GRANTED BY IT PURSUANT TO THE COLLATERAL DOCUMENTS, (III) THE
PERFECTION OR MAINTENANCE OF THE LIENS CREATED UNDER THE COLLATERAL DOCUMENTS
(INCLUDING THE FIRST PRIORITY NATURE THEREOF (SUBJECT TO LIENS PERMITTED UNDER
ANY LOAN DOCUMENT)) OR (IV) THE EXERCISE BY ANY AGENT OR ANY LENDER OF ITS
RIGHTS UNDER THE LOAN DOCUMENTS OR THE REMEDIES IN RESPECT OF THE COLLATERAL
PURSUANT TO THE COLLATERAL DOCUMENTS, EXCEPT FOR THE AUTHORIZATIONS, APPROVALS,
ACTIONS, NOTICES AND FILINGS WHICH HAVE BEEN DULY OBTAINED, TAKEN, GIVEN OR MADE
ON OR PRIOR TO THE DATE HEREOF AND ARE IN FULL FORCE AND EFFECT OR WILL BE MADE
TO PERFECT A SECURITY INTEREST AS CONTEMPLATED BY SECTIONS 3.01(A)(IV) AND
5.01(J). ALL APPLICABLE WAITING PERIODS IN CONNECTION WITH THE TRANSACTION HAVE
EXPIRED WITHOUT ANY ACTION HAVING BEEN TAKEN BY ANY COMPETENT AUTHORITY
RESTRAINING, PREVENTING OR IMPOSING MATERIALLY ADVERSE CONDITIONS UPON THE
TRANSACTION OR THE RIGHTS OF THE LOAN PARTIES OR THEIR SUBSIDIARIES FREELY TO
TRANSFER OR OTHERWISE DISPOSE OF, OR TO CREATE ANY LIEN ON, ANY PROPERTIES NOW
OWNED OR HEREAFTER ACQUIRED BY ANY OF THEM.
(E)
ENFORCEABLE OBLIGATIONS. THIS AGREEMENT HAS BEEN, AND EACH OTHER
TRANSACTION DOCUMENT WHEN DELIVERED HEREUNDER WILL HAVE BEEN, DULY EXECUTED AND
DELIVERED BY EACH LOAN PARTY PARTY THERETO. THIS AGREEMENT IS, AND EACH OTHER
TRANSACTION DOCUMENT WHEN DELIVERED HEREUNDER WILL BE, THE LEGAL, VALID AND
BINDING OBLIGATION OF EACH LOAN PARTY PARTY THERETO, ENFORCEABLE AGAINST SUCH
LOAN PARTY IN ACCORDANCE WITH ITS TERMS.
(F)
LITIGATION. OTHER THAN THE MATTERS DESCRIBED ON SCHEDULE 4.01(F)
HERETO (THE "DISCLOSED LITIGATION"), THERE IS NO ACTION, SUIT, INVESTIGATION,
LITIGATION OR PROCEEDING AFFECTING ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES,
INCLUDING ANY ENVIRONMENTAL ACTION, PENDING OR TO THE KNOWLEDGE OF BMCA,
THREATENED BEFORE ANY GOVERNMENTAL AUTHORITY OR ARBITRATOR THAT (I) COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT (OTHER THAN THE
DISCLOSED LITIGATION), (II) AS OF THE CLOSING DATE PURPORTS TO AFFECT THE
LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY TRANSACTION DOCUMENT OR THE
CONSUMMATION OF THE TRANSACTION OR (III) COULD REASONABLY BE LIKELY TO
MATERIALLY AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY LOAN DOCUMENT,
AND SINCE DECEMBER 31, 2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE
STATUS, OR FINANCIAL EFFECT ON ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, OF THE
DISCLOSED LITIGATION FROM THAT DESCRIBED ON SCHEDULE 4.01(F) HERETO.
49
(G)
FINANCIAL STATEMENTS. (I) (A) THE CONSOLIDATED BALANCE SHEET OF
BMCA AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2006, AND THE RELATED CONSOLIDATED
STATEMENT OF INCOME AND CONSOLIDATED STATEMENT OF CASH FLOWS OF BMCA AND ITS
SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED, ACCOMPANIED BY AN UNQUALIFIED
OPINION OF ERNST & YOUNG LLP, INDEPENDENT PUBLIC ACCOUNTANTS, COPIES OF WHICH
HAVE BEEN FURNISHED TO EACH LENDER, FAIRLY PRESENT THE CONSOLIDATED FINANCIAL
CONDITION OF BMCA AND ITS SUBSIDIARIES AS AT SUCH DATE AND THE CONSOLIDATED
RESULTS OF OPERATIONS OF BMCA AND ITS SUBSIDIARIES FOR THE PERIOD ENDED ON SUCH
DATE, ALL IN ACCORDANCE WITH GAAP, AND (B) SINCE DECEMBER 31, 2006, THERE