THE COMPANY HAS HERETOFORE
FURNISHED TO THE LENDERS (I) ITS CONSOLIDATED BALANCE SHEET AND RELATED
CONSOLIDATED STATEMENTS OF EARNINGS, CASH FLOWS AND SHAREHOLDERS' EQUITY AS OF
AND FOR THE FISCAL YEAR ENDED DECEMBER 31, 2011, AUDITED BY AND ACCOMPANIED BY
THE OPINION OF PRICEWATERHOUSE COOPERS LLP, INDEPENDENT PUBLIC ACCOUNTANTS AND
(II) ITS CONSOLIDATED BALANCE SHEET AND RELATED CONSOLIDATED STATEMENTS OF
EARNINGS AND CASH FLOWS AS OF AND FOR THE FISCAL QUARTER ENDED SEPTEMBER 30,
2012, CERTIFIED BY ITS CHIEF FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS
PRESENT FAIRLY IN ALL MATERIAL RESPECTS THE FINANCIAL POSITION OF THE COMPANY
AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND THEIR RESULTS OF
OPERATIONS AND CASH FLOWS FOR SUCH PERIODS.
SUCH STATEMENTS OF FINANCIAL
POSITION AND THE NOTES THERETO DISCLOSE ALL MATERIAL LIABILITIES, DIRECT OR
CONTINGENT, OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE DATES
THEREOF REQUIRED TO BE DISCLOSED UNDER GAAP.
SUCH FINANCIAL STATEMENTS WERE
PREPARED IN ACCORDANCE WITH GAAP APPLIED ON A CONSISTENT BASIS.
(B)
SINCE DECEMBER 31, 2011, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE
IN THE BUSINESS, ASSETS, PROPERTY OR FINANCIAL CONDITION OF THE COMPANY AND ITS
SUBSIDIARIES TAKEN AS WHOLE.
SECTION 3.06.
LITIGATION; COMPLIANCE WITH LAWS.
(A) THERE ARE NOT ANY
ACTIONS, SUITS, PROCEEDINGS OR GOVERNMENTAL INVESTIGATIONS AT LAW OR IN EQUITY
OR BY OR BEFORE ANY GOVERNMENTAL AUTHORITY NOW PENDING OR, TO THE KNOWLEDGE OF
THE COMPANY OR ORIGINAL SUBSIDIARY BORROWER, THREATENED IN WRITING AGAINST THE
COMPANY OR ANY SUBSIDIARY OR ANY BUSINESS, PROPERTY OR RIGHTS OF ANY SUCH PERSON
(I) WHICH INVOLVE THE LOAN DOCUMENTS OR THE TRANSACTIONS OR (II) AS TO WHICH
THERE IS A REASONABLE POSSIBILITY OF AN ADVERSE DETERMINATION WHICH COULD,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT.
57
(B)
NEITHER THE COMPANY NOR ANY OF THE SUBSIDIARIES IS IN VIOLATION OF
ANY LAW, RULE OR REGULATION (INCLUDING, WITHOUT LIMITATION, THE TRADING WITH THE
ENEMY ACT OF THE UNITED STATES OF AMERICA (AS AMENDED), ANY OF THE FOREIGN
ASSETS CONTROL REGULATIONS OF THE UNITED STATES TREASURY DEPARTMENT (AS AMENDED)
AND THE PATRIOT ACT), OR IN DEFAULT WITH RESPECT TO ANY JUDGMENT, WRIT,
INJUNCTION OR DECREE OF ANY GOVERNMENTAL AUTHORITY, WHERE SUCH VIOLATION OR
DEFAULT COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
SECTION 3.07.
FEDERAL RESERVE REGULATIONS.
THE MAKING OF THE LOANS
HEREUNDER AND THE USE OF THE PROCEEDS THEREOF AS CONTEMPLATED HEREBY WILL NOT
VIOLATE OR BE INCONSISTENT WITH REGULATION U OR REGULATION X.
AFTER APPLICATION
OF THE PROCEEDS OF ANY LOAN, NOT MORE THAN 25% OF THE ASSETS OF THE COMPANY AND
ITS SUBSIDIARIES TAKEN AS A WHOLE WILL BE REPRESENTED BY MARGIN STOCK (WITHIN
THE MEANING OF REGULATION U).
SECTION 3.08.
NO REGULATORY RESTRICTIONS ON BORROWING.
NEITHER THE COMPANY
NOR ANY OTHER BORROWER IS (A) AN "INVESTMENT COMPANY" AS DEFINED IN, OR SUBJECT
TO REGULATION UNDER, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR (B)
SUBJECT TO ANY OTHER APPLICABLE REGULATORY SCHEME WHICH RESTRICTS ITS ABILITY TO