OR TO
TAKE ANY ACTION TO COLLECT OR ENFORCE ANY CLAIM FOR PAYMENT ASSIGNED HEREUNDER.
SECTION 5.
REPRESENTATIONS AND WARRANTIES.
EACH BORROWER JOINTLY AND
SEVERALLY REPRESENTS AND WARRANTS TO THE COLLATERAL AGENT AS FOLLOWS:
(A)
ALL OF SUCH BORROWER'S EQUIPMENT AND INVENTORY (I) WERE ACQUIRED
IN THE ORDINARY COURSE OF BUSINESS AND (II) ARE LOCATED AT THE PLACES SPECIFIED
IN SCHEDULE I HERETO.
THE PRINCIPAL PLACE OF BUSINESS AND CHIEF EXECUTIVE
OFFICE OF SUCH BORROWER AND THE OFFICE WHERE SUCH BORROWER KEEPS ITS RECORDS
CONCERNING ACCOUNTS RECEIVABLE AND OTHER COLLATERAL ARE LOCATED AT THE ADDRESS
SPECIFIED IN SCHEDULE I HERETO.
ALL ORIGINALS OF ALL CHATTEL PAPER WHICH
EVIDENCE ACCOUNTS RECEIVABLE THAT ARE NOT REQUIRED TO BE DELIVERED TO THE SENIOR
LENDERS HAVE BEEN DELIVERED TO THE COLLATERAL AGENT.
NONE OF THE ACCOUNTS
RECEIVABLE IS EVIDENCED BY A PROMISSORY NOTE OR OTHER INSTRUMENT.
7
(B)
SUCH BORROWER OWNS ITS COLLATERAL FREE AND CLEAR OF ANY LIEN (AS
DEFINED BELOW), EXCEPT FOR THE SECURITY INTEREST CREATED BY THIS SECURITY
AGREEMENT AND PERMITTED LIENS EXISTING ON THE DATE HEREOF.
NO EFFECTIVE
FINANCING STATEMENT OR OTHER INSTRUMENT SIMILAR IN EFFECT COVERING ALL OR ANY
PART OF THE COLLATERAL IS ON FILE IN ANY RECORDING OFFICE, EXCEPT (I) FOR
FINANCING STATEMENTS FILED IN FAVOR OF THE COLLATERAL AGENT RELATING TO THIS
SECURITY AGREEMENT AND (II) IN CONNECTION WITH PERMITTED LIENS.
FOR PURPOSES OF
THIS AGREEMENT, "LIEN" MEANS ANY MORTGAGE, DEED OF TRUST, PLEDGE, SECURITY
INTEREST, HYPOTHECATION, ASSIGNMENT, DEPOSIT ARRANGEMENT, ENCUMBRANCE, LIEN
(STATUTORY OR OTHER), PREFERENCE OR OTHER SECURITY AGREEMENT OR PREFERENTIAL
ARRANGEMENT, CHARGE OR ENCUMBRANCE OF ANY KIND OR NATURE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ANY CONDITIONAL SALE OR OTHER TITLE RETENTION AGREEMENT, ANY
FINANCING LEASE HAVING SUBSTANTIALLY THE SAME ECONOMIC EFFECT AS ANY OF THE
FOREGOING, AND THE FILING OF ANY FINANCING STATEMENT UNDER THE UCC OR COMPARABLE
LAW OF ANY JURISDICTION TO EVIDENCE ANY OF THE FOREGOING), EXCEPT FOR REASONABLE
SECURITY INTERESTS IN PURCHASE- MONEY COLLATERAL (AS SUCH TERM IS DEFINED IN
§9-103 OF THE UCC) TO THE EXTENT SUCH SECURITY INTERESTS SECURE PURCHASE-MONEY
OBLIGATIONS TO FINANCE ACQUISITIONS OF SUCH PURCHASE MONEY COLLATERAL.
(C)
SUCH BORROWER CONDUCTS NO BUSINESS UNDER ANY NAME OR TRADE NAME OTHER
THAN ITS PROPER CORPORATE NAME, WHICH IS THE NAME SET FORTH IN THE PREAMBLE
HERETO.
(D)
SUCH BORROWER HAS EXCLUSIVE POSSESSION AND CONTROL OF ITS EQUIPMENT
AND INVENTORY.
(E)
SCHEDULE II SETS FORTH A COMPLETE AND CORRECT LIST OF ALL PATENTS,
TRADEMARKS AND REGISTERED COPYRIGHTS OWNED OR APPLIED FOR BY SUCH BORROWER ON
THE DATE HEREOF.
SUCH BORROWER HAS THE RIGHT TO USE ALL ITS PATENTS,
TRADEMARKS, AND COPYRIGHTS AND ALL COMPUTER PROGRAMS AND OTHER SIMILAR OR
RELATED RIGHTS, FREE FROM RESTRICTIONS, WHICH ARE NECESSARY FOR THE OPERATION OF
ITS BUSINESSES AS PRESENTLY CONDUCTED.
THERE IS NOT PENDING OR, TO THE
KNOWLEDGE OF SUCH BORROWER, THREATENED, ANY CLAIM OR LITIGATION AGAINST OR
AFFECTING SUCH BORROWER CONTESTING THE VALIDITY OF ANY OF ITS PATENTS,
TRADEMARKS OR COPYRIGHTS OR COMPUTER PROGRAM OR OTHER RIGHT.
(F)
ALL OTHER ACTIONS LEGALLY