION AND, TO THE EXTENT APPLICABLE, DULY QUALIFIED AND IN GOOD STANDING
IN EVERY OTHER STATE OR JURISDICTION IN WHICH THE NATURE OF SUCH LOAN PARTY'S
BUSINESS REQUIRES SUCH QUALIFICATION EXCEPT WHERE THE FAILURE TO SO QUALIFY
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT;
5.2.
CORPORATE POWER AND AUTHORITY.
EACH LOAN PARTY IS DULY AUTHORIZED
AND EMPOWERED TO ENTER INTO, EXECUTE, DELIVER AND PERFORM THIS AGREEMENT AND
EACH OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY.
EXCEPT AS DESCRIBED IN
SCHEDULE 5.2, THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND EACH
OF THE OTHER LOAN DOCUMENTS HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
ACTION AND DO NOT AND WILL NOT (I) REQUIRE ANY CONSENT OR APPROVAL OF THE
SHAREHOLDERS OF SUCH LOAN PARTY OR ANY CONSENT OR THE AUTHORIZATION OF, FILING
WITH, NOTICE TO OR OTHER ACT BY OR IN RESPECT OF, ANY GOVERNMENTAL AUTHORITY OR
ANY OTHER PERSON (EXCEPT AS SPECIFICALLY CONTEMPLATED BY THE LOAN DOCUMENTS);
(II) CONTRAVENE ANY LOAN PARTIES' CHARTER, ARTICLES OR CERTIFICATE OF
INCORPORATION OR BY-LAWS; (III) VIOLATE, OR CAUSE SUCH LOAN PARTY TO BE IN
DEFAULT UNDER, ANY PROVISION OF ANY LAW, RULE, REGULATION, ORDER, WRIT,
JUDGMENT,
47
INJUNCTION, DECREE, DETERMINATION OR AWARD IN EFFECT HAVING APPLICABILITY TO
SUCH LOAN PARTY; (IV) RESULT IN A BREACH OF OR CONSTITUTE A DEFAULT UNDER ANY
INDENTURE OR LOAN OR CREDIT AGREEMENT, OR ANY OTHER AGREEMENT, LEASE OR
INSTRUMENT TO WHICH SUCH LOAN PARTY IS A PARTY OR BY WHICH IT OR ITS PROPERTIES
MAY BE BOUND OR AFFECTED THAT COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT; OR (V) RESULT IN, OR REQUIRE, THE CREATION OR IMPOSITION OF ANY
LIEN UPON OR WITH RESPECT TO ANY OF THE PROPERTIES NOW OWNED OR HEREAFTER
ACQUIRED BY SUCH LOAN PARTY (EXCEPT AS SPECIFICALLY CONTEMPLATED BY THE LOAN
DOCUMENTS).
5.3.
LEGALLY ENFORCEABLE AGREEMENT.
THIS AGREEMENT IS, AND EACH OF THE
OTHER LOAN DOCUMENTS WHEN DELIVERED UNDER THIS AGREEMENT WILL BE, A LEGAL, VALID
AND BINDING OBLIGATION OF EACH LOAN PARTY ENFORCEABLE AGAINST IT IN ACCORDANCE
WITH ITS RESPECTIVE TERMS, EXCEPT AS THE ENFORCEABILITY THEREOF MAY BE LIMITED
BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAWS
AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY, BY GENERAL EQUITABLE
PRINCIPLES (WHETHER ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT LAW)
AND AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
5.4.
EXECUTIVE OFFICES.
EACH LOAN PARTY KEEPS AND WILL CONTINUE TO
KEEP ALL OF ITS BOOKS AND RECORDS CONCERNING THE COLLATERAL AT ITS OFFICES
LOCATED AT THE ADDRESSES SET FORTH IN SCHEDULE 5.4 AND WILL NOT MOVE SUCH BOOKS
AND RECORDS TO ANY LOCATION OTHER THAN AS SET FORTH IN SCHEDULE 5.4 WITHOUT
GIVING