WITH, OR ANY
OTHER ACTION BY, ANY GOVERNMENTAL
44
AUTHORITY, EXCEPT SUCH AS HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND
EFFECT AND EXCEPT FOR FILINGS NECESSARY TO PERFECT LIENS CREATED PURSUANT TO THE
LOAN DOCUMENTS, (B) WILL NOT VIOLATE ANY APPLICABLE LAW OR REGULATION OR THE
CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR ANY ORDER OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE OR
RESULT IN A DEFAULT UNDER ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING
UPON THE COMPANY OR ANY OF ITS SUBSIDIARIES OR ITS ASSETS, OR GIVE RISE TO A
RIGHT THEREUNDER TO REQUIRE ANY PAYMENT TO BE MADE BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES, AND (D) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN
ON ANY ASSET OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, OTHER THAN LIENS CREATED
UNDER THE LOAN DOCUMENTS.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
COMPANY HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET
AND STATEMENTS OF INCOME, STOCKHOLDERS EQUITY AND CASH FLOWS (I) AS OF AND FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2007 REPORTED ON BY ERNST & YOUNG LLP,
INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE FISCAL QUARTER AND
THE PORTION OF THE FISCAL YEAR ENDED MARCH 31, 2008, CERTIFIED BY ITS CHIEF
FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS
IN ACCORDANCE WITH GAAP, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS AND THE ABSENCE
OF FOOTNOTES IN THE CASE OF THE STATEMENTS REFERRED TO IN CLAUSE (II) ABOVE.
(B)
SINCE DECEMBER 31, 2007, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE
BUSINESS, ASSETS, OPERATIONS OR CONDITION, FINANCIAL OR OTHERWISE, OF THE
COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
SECTION 3.05.
PROPERTIES.
(A) EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS
GOOD TITLE TO, OR VALID LEASEHOLD INTERESTS IN, ALL ITS REAL AND PERSONAL
PROPERTY MATERIAL TO ITS BUSINESS, EXCEPT FOR LIENS PERMITTED PURSUANT TO
SECTION 6.02 OR MINOR DEFECTS IN TITLE THAT DO NOT INTERFERE WITH ITS ABILITY TO
CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED OR TO UTILIZE SUCH PROPERTIES FOR
THEIR INTENDED PURPOSES.
(B)
EACH OF THE COMPANY AND ITS SUBSIDIARIES OWNS, OR IS LICENSED TO USE, ALL
TRADEMARKS, TRADENAMES, COPYRIGHTS, PATENTS AND OTHER INTELLECTUAL PROPERTY
MATERIAL TO ITS BUSINESS, AND THE USE THEREOF BY THE COMPANY AND ITS
SUBSIDIARIES DOES NOT INFRINGE UPON THE RIGHTS OF ANY OTHER PERSON, EXCEPT FOR
ANY SUCH INFRINGEMENTS THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
SECTION 3.06.
LITIGATION AND ENVIRONMENTAL MATTERS.
(A) THERE ARE NO ACTIONS,
SUITS, PROCEEDINGS OR INVESTIGATIONS BY OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL
AUTHORITY PENDING AGAINST OR, TO THE KNOWLEDGE OF ANY BORROWER, THREATENED
AGAINST OR AFFECTING THE COMPANY OR ANY