THE COMPANY'S MOST
RECENT FILING WITH THE SEC ON FORM 10-K OR (III) ANY MATERIAL AGREEMENT,
INDENTURE, INSTRUMENT OR OTHER DOCUMENT, OR ANY JUDGMENT, ORDER OR DECREE, WHICH
IS BINDING UPON THE COMPANY OR ANY RESTRICTED SUBSIDIARY OR ANY OF THEIR
RESPECTIVE PROPERTIES OR (C) REQUIRE, OR RESULT IN, THE CREATION OR IMPOSITION
OF ANY LIEN ON ANY ASSET OF THE COMPANY OR ANY RESTRICTED SUBSIDIARY (OTHER THAN
LIENS, IF ANY, IN FAVOR OF THE ADMINISTRATIVE AGENT CREATED PURSUANT TO THE LOAN
DOCUMENTS).
9.3
VALIDITY AND BINDING NATURE.
EACH OF THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT IS THE LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY,
ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
BANKRUPTCY, INSOLVENCY AND SIMILAR LAWS AFFECTING THE ENFORCEABILITY OF
CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF EQUITY.
9.4
FINANCIAL CONDITION.
THE AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE COMPANY AND ITS SUBSIDIARIES AS AT MAY 31, 2006,
COPIES OF
WHICH HAVE BEEN DELIVERED TO EACH LENDER, WERE PREPARED IN ACCORDANCE WITH GAAP
(SUBJECT, IN THE CASE OF SUCH UNAUDITED STATEMENTS, TO THE ABSENCE OF FOOTNOTES
AND TO NORMAL YEAR-END ADJUSTMENTS) AND PRESENT FAIRLY THE CONSOLIDATED
FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES AS AT SUCH DATES AND THE
RESULTS OF THEIR OPERATIONS FOR THE PERIODS THEN ENDED.
9.5
NO MATERIAL ADVERSE CHANGE.
SINCE MAY 31, 2006, THERE HAS BEEN NO
MATERIAL ADVERSE CHANGE IN THE FINANCIAL CONDITION, OPERATIONS, ASSETS, BUSINESS
OR PROPERTIES OF THE COMPANY AND THE RESTRICTED SUBSIDIARIES, TAKEN AS A WHOLE.
9.6
LITIGATION AND CONTINGENT LIABILITIES.
NO LITIGATION (INCLUDING
DERIVATIVE ACTIONS), ARBITRATION PROCEEDING OR GOVERNMENTAL INVESTIGATION OR
PROCEEDING IS PENDING OR, TO THE COMPANY'S KNOWLEDGE, THREATENED AGAINST THE
COMPANY OR ANY RESTRICTED SUBSIDIARY WHICH
37
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, EXCEPT AS SET
FORTH IN SCHEDULE 9.6.
OTHER THAN ANY LIABILITY INCIDENT TO SUCH LITIGATION OR
PROCEEDINGS, NEITHER THE COMPANY NOR ANY RESTRICTED SUBSIDIARY HAS ANY MATERIAL
CONTINGENT LIABILITIES NOT LISTED ON SCHEDULE 9.6 OR PERMITTED BY SECTION 11.1.
9.7
OWNERSHIP OF PROPERTIES; LIENS.
EACH OF THE COMPANY AND EACH OF
ITS RESTRICTED SUBSIDIARIES OWNS GOOD AND, IN THE CASE OF REAL PROPERTY,
SUFFICIENT TITLE TO ALL OF ITS PROPERTIES AND ASSETS, REAL AND PERSONAL,
TANGIBLE AND INTANGIBLE, OF ANY NATURE WHATSOEVER (INCLUDING PATENTS,
TRADEMARKS, TRADE NAMES, SERVICE MARKS AND COPYRIGHTS) THAT INDIVIDUALLY OR IN
THE AGGREGATE ARE MATERIAL, FREE AND CLEAR OF ALL LIENS, CHARGES AND CLAIMS
(INCLUDING INFRINGEMENT CLAIMS WITH RESPECT TO PATENTS, TRADEMARKS, SERVICE
MARKS, COPYRIGHTS AND THE LIKE) EXCEPT AS PERMITTED BY SECTION 11.2.
9.8
EQUITY OWNERSHIP; SUBSIDIARIES.
ALL ISSUED AND OUTSTANDING
CAPITAL SECURITIES OF THE COMPANY AND EACH RESTRICTED SUBSIDIARY ARE DULY
AUTHORIZED AND VALIDLY ISSUED, FULLY PAID, NON-ASSESSABLE, AND FREE AND CLEAR OF
ALL LIENS OTHER THAN THOSE IN FAVOR OF THE ADMINISTRATIVE AGENT (IF ANY), AND
SUCH SECURITIES WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL
LAWS CONCERNING THE ISSUANCE OF SECURITIES.
SCHEDULE 9.8 SETS FORTH THE
AUTHORIZED CAPITAL SECURITIES OF EACH RESTRICTED SUBSIDIARY