WHICH IT IS OR IS TO BE A PARTY, OR FOR THE CONSUMMATION OF THE
TRANSACTION (EXCEPT FOR THE FILING OF A CERTIFICATE OF MERGER IN CONNECTION WITH
THE MERGER), (II) THE GRANT BY ANY LOAN PARTY OF THE LIENS GRANTED BY IT
PURSUANT TO THE COLLATERAL DOCUMENTS, (III) THE PERFECTION OR MAINTENANCE OF THE
LIENS CREATED UNDER THE COLLATERAL DOCUMENTS (INCLUDING THE FIRST PRIORITY
NATURE THEREOF (SUBJECT TO LIENS PERMITTED UNDER ANY LOAN DOCUMENT)) OR (IV) THE
EXERCISE BY ANY AGENT OR ANY LENDER OF ITS RIGHTS UNDER THE LOAN DOCUMENTS OR
THE REMEDIES IN RESPECT OF THE COLLATERAL PURSUANT TO THE COLLATERAL DOCUMENTS,
EXCEPT FOR THE AUTHORIZATIONS, APPROVALS, ACTIONS, NOTICES AND FILINGS WHICH
HAVE BEEN DULY OBTAINED, TAKEN, GIVEN OR MADE ON OR PRIOR TO THE DATE HEREOF AND
ARE IN FULL FORCE AND EFFECT OR WILL BE MADE TO PERFECT A SECURITY INTEREST AS
CONTEMPLATED BY SECTION 3.01(B)(I) AND SECTION 5.01(J).
ALL APPLICABLE WAITING
PERIODS IN CONNECTION WITH THE TRANSACTION HAVE EXPIRED WITHOUT ANY ACTION
HAVING BEEN TAKEN BY ANY COMPETENT AUTHORITY RESTRAINING, PREVENTING OR IMPOSING
MATERIALLY ADVERSE CONDITIONS UPON THE TRANSACTION OR THE RIGHTS OF THE LOAN
PARTIES OR THEIR SUBSIDIARIES FREELY TO TRANSFER OR OTHERWISE DISPOSE OF, OR TO
CREATE ANY LIEN ON, ANY PROPERTIES NOW OWNED OR HEREAFTER ACQUIRED BY ANY OF
THEM.
(E)
ENFORCEABLE OBLIGATIONS.
THIS AGREEMENT
HAS BEEN, AND EACH OTHER TRANSACTION DOCUMENT WHEN DELIVERED HEREUNDER WILL HAVE
BEEN, DULY EXECUTED AND DELIVERED BY EACH LOAN PARTY PARTY THERETO.
THIS
AGREEMENT IS, AND EACH OTHER TRANSACTION DOCUMENT WHEN DELIVERED HEREUNDER WILL
BE, THE LEGAL, VALID AND BINDING OBLIGATION OF EACH LOAN PARTY PARTY THERETO,
ENFORCEABLE AGAINST SUCH LOAN PARTY IN ACCORDANCE WITH ITS TERMS.
(F)
LITIGATION.
OTHER THAN THE MATTERS
DESCRIBED ON SCHEDULE 4.01(F) HERETO (THE "DISCLOSED LITIGATION"), THERE IS NO
ACTION, SUIT, INVESTIGATION, LITIGATION OR PROCEEDING AFFECTING ANY LOAN PARTY
OR ANY OF ITS SUBSIDIARIES, INCLUDING ANY ENVIRONMENTAL ACTION, PENDING OR TO
THE KNOWLEDGE OF BMCA, THREATENED BEFORE ANY GOVERNMENTAL AUTHORITY OR
ARBITRATOR THAT (I) COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT (OTHER THAN THE DISCLOSED LITIGATION), (II) AS OF THE CLOSING DATE
PURPORTS TO AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY TRANSACTION
DOCUMENT OR THE CONSUMMATION OF THE TRANSACTION OR (III) COULD REASONABLY BE
LIKELY TO MATERIALLY AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY LOAN
DOCUMENT, AND SINCE DECEMBER 31, 2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE
IN THE STATUS, OR FINANCIAL EFFECT ON ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES,
OF THE DISCLOSED LITIGATION FROM THAT DESCRIBED ON SCHEDULE 4.01(F) HERETO.
56
(G)
FINANCIAL STATEMENTS.
(I) (A) THE
CONSOLIDATED BALANCE SHEET OF BMCA AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2006,
AND THE RELATED CONSOLIDATED STATEMENT OF INCOME AND CONSOLIDATED STATEMENT OF
CASH FLOWS OF BMCA AND ITS SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED,
ACCOMPANIED BY AN UNQUALIFIED OPINION OF ERNST & YOUNG LLP, INDEPENDENT PUBLIC
ACCOUNTANTS, COPIES OF WHICH HAVE BEEN FURNISHED TO EACH LENDER, FAIRLY PRESENT
THE CONSOLIDATED