OF ITS PROPERTIES AND THE
CONDUCT OF ITS BUSINESS AS NOW CONDUCTED AND AS PROPOSED TO BE CONDUCTED AND IS
QUALIFIED TO DO BUSINESS AND (TO THE EXTENT THE CONCEPT IS APPLICABLE IN SUCH
JURISDICTION) IS IN GOOD STANDING, IN EVERY JURISDICTION WHERE THE NATURE OF THE
BUSINESS CONDUCTED BY IT MAKES SUCH QUALIFICATION NECESSARY AND WHERE THE
FAILURE TO SO QUALIFY COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
SECTION 3.02.
AUTHORIZATION; ENFORCEABILITY.
THE TRANSACTIONS TO BE EFFECTED
BY EACH LOAN PARTY ARE WITHIN SUCH LOAN PARTY'S CORPORATE OR OTHER
ORGANIZATIONAL POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE
OR OTHER ORGANIZATIONAL AND, IF REQUIRED, STOCKHOLDER OR OTHER EQUITYHOLDER
ACTION.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE BORROWER AND
CONSTITUTES, AND EACH OTHER LOAN DOCUMENT TO WHICH ANY LOAN PARTY IS TO BE A
PARTY, WHEN EXECUTED AND DELIVERED BY SUCH LOAN PARTY, WILL CONSTITUTE, A LEGAL,
VALID AND BINDING OBLIGATION OF THE BORROWER OR SUCH LOAN PARTY, AS THE CASE MAY
BE, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM AND OTHER LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 3.03.
GOVERNMENTAL APPROVALS; ABSENCE OF CONFLICTS.
THE TRANSACTIONS
(A) DO NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH OR
ANY OTHER ACTION BY ANY GOVERNMENTAL AUTHORITY, EXCEPT (I) SUCH AS HAVE BEEN OR
ON THE EFFECTIVE DATE WILL BE OBTAINED OR MADE AND ARE (OR WILL ON THE EFFECTIVE
DATE BE) IN FULL FORCE AND EFFECT AND (II) FILINGS NECESSARY TO PERFECT LIENS
CREATED UNDER THE LOAN DOCUMENTS, (B) WILL NOT VIOLATE ANY APPLICABLE LAW,
INCLUDING ANY ORDER OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE THE
CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF THE BORROWER, ANY LOAN
PARTY OR ANY MATERIAL SUBSIDIARY, (D) WILL NOT
57
VIOLATE OR RESULT (ALONE OR WITH NOTICE OR LAPSE OF TIME, OR BOTH) IN A DEFAULT
UNDER ANY INDENTURE OR OTHER AGREEMENT OR INSTRUMENT BINDING UPON THE BORROWER,
ANY LOAN PARTY OR ANY MATERIAL SUBSIDIARY OR ANY OF THEIR ASSETS, OR GIVE RISE
TO A RIGHT THEREUNDER TO REQUIRE ANY PAYMENT, REPURCHASE OR REDEMPTION TO BE
MADE BY THE BORROWER, ANY LOAN PARTY OR ANY MATERIAL SUBSIDIARY, OR GIVE RISE TO
A RIGHT OF, OR RESULT IN, ANY TERMINATION, CANCELLATION, ACCELERATION OR RIGHT
OF RENEGOTIATION OF ANY OBLIGATION THEREUNDER, AND (E) EXCEPT FOR LIENS CREATED
UNDER THE LOAN DOCUMENTS, WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY
LIEN ON ANY ASSET OF THE BORROWER, ANY LOAN PARTY OR ANY MATERIAL SUBSIDIARY.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEETS
AND STATEMENTS OF OPERATIONS, STOCKHOLDERS' EQUITY AND CASH FLOWS (I) AS OF AND
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2006 AND 2007, AUDITED BY AND
ACCOMPANIED BY THE OPINION OF PRICEWATERHOUSECOOPERS LLP,