ACTION.
THE LOAN DOCUMENTS TO WHICH
EACH LOAN PARTY IS A PARTY HAVE BEEN DULY EXECUTED AND DELIVERED BY SUCH LOAN
PARTY AND CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF SUCH LOAN PARTY,
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 (EXCEPT
AS SET FORTH ON SCHEDULE 3.03) ANY OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY,
EXCEPT (I) SUCH AS HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT,
(II) THE FILINGS OF THE CERTIFICATES OF MERGER OR OTHER SIMILAR FILINGS WITH
APPROPRIATE GOVERNMENTAL AUTHORITIES IN CONNECTION WITH THE BIOSPIN ACQUISITION,
AND (III) FILINGS NECESSARY TO PERFECT LIENS CREATED UNDER THE LOAN DOCUMENTS,
(B) WILL NOT VIOLATE ANY APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS OR
OTHER ORGANIZATIONAL DOCUMENTS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR ANY
ORDER OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE OR RESULT IN A DEFAULT
UNDER ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR ITS ASSETS, OR GIVE RISE TO A RIGHT THEREUNDER TO
REQUIRE ANY PAYMENT (OTHER THAN PAYMENTS CONTEMPLATED BY THE BIOSPIN ACQUISITION
AND THE LOAN DOCUMENTS) TO BE MADE BY THE COMPANY OR ANY OF ITS SUBSIDIARIES,
AND (D) WILL
45
NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSET OF THE COMPANY
OR ANY OF ITS SUBSIDIARIES, OTHER THAN LIENS CREATED UNDER THE PLEDGE
AGREEMENTS.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
COMPANY HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET
AND STATEMENTS OF INCOME, STOCKHOLDERS EQUITY AND CASH FLOWS (I) AS OF AND FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2006 REPORTED ON BY ERNST & YOUNG LLP,
INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE FISCAL QUARTER AND
THE PORTION OF THE FISCAL YEAR ENDED SEPTEMBER 30, 2007, 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
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS
IN ACCORDANCE WITH GAAP, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS AND THE ABSENCE
OF FOOTNOTES IN THE CASE OF THE STATEMENTS REFERRED TO IN CLAUSE (II) ABOVE.
(B)
SINCE DECEMBER 31, 2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE
BUSINESS, ASSETS, OPERATIONS OR CONDITION, FINANCIAL OR OTHERWISE, OF THE
COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
SECTION 3.05.
PROPERTIES.
(A)
EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS
GOOD TITLE TO, OR VALID LEASEHOLD INTERESTS IN, ALL ITS REAL AND PERSONAL
PROPERTY MATERIAL TO ITS BUSINESS, EXCEPT FOR MINOR DEFECTS IN TITLE THAT DO NOT
INTERFERE WITH ITS ABILITY