HAVE A MATERIAL ADVERSE EFFECT ON
THE BUSINESS, ASSETS OR FINANCIAL CONDITION OF SUCH BORROWER.
(B)
AUTHORIZATION.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY (I) ARE WITHIN THE CORPORATE (OR THE EQUIVALENT COMPANY OR PARTNERSHIP)
AUTHORITY OF EACH OF THE BORROWERS, (II) HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE (OR OTHER) PROCEEDINGS, (III) DO NOT CONFLICT WITH OR RESULT
IN ANY MATERIAL BREACH OR CONTRAVENTION OF ANY APPLICABLE LAW TO WHICH ANY OF
THE BORROWERS IS SUBJECT OR ANY JUDGMENT, ORDER, WRIT, INJUNCTION, LICENSE OR
PERMIT APPLICABLE TO ANY OF THE BORROWERS SO AS TO MATERIALLY ADVERSELY AFFECT
THE ASSETS, BUSINESS OR ANY ACTIVITY OF THE BORROWERS, AND (IV) DO NOT CONFLICT
WITH ANY PROVISION OF THE CORPORATE CHARTER, ARTICLES OR BYLAWS (OR EQUIVALENT
OTHER ENTITY OR PARTNERSHIP DOCUMENTS) OF THE BORROWERS OR ANY AGREEMENT OR
OTHER INSTRUMENT BINDING UPON THE BORROWERS, INCLUDING, WITHOUT LIMITATION, THE
SENIOR SUBORDINATED NOTES INDENTURE AND THE SECOND LIEN NOTES INDENTURE.
(C)
ENFORCEABILITY.
THIS AGREEMENT HAS BEEN,
AND EACH OTHER LOAN DOCUMENT, WHEN DELIVERED HEREUNDER, WILL HAVE BEEN, DULY
EXECUTED AND DELIVERED BY THE BORROWERS.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS WILL RESULT IN VALID AND LEGALLY BINDING
OBLIGATIONS OF THE BORROWERS ENFORCEABLE AGAINST EACH IN ACCORDANCE WITH THE
RESPECTIVE TERMS AND PROVISIONS HEREOF AND THEREOF, EXCEPT AS ENFORCEABILITY IS
LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER
APPLICABLE LAWS RELATING TO OR AFFECTING GENERALLY THE ENFORCEMENT OF CREDITORS'
RIGHTS AND EXCEPT TO THE EXTENT THAT AVAILABILITY OF THE REMEDY OF SPECIFIC
PERFORMANCE OR INJUNCTIVE RELIEF OR OTHER EQUITABLE REMEDY IS SUBJECT TO THE
DISCRETION OF THE COURT BEFORE WHICH ANY PROCEEDING THEREFOR MAY BE BROUGHT.
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5.02
Governmental Approvals; Other Approvals.
The
execution, delivery and performance by the Borrowers of the Loan Documents and
the transactions contemplated hereby and thereby, and the execution by the
Administrative Agent or the Lenders of their respective rights and remedies
thereunder do not require any approval or consent of, or filing with, any
Governmental Authority or other Person other than those already obtained, and
copies of which have been delivered to the Administrative Agent.
5.03
Title to Properties; Leases.
The Borrowers own all
of the assets reflected in the consolidated balance sheet as at the Balance
Sheet Date or acquired since that date (except for assets shown on such balance
sheet under "finance leases" and except for property and assets sold or
otherwise disposed of in the ordinary course of business since that date or in a
Disposition permitted under Section 7.04(b)), subject to no mortgages,
Capitalized Leases, conditional sales agreements, title retention agreements or
Liens (except for Permitted Liens).
5.04
Use of Proceeds.
The proceeds of the Loans shall be
used (a) to refinance the existing Indebtedness of the Borrowers under the
Existing Credit Agreement, and (b) for working capital, Permitted Acquisitions
and other general corporate purposes.
No proceeds of the Loans are to be used,
and no portion of any Letter of