LOAN PARTY (AS THE CASE MAY BE), ENFORCEABLE
IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY
AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER CONSIDERED IN
A PROCEEDING IN EQUITY OR AT LAW.
SECTION 3.03.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE TRANSACTIONS (A) DO
NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH, OR ANY
OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY, EXCEPT SUCH AS HAVE BEEN OBTAINED
OR MADE AND ARE IN FULL FORCE AND EFFECT AND EXCEPT FILINGS NECESSARY TO PERFECT
LIENS CREATED UNDER THE LOAN DOCUMENTS, (B) WILL NOT VIOLATE ANY REQUIREMENT OF
LAW APPLICABLE TO THE PARENT BORROWER OR ANY SUBSIDIARY, (C) WILL NOT VIOLATE OR
RESULT IN A DEFAULT UNDER ANY MATERIAL INDENTURE, MATERIAL AGREEMENT OR OTHER
MATERIAL INSTRUMENT BINDING UPON THE PARENT BORROWER OR ANY SUBSIDIARY OR THEIR
ASSETS, OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE ANY PAYMENT TO BE MADE BY
THE PARENT BORROWER OR ANY SUBSIDIARY OR GIVE RISE TO A RIGHT OF, OR RESULT IN,
TERMINATION, CANCELATION OR ACCELERATION OF ANY OBLIGATION THEREUNDER, AND
(D) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSET OF
THE PARENT BORROWER OR ANY SUBSIDIARY, EXCEPT LIENS CREATED UNDER THE LOAN
DOCUMENTS.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE PARENT
BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET
AND CONSOLIDATED STATEMENTS OF INCOME, STOCKHOLDERS EQUITY AND CASH FLOWS (I) AS
OF AND FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, DECEMBER 31, 2004 AND
DECEMBER 31, 2005, REPORTED ON BY PRICEWATERHOUSECOOPERS LLP, INDEPENDENT PUBLIC
ACCOUNTANTS AND (II) AS OF AND FOR THE FISCAL QUARTERS AND THE PORTION OF THE
FISCAL YEAR ENDED MARCH 31, 2006 JUNE 30, 2006 AND SEPTEMBER 30, 2006 (AND FOR
THE COMPARABLE PERIODS FOR THE PRIOR FISCAL YEAR), CERTIFIED BY ITS CHIEF
FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE
PARENT BORROWER AND ITS SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS
AND THE ABSENCE OF FOOTNOTES IN THE CASE OF THE STATEMENTS REFERRED TO IN
CLAUSE (II) ABOVE.
(B)
EXCEPT AS DISCLOSED IN THE FINANCIAL STATEMENTS REFERRED TO ABOVE OR THE
NOTES THERETO AND EXCEPT FOR THE DISCLOSED MATTERS, NONE OF THE PARENT BORROWER
OR THE SUBSIDIARIES HAS, AS OF THE EFFECTIVE DATE, ANY MATERIAL DIRECT OR
CONTINGENT LIABILITIES, UNUSUAL LONG-TERM COMMITMENTS OR UNREALIZED LOSSES.
(C)
NO EVENT, CHANGE OR CONDITION HAS OCCURRED THAT HAS HAD, OR COULD
REASONABLY BE EXPECTED TO HAVE, A MATERIALLY ADVERSE EFFECT ON THE BUSINESS,
OPERATIONS, PROPERTIES, ASSETS, CONDITION (FINANCIAL OR OTHERWISE), LIABILITIES
OR PROSPECTS OF THE PARENT
44
BORROWER AND THE SUBSIDIARIES, TAKEN AS A WHOLE, WHETHER OR NOT COVERED BY
INSURANCE, SINCE DECEMBER 31, 2005.
SECTION 3.05.
PROPERTIES.
(A)
EACH OF THE PARENT BORROWER AND THE
SUBSIDIARIES HAS GOOD