Section 3.09
Agreements.
(a)
No Company is a party to any agreement,
instrument or other document or subject to any corporate or other constitutional
restriction, or any restriction under its
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Organizational Documents, that has resulted, or could reasonably be expected to
result, in a Material Adverse Effect.
(B)
NO COMPANY IS IN DEFAULT IN ANY MANNER UNDER ANY PROVISION OF ANY
INDENTURE OR OTHER DOCUMENT, AGREEMENT OR INSTRUMENT EVIDENCING INDEBTEDNESS OR
CONTINGENT OBLIGATION, OR ANY OTHER DOCUMENT, AGREEMENT OR INSTRUMENT TO WHICH
IT IS A PARTY OR BY WHICH IT OR ANY OF ITS PROPERTY IS OR MAY BE BOUND OR
SUBJECT, WHERE SUCH DEFAULT HAS RESULTED, OR COULD REASONABLY BE EXPECTED TO
RESULT, IN A MATERIAL ADVERSE EFFECT, AND NO CONDITION EXISTS WHICH, WITH THE
GIVING OF NOTICE OR THE LAPSE OF TIME OR BOTH COULD REASONABLY BE EXPECTED TO
CONSTITUTE SUCH A DEFAULT.
(C)
SCHEDULE 3.09(C) ACCURATELY AND COMPLETELY LISTS ALL MATERIAL
AGREEMENTS (OTHER THAN LEASES OF REAL PROPERTY SET FORTH ON SCHEDULE 3.05(B)) TO
WHICH ANY COMPANY IS A PARTY WHICH ARE IN EFFECT ON THE CLOSING DATE IN
CONNECTION WITH THE OPERATION OF THE BUSINESS CONDUCTED THEREBY AND BORROWER HAS
DELIVERED, OR WILL DELIVER PRIOR TO THE CLOSING DATE, COPIES OF SUCH MATERIAL
AGREEMENTS TO THE ADMINISTRATIVE AGENT (OR EXPRESSLY MADE AVAILABLE, OR WILL
EXPRESSLY MAKE AVAILABLE PRIOR TO THE CLOSING DATE, IN A REASONABLE MANNER TO
THE ADMINISTRATIVE AGENT) AND THE LENDERS FOR REVIEW; PROVIDED, THAT THE
OBLIGATION TO PROVIDE OR MAKE ANY MATERIAL AGREEMENT AVAILABLE IS SUBJECT TO
(I) THE ADMINISTRATIVE AGENT ENTERING INTO A SEPARATE CONFIDENTIALITY AGREEMENT
WITH THE APPLICABLE COMPANY ON TERMS SUFFICIENT (BASED ON THE CONFIDENTIALITY
PROVISIONS CONTAINED IN SUCH MATERIAL AGREEMENT) TO PERMIT THE DISCLOSURE OF
SUCH MATERIAL AGREEMENT TO THE ADMINISTRATIVE AGENT, AND (II) WITH RESPECT TO
ANY MATERIAL AGREEMENT THAT DOES NOT PERMIT DISCLOSURE OF SUCH AGREEMENT TO THE
ADMINISTRATIVE AGENT UPON EXECUTION OF SUCH A CONFIDENTIALITY AGREEMENT, THE
APPLICABLE COMPANY'S ABILITY TO SECURE THE CONSENT OF THE COUNTERPARTIES TO SUCH
MATERIAL AGREEMENT TO SUCH DISCLOSURE) (CLAUSES (I) AND (II) ABOVE COLLECTIVELY,
THE "CONFIDENTIALITY RESTRICTIONS") COMPLETE AND CORRECT COPIES OF ALL SUCH
MATERIAL AGREEMENTS, INCLUDING ANY AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS WITH
RESPECT THERETO, AND ALL SUCH MATERIAL AGREEMENTS ARE IN FULL FORCE AND EFFECT.
(D)
AS OF THE CLOSING DATE, NO COMPANY HAS, DIRECTLY OR INDIRECTLY,
APPLIED ANY NET PROCEEDS (AS DEFINED IN THE CONVERTIBLE INDENTURE) OF ASSET
SALES (AS DEFINED IN THE CONVERTIBLE INDENTURE) TO REPAY ANY INDEBTEDNESS (AS
DEFINED IN THE CONVERTIBLE INDENTURE) UNDER THE WORKING CAPITAL FACILITY (AS
DEFINED IN THE CONVERTIBLE INDENTURE) AND EFFECTED A CORRESPONDING PERMANENT
COMMITMENT REDUCTION THEREUNDER PURSUANT TO SECTION 5.10 OF THE CONVERTIBLE
INDENTURE; PROVIDED THAT, FOLLOWING THE CLOSING DATE, THIS REPRESENTATION AND
WARRANTY SHALL NOT APPLY TO THE APPLICATION OF NET CASH PROCEEDS PURSUANT TO THE
LAST PARAGRAPH OF SECTION 5.10 OF THE CONVERTIBLE INDENTURE.
Section 3.10
Federal Reserve Regulations.
(a)
No Company is engaged
principally, or as one of its important activities, in the business of