BORROWER OR ANY
SUBSIDIARY (OTHER THAN ANY LIEN CREATED HEREUNDER OR UNDER THE SECURITY
DOCUMENTS).
SECTION 3.03.
ENFORCEABILITY.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED BY HOLDINGS AND THE BORROWER AND CONSTITUTES, AND EACH OTHER LOAN
DOCUMENT WHEN EXECUTED AND DELIVERED BY THE EACH LOAN PARTY THERETO WILL
CONSTITUTE, A LEGAL, VALID AND BINDING OBLIGATION OF SUCH LOAN PARTY ENFORCEABLE
AGAINST SUCH LOAN PARTY IN ACCORDANCE WITH ITS TERMS, SUBJECT TO THE EFFECTS OF
BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, MORATORIUM AND OTHER SIMILAR LAWS
RELATING TO OR AFFECTING CREDITORS' RIGHTS GENERALLY AND TO GENERAL EQUITABLE
PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW) AND AN
IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
SECTION 3.04.
GOVERNMENTAL APPROVALS.
NO ACTION, CONSENT OR APPROVAL OF,
REGISTRATION OR FILING WITH OR ANY OTHER ACTION BY ANY GOVERNMENTAL AUTHORITY IS
OR WILL BE REQUIRED IN CONNECTION WITH THE AMENDMENT TRANSACTIONS, EXCEPT FOR
SUCH AS HAVE BEEN MADE OR OBTAINED AND ARE IN FULL FORCE AND EFFECT, AND EXCEPT
WHERE THE FAILURE TO OBTAIN SUCH CONSENT OR APPROVAL TO MAKE SUCH REGISTRATION
OR FILING OR OTHER ACTION, IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
SECTION 3.05.
FINANCIAL STATEMENTS.
THE BORROWER HAS HERETOFORE FURNISHED TO
THE LENDERS ITS CONSOLIDATED BALANCE SHEETS AND STATEMENTS OF INCOME,
STOCKHOLDER'S EQUITY AND CASH FLOWS (I) AS OF AND FOR THE FISCAL YEAR ENDED
DECEMBER 31, 2002, AUDITED BY AND ACCOMPANIED BY THE OPINION OF DELOITTE &
TOUCHE LLP, INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE FISCAL
QUARTER AND THE PORTION OF THE FISCAL YEAR ENDED JUNE 30, 2003, CERTIFIED BY ITS
CHIEF FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY THE FINANCIAL
CONDITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE BORROWER AND ITS
CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS.
SUCH BALANCE
SHEETS AND THE NOTES THERETO DISCLOSE ALL MATERIAL LIABILITIES, DIRECT OR
CONTINGENT, OF THE BORROWER AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE DATES
THEREOF.
SUCH FINANCIAL STATEMENTS WERE PREPARED IN ACCORDANCE WITH GAAP
APPLIED ON A CONSISTENT BASIS.
50
SECTION 3.06.
NO MATERIAL ADVERSE CHANGE.
NO EVENT, CHANGE OR CONDITION HAS
OCCURRED THAT HAS HAD, OR COULD REASONABLY BE EXPECTED TO HAVE, A MATERIAL
ADVERSE EFFECT ON THE BUSINESS, ASSETS, OPERATIONS OR CONDITION, FINANCIAL OR
OTHERWISE, OF HOLDINGS, THE BORROWER AND THE SUBSIDIARIES, TAKEN AS A WHOLE,
SINCE DECEMBER 31, 2002.
SECTION 3.07.
TITLE TO PROPERTIES.
EACH OF HOLDINGS, THE BORROWER AND THE
SUBSIDIARIES HAS GOOD AND MARKETABLE TITLE TO, OR VALID LEASEHOLD INTERESTS IN,
ALL ITS MATERIAL PROPERTIES AND ASSETS NECESSARY FOR THE CONDUCT OF ITS
BUSINESS, EXCEPT FOR MINOR DEFECTS IN TITLE THAT DO NOT INTERFERE IN ANY
MATERIAL RESPECT WITH ITS ABILITY TO CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED
OR TO UTILIZE SUCH PROPERTIES AND ASSETS FOR THEIR INTENDED PURPOSES.
ALL SUCH
MATERIAL PROPERTIES AND ASSETS ARE FREE AND CLEAR OF LIENS, OTHER THAN LIENS
EXPRESSLY PERMITTED BY SECTION 6.02.
SECTION 3.08.
SUBSIDIARIES; DESIGNATED REAL ESTATE CREDIT