OF THE COMPANY, THE GUARANTOR
AND THEIR SUBSIDIARIES IS DULY AUTHORIZED TO EXECUTE, DELIVER AND PERFORM ITS
OBLIGATIONS UNDER EACH LOAN DOCUMENT TO WHICH IT IS A PARTY.
THE COMPANY IS
DULY AUTHORIZED TO BORROW MONIES HEREUNDER.
EXCEPT AS SET FORTH IN SCHEDULE
9.2, THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY OF THIS AGREEMENT
AND BY EACH OF THE COMPANY AND THE GUARANTOR OF EACH OTHER LOAN DOCUMENT TO
WHICH EITHER IS A PARTY, AND THE BORROWINGS BY THE COMPANY HEREUNDER, DO NOT AND
WILL NOT (A) REQUIRE ANY CONSENT OR APPROVAL OF ANY GOVERNMENTAL AGENCY OR
AUTHORITY (OTHER THAN ANY CONSENT OR APPROVAL WHICH HAS BEEN OBTAINED AND IS IN
FULL FORCE AND EFFECT), (B) CONFLICT WITH (I) ANY PROVISION OF LAW, (II) THE
CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL DOCUMENTS OF THE COMPANY OR THE
GUARANTOR OR (III) ANY AGREEMENT, INDENTURE, INSTRUMENT OR OTHER DOCUMENT, OR
ANY JUDGMENT, ORDER OR DECREE, WHICH IS BINDING UPON THE COMPANY OR THE
GUARANTOR 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, THE
GUARANTOR OR THEIR SUBSIDIARIES.
9.3
VALIDITY AND BINDING NATURE.
EACH OF THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT TO WHICH THE COMPANY OR THE GUARANTOR IS A PARTY IS THE
LEGAL, VALID AND BINDING OBLIGATION OF SUCH PERSON, ENFORCEABLE AGAINST SUCH
PERSON 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 GUARANTOR AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2003, COPIES
OF WHICH HAVE BEEN DELIVERED TO THE BANK, WERE PREPARED IN ACCORDANCE WITH GAAP
AND PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE CONSOLIDATED FINANCIAL
CONDITION OF THE GUARANTOR AND ITS SUBSIDIARIES AS AT SUCH DATE AND THE RESULTS
OF THEIR OPERATIONS FOR THE PERIOD THEN ENDED.
20
9.5
NO MATERIAL ADVERSE CHANGE.
SINCE DECEMBER 31, 2003, THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE IN THE FINANCIAL CONDITION, OPERATIONS, ASSETS,
BUSINESS, PROPERTIES OF THE COMPANY, THE GUARANTOR AND THEIR 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, THE GUARANTOR OR ANY OF THEIR SUBSIDIARIES WHICH 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, THE GUARANTOR NOR ANY OF THEIR SUBSIDIARIES HAS ANY
SURETYSHIP LIABILITIES NOT LISTED ON SCHEDULE 9.6 OR PERMITTED BY SECTION 10.6
WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
9.7
OWNERSHIP OF PROPERTIES; LIENS.
EACH OF THE COMPANY, THE
GUARANTOR, AND EACH OF THEIR SUBSIDIARIES OWNS GOOD AND, IN THE CASE OF REAL
PROPERTY,
MARKETABLE TITLE TO ALL OF ITS PROPERTIES AND ASSETS, REAL AND
PERSONAL, TANGIBLE AND INTANGIBLE, OF ANY NATURE