BE HELD BY THE
LENDERS (INCLUDING FOR SUCH PURPOSES THE INCREASING LENDERS AND THE ASSUMING
LENDERS) RATABLY IN ACCORDANCE WITH THEIR RESPECTIVE APPLICABLE PERCENTAGE AFTER
GIVING EFFECT TO SUCH COMMITMENT INCREASE.
ON AND AFTER EACH INCREASE DATE, THE
APPLICABLE PERCENTAGE OF EACH LENDER'S PARTICIPATION IN LOANS SHALL BE
CALCULATED AFTER GIVING EFFECT TO EACH SUCH COMMITMENT INCREASE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to the Administrative Agent and the Lenders
that:
SECTION 3.01
ORGANIZATION; POWERS.
EACH OBLIGOR IS A COMPANY DULY
ORGANIZED OR FORMED AND VALIDLY EXISTING UNDER THE LAWS OF ITS JURISDICTION OF
ORGANIZATION OR FORMATION.
EACH OBLIGOR HAS ALL CORPORATE POWERS AND ALL
GOVERNMENTAL LICENSES, AUTHORIZATIONS, CONSENTS AND APPROVALS REQUIRED TO CARRY
ON ITS BUSINESS AS NOW CONDUCTED, EXCEPT TO THE EXTENT THAT FAILURE TO HAVE ANY
SUCH POWER OR GOVERNMENTAL LICENSE, AUTHORIZATION, CONSENT OR APPROVAL COULD
NOT, BASED UPON THE FACTS AND CIRCUMSTANCES IN EXISTENCE AT THE TIME THIS
REPRESENTATION AND WARRANTY IS MADE OR DEEMED MADE, REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
SECTION 3.02
AUTHORIZATION; ENFORCEABILITY.
THE TRANSACTIONS ARE WITHIN
SUCH OBLIGOR'S CORPORATE POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE AND, IF REQUIRED, STOCKHOLDER ACTION.
THIS AGREEMENT AND EACH OTHER
LOAN DOCUMENT TO WHICH SUCH OBLIGOR IS A PARTY HAS BEEN DULY EXECUTED AND
DELIVERED BY SUCH OBLIGOR AND CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION
OF SUCH OBLIGOR, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING
CREDITORS'
25
RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF
WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 3.03
GOVERNMENTAL 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, EXCEPT SUCH AS HAVE BEEN
OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT, (B) WILL NOT VIOLATE,
CONTRAVENE, OR CONSTITUTE A DEFAULT UNDER ANY PROVISION OF (I) ANY APPLICABLE
LAW OR REGULATION, (II) THE CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS
OF SUCH OBLIGOR, (III) ANY ORDER, JUDGMENT, DECREE OR INJUNCTION OF ANY
GOVERNMENTAL AUTHORITY, (IV) ANY AGREEMENT OR INSTRUMENT EVIDENCING OR GOVERNING
DEBT OF SUCH OBLIGOR, EXCEPT FOR ANY CONTRAVENTION OR DEFAULT UNDER ANY SUCH
AGREEMENT OR INSTRUMENT EVIDENCING OR GOVERNING SUCH DEBT IN AN AGGREGATE
PRINCIPAL AMOUNT, INDIVIDUALLY OR IN THE AGGREGATE FOR ALL SUCH AGREEMENTS OR
INSTRUMENTS IN RESPECT OF WHICH THERE IS A CONTRAVENTION OR DEFAULT, NOT IN
EXCESS OF $25,000,000 OR (V) ANY OTHER MATERIAL AGREEMENT OR INSTRUMENT BINDING
UPON SUCH OBLIGOR OR ITS ASSETS.
SECTION 3.04
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE GUARANTOR HAS HERETOFORE FURNISHED TO THE ADMINISTRATIVE AGENT
(I) ITS CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME, SHAREHOLDERS EQUITY
AND CASH FLOWS AS OF AND FOR THE FISCAL YEAR ENDED SEPTEMBER 28, 2007, REPORTED
ON BY DELOITTE & TOUCHE LLP, INDEPENDENT PUBLIC ACCOUNTANTS AND ITS
(II) CONSOLIDATED BALANCE SHEET AND STATEMENTS OF INCOME FOR THE QUARTERS