OR OTHER PERSON NECESSARY FOR THE EXECUTION, DELIVERY AND PERFORMANCE
BY THE BORROWER AND EACH SUBSIDIARY OF, AND THE INCURRENCE AND PERFORMANCE OF
EACH OF ITS OBLIGATIONS UNDER, EACH OF THE CREDIT DOCUMENTS TO WHICH IT IS A
PARTY, AND THE EXERCISE BY THE LENDER OF ITS REMEDIES UNDER EACH OF THE CREDIT
DOCUMENTS, HAVE BEEN EFFECTED OR OBTAINED AND ARE IN FULL FORCE AND EFFECT
(EXCEPT FOR ANY NOTICES TO ANY BANKING REGULATOR REQUIRED FOR THE EXERCISE BY
THE LENDER OF ITS RIGHTS AND REMEDIES UNDER THE SECURITY DOCUMENTS).
(E)
BINDING OBLIGATION.
EACH OF THE CREDIT DOCUMENTS CONSTITUTES THE
VALID AND LEGALLY BINDING OBLIGATION OF THE BORROWER AND ANY SUBSIDIARY PARTY
THERETO, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT AS TO ENFORCEMENT TO
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM AND SIMILAR LAWS OF GENERAL
APPLICABILITY RELATING TO OR AFFECTING CREDITORS' RIGHTS AND TO GENERAL EQUITY
PRINCIPLES.
(F)
LITIGATION; LABOR CONTROVERSIES.
EXCEPT AS DESCRIBED IN SCHEDULE
5.01(F), THERE ARE NO PROCEEDINGS OR INVESTIGATIONS NOW PENDING OR, TO THE
KNOWLEDGE OF THE BORROWER, THREATENED BEFORE ANY COURT OR ARBITRATOR OR BEFORE
OR BY ANY GOVERNMENTAL AUTHORITY WHICH, INDIVIDUALLY OR IN THE AGGREGATE, IF
DETERMINED ADVERSELY TO THE INTERESTS OF THE BORROWER OR ANY SUBSIDIARY, COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
EXCEPT AS SET FORTH
ON SCHEDULE 5.01(F), THERE ARE NO LABOR CONTROVERSIES PENDING OR, TO THE BEST
KNOWLEDGE OF THE BORROWER, THREATENED AGAINST THE BORROWER OR ANY SUBSIDIARY
WHICH COULD REASONABLY BE EXPECTED, INDIVIDUALLY OR IN THE AGGREGATE, TO HAVE A
MATERIAL ADVERSE EFFECT.
There is no law, regulation, rule, order or judgment, and no provision of any
material agreement or instrument binding upon the Borrower or any Subsidiary, or
affecting their properties, and no provision of the certificate of
incorporation, charter or by-laws (or similar constitutive instruments) of the
Borrower or any Subsidiary, that would prohibit, conflict with or in any way
impair the execution or delivery of, or the incurrence or performance of any
obligations of the Borrower or any Subsidiary under, any Credit Document, or
result in or require the creation or imposition of any Lien on property of the
Borrower or any Subsidiary as a consequence of the execution, delivery and
performance of any Credit Document.
(G)
FINANCIAL CONDITION.
(I)
THE CONSOLIDATED BALANCE SHEET OF THE
BORROWER AS OF DECEMBER 31, 2004, TOGETHER WITH CONSOLIDATED STATEMENTS OF
INCOME, RETAINED EARNINGS AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED,
REPORTED UPON BY BDO SEIDMAN LLP, AND THE CONSOLIDATED BALANCE SHEET OF THE
BORROWER AS OF SEPTEMBER 30, 2004, TOGETHER WITH STATEMENTS OF INCOME AND CASH
FLOWS FOR THE 9 MONTHS THEN ENDED, EACH ATTACHED HERETO AS SCHEDULE 5.01(G)(I),
FAIRLY PRESENT THE CONSOLIDATED FINANCIAL CONDITION AND CONSOLIDATED RESULTS OF
OPERATIONS OF THE BORROWER AS OF
20
THE DATES AND FOR THE PERIODS REFERRED TO AND HAVE BEEN PREPARED IN ACCORDANCE
WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIOD INVOLVED.
THERE ARE NO
KNOWN MATERIAL LIABILITIES (WHETHER DIRECT OR INDIRECT, FIXED OR CONTINGENT, AND
OF ANY NATURE