AGREEMENT OR ANY OTHER MATERIAL AGREEMENT, LEASE OR INSTRUMENT
TO WHICH AN OBLIGOR IS A PARTY OR BY WHICH IT OR ITS PROPERTIES MAY BE BOUND OR
AFFECTED; OR (E) RESULT IN, OR REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN
OF ANY NATURE UPON OR WITH RESPECT TO ANY OF THE PROPERTIES NOW OWNED OR
HEREAFTER ACQUIRED BY AN OBLIGOR (OTHER THAN AS REQUIRED HEREUNDER IN FAVOR OF
THE ADMINISTRATIVE AGENT OR THE LENDER PARTIES OR AS OTHERWISE PERMITTED BY THIS
AGREEMENT); IN EACH CASE OF (B), (C) OR (D) ABOVE, THE NONCOMPLIANCE WITH WHICH
WOULD HAVE A MATERIAL ADVERSE EFFECT.
SECTION 4.3
LEGAL AGREEMENTS.
EACH OF THE LOAN DOCUMENTS CONSTITUTES
THE LEGAL, VALID AND BINDING OBLIGATIONS AND AGREEMENTS OF THE OBLIGOR THAT IS A
PARTY THERETO, ENFORCEABLE AGAINST SUCH OBLIGOR IN ACCORDANCE ITS TERMS, EXCEPT
TO THE EXTENT THAT ENFORCEMENT THEREOF MAY BE LIMITED BY AN APPLICABLE
BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS NOW OR HEREAFTER IN EFFECT AFFECTING
CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES OF EQUITY.
SECTION 4.4
CAPITALIZATION.
THE HOLDER, CLASS AND PERCENTAGE
INTERESTS OF THE OWNERSHIP OF EACH OBLIGOR (OTHER THAN THE BORROWER) AND ALL
SUBSIDIARIES OF EACH OBLIGOR (BOTH DIRECT AND INDIRECT) ARE SET FORTH AND
DESCRIBED IN SCHEDULE 4.4, WHEREIN EACH SUBSIDIARY THAT IS A GUARANTOR, IF ANY,
HEREUNDER IS SO NOTED.
ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF EACH
OBLIGOR, IF ANY, (OTHER THAN THE BORROWER) IS DULY AUTHORIZED, VALIDLY ISSUED,
FULLY PAID AND NONASSESSABLE.
NO VIOLATION OF ANY PREEMPTIVE RIGHTS WILL BE
TRIGGERED BY VIRTUE OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS.
SECTION 4.5
FINANCIAL CONDITION.
THE BORROWER HAS HERETOFORE
FURNISHED TO THE ADMINISTRATIVE AGENT THE AUDITED FINANCIAL STATEMENTS OF THE
CONSOLIDATED GROUP FOR THE FISCAL YEAR ENDED AUGUST 31, 2008 AND THE UNAUDITED
FINANCIAL STATEMENTS OF THE CONSOLIDATED GROUP FOR THE FISCAL QUARTER ENDED
MAY 31, 2009.
THOSE FINANCIAL STATEMENTS FAIRLY PRESENT THE FINANCIAL CONDITION
OF THE CONSOLIDATED GROUP ON THE DATE THEREOF AND THE RESULTS OF OPERATIONS AND
CASH FLOWS FOR THE PERIODS THEN ENDED (SUBJECT TO YEAR-END AUDIT ADJUSTMENTS)
AND WERE PREPARED IN ACCORDANCE WITH GAAP.
SECTION 4.6
ADVERSE CHANGE.
THERE HAS BEEN NO CHANGE IN THE BUSINESS,
PROPERTIES OR CONDITION (FINANCIAL OR OTHERWISE) OF THE CONSOLIDATED GROUP SINCE
THE DATE OF THE LAST FINANCIAL STATEMENT REFERRED TO IN SECTION 4.5 THAT COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION 4.7
LITIGATION.
THERE ARE NO ACTIONS, SUITS, INVESTIGATIONS,
CLAIMS, UNSATISFIED JUDGMENTS OR PROCEEDINGS PENDING OR, TO THE KNOWLEDGE OF ANY
OBLIGOR, THREATENED AGAINST OR AFFECTING ANY OBLIGOR OR THE PROPERTIES OR
BUSINESS OF ANY OBLIGOR BEFORE ANY COURT OR GOVERNMENTAL DEPARTMENT, COMMISSION,
BOARD, BUREAU, AGENCY OR INSTRUMENTALITY, DOMESTIC OR
50
FOREIGN, WHICH, IF DETERMINED ADVERSELY TO SUCH PERSON, WOULD EXCEED $7,500,000,
EXCEPT AS SET FORTH AND DESCRIBED IN SCHEDULE 4.7.
SECTION 4.8
REGULATION U.
NO OBLIGOR HAS ENGAGED IN THE BUSINESS OF
EXTENDING CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING MARGIN STOCK (WITHIN
THE MEANING OF REGULATION U OF THE