(C) WILL NOT VIOLATE OR RESULT IN A DEFAULT UNDER ANY
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INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON THE BORROWER OR ANY
SUBSIDIARY OR ITS PROPERTIES, OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE ANY
PAYMENT TO BE MADE BY THE BORROWER OR SUCH SUBSIDIARY AND (D) WILL NOT RESULT IN
THE CREATION OR IMPOSITION OF ANY LIEN ON ANY PROPERTY OF THE BORROWER OR ANY
SUBSIDIARY (OTHER THAN THE LIENS CREATED BY THE LOAN DOCUMENTS).
SECTION 7.04
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS ITS
CONSOLIDATED BALANCE SHEET AND STATEMENTS OF OPERATIONS, STOCKHOLDERS' EQUITY
AND COMPREHENSIVE INCOME (LOSS), AND CASH FLOWS AS OF AND FOR THE FISCAL YEAR
ENDED DECEMBER 31, 2008, REPORTED ON BY KPMG LLP, INDEPENDENT PUBLIC
ACCOUNTANTS.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE
BORROWER AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE AND FOR SUCH PERIOD
IN ACCORDANCE WITH GAAP, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS AND THE ABSENCE
OF FOOTNOTES IN THE CASE OF THE UNAUDITED QUARTERLY FINANCIAL STATEMENTS.
(B)
SINCE DECEMBER 31, 2008, (I) THERE HAS BEEN NO EVENT, DEVELOPMENT
OR CIRCUMSTANCE THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT AND (II) THE BUSINESS OF THE BORROWER AND ITS SUBSIDIARIES HAS
BEEN CONDUCTED ONLY IN THE ORDINARY COURSE CONSISTENT WITH PAST BUSINESS
PRACTICES.
(C)
NEITHER THE BORROWER NOR ANY SUBSIDIARY HAS ON THE DATE HEREOF ANY
MATERIAL DEBT (INCLUDING DISQUALIFIED CAPITAL STOCK) OR ANY CONTINGENT
LIABILITIES, OFF-BALANCE SHEET LIABILITIES OR PARTNERSHIPS, LIABILITIES FOR
TAXES, UNUSUAL FORWARD OR LONG-TERM COMMITMENTS OR UNREALIZED OR ANTICIPATED
LOSSES FROM ANY UNFAVORABLE COMMITMENTS, EXCEPT AS REFERRED TO OR REFLECTED OR
PROVIDED FOR IN THE FINANCIAL STATEMENTS.
SECTION 7.05
LITIGATION.
(A)
EXCEPT AS SET FORTH ON SCHEDULE 7.05, THERE ARE NO ACTIONS, SUITS,
INVESTIGATIONS OR PROCEEDINGS BY OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL
AUTHORITY PENDING AGAINST OR, TO THE KNOWLEDGE OF THE BORROWER, THREATENED
AGAINST OR AFFECTING THE BORROWER OR ANY SUBSIDIARY (I) NOT FULLY COVERED BY
INSURANCE (EXCEPT FOR NORMAL DEDUCTIBLES) AS TO WHICH THERE IS A REASONABLE
POSSIBILITY OF AN ADVERSE DETERMINATION THAT, IF ADVERSELY DETERMINED, COULD
REASONABLY BE EXPECTED, INDIVIDUALLY OR IN THE AGGREGATE, TO RESULT IN A
MATERIAL ADVERSE EFFECT, OR (II) THAT INVOLVE ANY LOAN DOCUMENT OR THE
TRANSACTIONS.
(B)
SINCE THE DATE OF THIS AGREEMENT, THERE HAS BEEN NO CHANGE IN THE
STATUS OF THE MATTERS DISCLOSED IN SCHEDULE 7.05 THAT, INDIVIDUALLY OR IN THE
AGGREGATE, HAS RESULTED IN, OR MATERIALLY INCREASED THE LIKELIHOOD OF, A
MATERIAL ADVERSE EFFECT.
SECTION 7.06
ENVIRONMENTAL MATTERS.
EXCEPT FOR SUCH MATTERS AS SET
FORTH ON SCHEDULE 7.06 OR THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT:
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(A)
THE BORROWER AND THE SUBSIDIARIES AND EACH OF THEIR RESPECTIVE
PROPERTIES AND OPERATIONS THEREON ARE, AND WITHIN ALL APPLICABLE STATUTE OF
LIMITATION PERIODS HAVE BEEN, IN COMPLIANCE WITH ALL