THE
CASE OF INTERIM STATEMENTS TO NORMAL YEAR-END ADJUSTMENTS AND TO ANY COMMENTS
AND NOTES ACCEPTABLE TO THE BANK IN ITS SOLE DISCRETION.
3.3.
NO MATERIAL ADVERSE CHANGE.
SINCE THE DATE OF THE MOST RECENT
FINANCIAL STATEMENTS (AS HEREINAFTER DEFINED), THE BORROWER AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, HAVE NOT SUFFERED ANY DAMAGE, DESTRUCTION OR
LOSS, AND NO EVENT OR CONDITION HAS OCCURRED OR EXISTS, WHICH HAS RESULTED OR IS
REASONABLY LIKELY TO RESULT IN A MATERIAL ADVERSE CHANGE IN ITS BUSINESS,
ASSETS, OPERATIONS, CONDITION (FINANCIAL OR OTHERWISE) OR RESULTS OF OPERATION.
3.4.
BINDING OBLIGATIONS.
EACH OF THE LOAN PARTIES HAS FULL POWER AND
AUTHORITY TO ENTER INTO THE TRANSACTIONS PROVIDED FOR IN THIS AGREEMENT AND HAS
BEEN DULY AUTHORIZED TO DO SO BY APPROPRIATE ACTION OF ITS BOARD OF DIRECTORS;
AND THE LOAN DOCUMENTS, WHEN EXECUTED AND DELIVERED BY THE LOAN PARTIES PARTY
THERETO, WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE LOAN
PARTIES PARTY THERETO ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
3
3.5.
NO DEFAULTS OR VIOLATIONS.
THERE DOES NOT EXIST ANY EVENT OF
DEFAULT UNDER THIS AGREEMENT OR ANY MATERIAL DEFAULT OR VIOLATION BY ANY LOAN
PARTY OF OR UNDER ANY OF THE TERMS, CONDITIONS OR OBLIGATIONS OF: (I) ITS
ARTICLES OR CERTIFICATE OF INCORPORATION, REGULATIONS OR BYLAWS IF SUCH LOAN
PARTY IS A CORPORATION OR ITS OTHER ORGANIZATIONAL DOCUMENTS AS APPLICABLE;
(II) ANY INDENTURE, MORTGAGE, DEED OF TRUST, FRANCHISE, PERMIT, CONTRACT,
AGREEMENT, OR OTHER INSTRUMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS BOUND;
OR (III) ANY LAW, ORDINANCE, REGULATION, RULING, ORDER, INJUNCTION, DECREE,
CONDITION OR OTHER REQUIREMENT APPLICABLE TO OR IMPOSED UPON IT BY ANY LAW, THE
ACTION OF ANY COURT OR ANY GOVERNMENTAL AUTHORITY OR AGENCY; AND THE
CONSUMMATION OF THIS AGREEMENT AND THE TRANSACTIONS SET FORTH HEREIN WILL NOT
RESULT IN ANY SUCH DEFAULT OR VIOLATION OR EVENT OF DEFAULT.
3.6.
TITLE TO ASSETS.
AS OF THE DATE HEREOF, THE LOAN PARTIES HAVE GOOD
AND MARKETABLE TITLE TO THE ASSETS REFLECTED ON THE HISTORICAL FINANCIAL
STATEMENTS, FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES, EXCEPT FOR (I) CURRENT
TAXES AND ASSESSMENTS NOT YET DUE AND PAYABLE, (II) ASSETS DISPOSED OF BY THE
LOAN PARTIES IN THE ORDINARY COURSE OF BUSINESS SINCE THE DATE OF THE MOST
RECENT FINANCIAL STATEMENTS, (III) THOSE LIENS OR ENCUMBRANCES, IF ANY,
SPECIFIED ON THE ADDENDUM, AND (IV) PERMITTED LIENS (AS DEFINED BELOW).
3.7.
LITIGATION.
AS OF THE DATE HEREOF, THERE ARE NO ACTIONS, SUITS,
PROCEEDINGS OR GOVERNMENTAL INVESTIGATIONS PENDING OR, TO THE KNOWLEDGE OF THE
BORROWER, THREATENED AGAINST ANY LOAN PARTY, WHICH IS REASONABLY LIKELY TO
RESULT IN A MATERIAL ADVERSE CHANGE IN THE BUSINESS, ASSETS, OPERATIONS,
CONDITION (FINANCIAL OR OTHERWISE) OR RESULTS OF OPERATIONS OF THE LOAN PARTIES
WHEN TAKEN AS A WHOLE, AND THERE IS NO BASIS KNOWN TO THE BORROWER FOR ANY
ACTION, SUIT, PROCEEDING OR INVESTIGATION WHICH COULD RESULT IN SUCH A MATERIAL
ADVERSE CHANGE.
ALL PENDING AND THREATENED LITIGATION AGAINST ANY LOAN PARTY IN
WHICH GREATER