THE CLOSING DATE, THE APPLICATION OF THE PROCEEDS OF SUCH LOANS AS PROVIDED
HEREIN AND THE PAYMENT OF ALL ESTIMATED LEGAL, UNDERWRITING, INVESTMENT BANKING,
ACCOUNTING AND OTHER FEES RELATED HERETO AND THERETO, THE BORROWER AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, WILL BE SOLVENT AS OF AND ON THE CLOSING DATE.
3.21
LABOR MATTERS.
THERE ARE NO STRIKES OR OTHER LABOR DISPUTES
AGAINST THE BORROWER OR ANY SUBSIDIARY PENDING, OR TO THE BORROWER'S KNOWLEDGE,
THREATENED AGAINST IT OR ANY SUBSIDIARY, IN EACH CASE WHICH COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
3.22
CONDEMNATION.
NO TAKING OF ANY OF THE PROPERTIES OR ANY PART
THEREOF THROUGH EMINENT DOMAIN, CONVEYANCE IN LIEU THEREOF, CONDEMNATION OR
SIMILAR PROCEEDING IS PENDING OR, TO THE KNOWLEDGE OF THE BORROWER, THREATENED
BY ANY GOVERNMENTAL AUTHORITY (A) ON THE CLOSING DATE OR (B) AFTER THE CLOSING
DATE WITH RESPECT TO REAL PROPERTY HAVING AN AGGREGATE VALUE IN EXCESS OF
$100,000.
3.23
ABSENCE OF FINANCING STATEMENTS.
EXCEPT WITH RESPECT TO LIENS
PERMITTED BY SECTION 6.3, THERE IS NO FINANCING STATEMENT, SECURITY AGREEMENT,
CHATTEL MORTGAGE, REAL ESTATE MORTGAGE OR OTHER DOCUMENT FILED OR RECORDED WITH
ANY FILING RECORDS, REGISTRY OR OTHER PUBLIC OFFICE THAT PURPORTS TO COVER,
AFFECT OR GIVE NOTICE OF ANY PRESENT OR POSSIBLE FUTURE LIEN ON ANY ASSETS OR
PROPERTY OF THE BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY RIGHTS RELATING
THERETO.
3.24
PERFECTION OF SECURITY INTEREST.
ALL FILINGS, ASSIGNMENTS, PLEDGES
AND DEPOSITS OF DOCUMENTS OR INSTRUMENTS HAVE BEEN MADE OR ARE BEING MADE
CONCURRENTLY HEREWITH AND ALL OTHER ACTIONS HAVE BEEN TAKEN THAT ARE NECESSARY,
UNDER APPLICABLE LAW, TO ESTABLISH AND PERFECT THE AGENT'S SECURITY INTEREST IN
THE COLLATERAL AND THE GUARANTOR COLLATERAL.
SUBJECT TO SECTION 6.3 HEREOF, THE
COLLATERAL AND THE GUARANTOR COLLATERAL AND THE AGENT'S RIGHTS WITH RESPECT TO
THE COLLATERAL AND THE GUARANTOR COLLATERAL ARE NOT SUBJECT TO ANY SETOFF,
CLAIMS, WITHHOLDINGS OR OTHER DEFENSES.
EACH GRANTOR, RESPECTIVELY, UNDER THE
SECURITY AGREEMENT, THE GUARANTOR SECURITY AGREEMENT AND THE PLEDGE AGREEMENT IS
THE OWNER OF THE COLLATERAL OR THE GUARANTOR COLLATERAL, AS APPLICABLE, FREE
FROM ANY LIEN, EXCEPT FOR LIENS PERMITTED BY SECTION 6.3.
40
SECTION 4.
CONDITIONS PRECEDENT
4.1
CONDITIONS TO CLOSING DATE.
THE AGREEMENT OF EACH LENDER TO MAKE
THE LOANS REQUESTED TO BE MADE BY IT ON THE CLOSING DATE AND TO PARTICIPATE IN
ANY LETTERS OF CREDIT TO BE ISSUED ON THE CLOSING DATE AND THE AGREEMENT OF THE
AGENT TO ISSUE ANY LETTERS OF CREDIT REQUESTED TO BE ISSUED ON THE CLOSING DATE,
IN EACH CASE IN ACCORDANCE WITH THE TERMS HEREOF, IS SUBJECT TO THE
SATISFACTION, IN EACH CASE IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE
AGENT, IMMEDIATELY PRIOR TO OR CONCURRENTLY WITH THE MAKING OF SUCH LOANS AND/OR
THE ISSUANCE OF AND PARTICIPATION IN SUCH LETTERS OF CREDIT ON THE CLOSING DATE,
OF THE FOLLOWING CONDITIONS PRECEDENT:
(A)
CREDIT AGREEMENT.
THE AGENT SHALL HAVE RECEIVED THIS AGREEMENT,
EXECUTED AND DELIVERED BY AN OFFICER OF THE BORROWER, EACH LENDER AND THE