CONTINGENT, OF THE BORROWER AND THE
CONSOLIDATED SUBSIDIARIES AS OF THE DATES THEREOF.
THE FINANCIAL STATEMENTS
REFERRED TO IN CLAUSE (A) ABOVE WERE PREPARED IN ACCORDANCE WITH GAAP APPLIED ON
A CONSISTENT BASIS, AND THE FINANCIAL STATEMENTS REFERRED TO IN CLAUSE (B) ABOVE
WERE PREPARED IN ACCORDANCE WITH GAAP APPLIED ON A CONSISTENT BASIS SUBJECT TO
YEAR-END ADJUSTMENTS.
SECTION 3.06.
NO MATERIAL ADVERSE CHANGE.
EXCEPT FOR ANY DISCLOSED MATTER, NO
MATERIAL ADVERSE CHANGE IN THE BUSINESS, PROPERTIES, FINANCIAL CONDITION,
PROSPECTS OR RESULTS OF OPERATIONS OF THE BORROWER AND THE CONSOLIDATED
SUBSIDIARIES HAS OCCURRED SINCE DECEMBER 31, 2006.
IT IS UNDERSTOOD THAT
DOWNGRADES OR NEGATIVE PRONOUNCEMENTS BY RATING AGENCIES AND VOLATILITY IN THE
CAPITAL MARKETS GENERALLY SHALL NOT IN AND OF THEMSELVES BE CONSIDERED MATERIAL
ADVERSE CHANGES, BUT THAT THE ANTECEDENTS OR CONSEQUENCES THEREOF MAY CONSTITUTE
SUCH CHANGES (EXCEPT TO THE EXTENT THE SAME CONSTITUTE DISCLOSED MATTERS).
41
SECTION 3.07.
SUBSIDIARIES.
SCHEDULE 3.07 CONTAINS AN ACCURATE LIST OF ALL THE
(A) SIGNIFICANT JOINT VENTURES AND (B) SUBSIDIARIES WHICH HAVE ANY ASSETS OR
OPERATIONS, IN EACH CASE ON THE DATE HEREOF, SETTING FORTH THEIR RESPECTIVE
JURISDICTIONS OF ORGANIZATION AND THE PERCENTAGE OF THEIR RESPECTIVE OWNERSHIP
INTERESTS HELD BY THE BORROWER OR OTHER SUBSIDIARIES.
SECTION 3.08.
LITIGATION; CONTINGENT OBLIGATIONS.
EXCEPT FOR ANY DISCLOSED
MATTER, (A) THERE IS NO LITIGATION, ARBITRATION, GOVERNMENTAL INVESTIGATION,
PROCEEDING OR INQUIRY PENDING OR, TO THE KNOWLEDGE OF ANY OF THEIR OFFICERS,
THREATENED AGAINST OR AFFECTING THE BORROWER OR ANY CONSOLIDATED SUBSIDIARY THAT
(I) IS REQUIRED TO BE DISCLOSED AND HAS NOT BEEN SO DISCLOSED IN ANY FILING WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED, OR (II) COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT AND (B) NEITHER THE BORROWER NOR ANY CONSOLIDATED SUBSIDIARY HAS
ANY MATERIAL CONTINGENT OBLIGATIONS.
SECTION 3.09.
MATERIAL AGREEMENTS.
NEITHER THE BORROWER NOR ANY SUBSIDIARY IS
IN DEFAULT IN THE PERFORMANCE, OBSERVANCE OR FULFILLMENT OF ANY OF THE
OBLIGATIONS, COVENANTS OR CONDITIONS CONTAINED IN (A) ANY AGREEMENT TO WHICH IT
IS A PARTY, WHICH DEFAULT COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT OR (B) ANY AGREEMENT OR INSTRUMENT EVIDENCING OR GOVERNING
INDEBTEDNESS WHICH DEFAULT WOULD RESULT IN AN EVENT OF DEFAULT UNDER CLAUSE (F)
OF ARTICLE VII.
SECTION 3.10.
REGULATION U.
(A)
MARGIN STOCK CONSTITUTES LESS THAN 25% OF
THOSE ASSETS OF THE BORROWER AND ITS SUBSIDIARIES THAT ARE SUBJECT TO ANY
LIMITATION ON SALE OR PLEDGE HEREUNDER.
(B)
AS OF THE DATE HEREOF, THE ONLY MARGIN STOCK OWNED BY THE BORROWER OR ANY
OF ITS SUBSIDIARIES IS MARGIN STOCK WITH AN AGGREGATE VALUE NOT IN EXCESS OF
$1,000,000.
SECTION 3.11.
INVESTMENT COMPANY ACT.
NEITHER THE BORROWER NOR ANY SUBSIDIARY
IS AN "INVESTMENT COMPANY" OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY",
WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
SECTION 3.12.
USE OF PROCEEDS.
THE BORROWER WILL USE THE PROCEEDS OF THE LOANS
ONLY FOR THE PURPOSES SET FORTH IN THE RECITALS TO THIS AGREEMENT.
SECTION