AFFECTING CREDITORS' RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF
EQUITY, REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 7.03
APPROVALS; NO CONFLICTS.
THE
TRANSACTIONS (A) DO NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR
FILING WITH, OR ANY OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER
THIRD PERSON (INCLUDING SHAREHOLDERS OR ANY CLASS OF DIRECTORS, WHETHER
INTERESTED OR DISINTERESTED, OF THE BORROWER OR ANY OTHER PERSON), NOR IS ANY
SUCH CONSENT, APPROVAL, REGISTRATION, FILING OR OTHER ACTION NECESSARY FOR THE
VALIDITY OR ENFORCEABILITY OF ANY LOAN DOCUMENT OR THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY, EXCEPT SUCH AS HAVE BEEN OBTAINED OR MADE AND
ARE IN FULL FORCE AND EFFECT OTHER THAN (I) THE RECORDING AND FILING OF THE
SECURITY INSTRUMENTS AS REQUIRED BY THIS AGREEMENT AND (II) THOSE THIRD PARTY
APPROVALS OR CONSENTS WHICH, IF NOT MADE OR OBTAINED, WOULD NOT CAUSE A DEFAULT
HEREUNDER, COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT OR
DO NOT HAVE AN ADVERSE EFFECT ON THE ENFORCEABILITY OF THE LOAN DOCUMENTS,
(B) WILL NOT VIOLATE ANY APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS OR
OTHER ORGANIZATIONAL DOCUMENTS OF THE BORROWER OR ANY SUBSIDIARY OR ANY ORDER OF
ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE OR RESULT IN A DEFAULT UNDER
ANY MATERIAL INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON THE BORROWER
OR ANY SUBSIDIARY OR ITS PROPERTIES, OR GIVE RISE TO A RIGHT THEREUNDER TO
REQUIRE ANY PAYMENT TO BE MADE BY THE BORROWER OR SUCH SUBSIDIARY AND (D) WILL
NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY PROPERTY OF THE
BORROWER OR ANY SUBSIDIARY (OTHER THAN THE LIENS CREATED BY THE LOAN DOCUMENTS).
SECTION 7.04
FINANCIAL CONDITION; NO MATERIAL
ADVERSE CHANGE.
(A)
THE BORROWER HAS HERETOFORE FURNISHED TO
THE LENDERS THE CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME,
STOCKHOLDERS EQUITY AND CASH FLOWS OF THE PARENT AS OF THE FISCAL YEAR ENDED
DECEMBER 31, 2009, CERTIFIED BY HEIN & ASSOCIATES, INDEPENDENT PUBLIC
ACCOUNTANTS.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE
PARENT, THE BORROWER AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE IN
ACCORDANCE WITH GAAP.
(B)
SINCE DECEMBER 31, 2009, (I) THERE HAS BEEN
NO EVENT, DEVELOPMENT OR CIRCUMSTANCE THAT HAS HAD OR COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT AND (II) THE BUSINESS OF THE BORROWER
AND ITS SUBSIDIARIES HAS BEEN CONDUCTED ONLY IN THE ORDINARY COURSE CONSISTENT
WITH PAST BUSINESS PRACTICES.
(C)
NEITHER THE BORROWER NOR ANY SUBSIDIARY HAS
ON THE DATE HEREOF ANY MATERIAL DEBT (INCLUDING DISQUALIFIED CAPITAL STOCK) OR
ANY CONTINGENT LIABILITIES, OFF-BALANCE
47
SHEET LIABILITIES OR PARTNERSHIPS, LIABILITIES FOR TAXES, UNUSUAL FORWARD OR
LONG-TERM COMMITMENTS OR UNREALIZED OR ANTICIPATED LOSSES FROM ANY UNFAVORABLE
COMMITMENTS, EXCEPT AS REFERRED TO OR REFLECTED OR PROVIDED FOR IN THE FINANCIAL
STATEMENTS.
SECTION 7.05
LITIGATION.
(A)
EXCEPT AS SET FORTH ON SCHEDULE 7.05, THERE
ARE NO ACTIONS, SUITS,