OUTSTANDING INVESTMENTS, LOANS AND ADVANCES OF THE
BORROWER AND ITS SUBSIDIARIES; AND (D) ALL EXISTING GUARANTEES BY THE BORROWER
AND ITS SUBSIDIARIES.
3.9.
REAL ESTATE OWNED AND LEASED; TITLE TO PROPERTIES; LIENS.
THE
BORROWER AND ITS SUBSIDIARIES HAVE GOOD AND MARKETABLE TITLE TO OR LEASEHOLD
INTERESTS IN ALL OF THEIR RESPECTIVE PROPERTIES AND ASSETS, AND NONE OF SUCH
PROPERTIES OR ASSETS IS SUBJECT TO ANY MORTGAGE, PLEDGE, LIEN, SECURITY
INTEREST, CHARGE OR ENCUMBRANCE EXCEPT THE EXISTING MORTGAGES AND SECURITY
INTERESTS, IF ANY, REFERRED TO IN SCHEDULE 3.8 ATTACHED HERETO AND PERMITTED
LIENS.
THE REAL PROPERTY OWNED BY THE BORROWER AND/OR ITS SUBSIDIARIES AND THE
REAL PROPERTY LEASED BY THE BORROWER AND/OR ITS SUBSIDIARIES (THE "REAL ESTATE
LEASES") ARE LISTED ON SCHEDULE 3.9 HERETO.
THE BORROWER AND ITS SUBSIDIARIES
ENJOY QUIET POSSESSION UNDER ALL REAL ESTATE LEASES TO WHICH THEY ARE PARTIES AS
LESSEES, AND ALL OF SUCH REAL ESTATE LEASES ARE VALID, SUBSISTING AND IN FULL
FORCE AND EFFECT.
3.10.
LITIGATION, ETC.
EXCEPT AS MAY BE SET FORTH ON SCHEDULE 3.10,
THERE IS NO ACTION, PROCEEDING OR INVESTIGATION PENDING OR THREATENED (OR ANY
BASIS THEREFOR KNOWN TO THE BORROWER) (I) WHICH QUESTIONS THE VALIDITY OF THIS
AGREEMENT, THE NOTES, THE LOAN DOCUMENTS, OR THE OTHER DOCUMENTS EXECUTED IN
CONNECTION HEREWITH OR THEREWITH, OR ANY ACTION TAKEN OR TO BE TAKEN PURSUANT
HERETO OR THERETO, OR (II) WHICH IF ADVERSELY DETERMINED AGAINST THE BORROWER,
WOULD RESULT IN LIABILITY OF THE BORROWER IN AN AMOUNT WHICH EXCEEDS $250,000.
3.11.
AUTHORIZATION; COMPLIANCE WITH OTHER INSTRUMENTS.
THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
DOCUMENTS, HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE PART OF THE
BORROWER AND ITS SUBSIDIARIES PARTY THERETO, WILL NOT RESULT IN ANY VIOLATION OF
OR BE IN CONFLICT WITH OR CONSTITUTE A DEFAULT UNDER ANY TERM OF THE CHARTER OR
BY-LAWS OF THE BORROWER OR ANY SUBSIDIARY PARTY TO ANY OF THE LOAN DOCUMENTS, OR
14
OF ANY MATERIAL AGREEMENT, OR ANY MATERIAL INSTRUMENT, JUDGMENT, DECREE, ORDER,
STATUTE, RULE OR GOVERNMENTAL REGULATION APPLICABLE TO THE BORROWER OR ANY
SUBSIDIARY PARTY TO ANY OF THE LOAN DOCUMENTS OR TO WHICH THE BORROWER OR ANY
SUCH SUBSIDIARY IS A PARTY, AS THE CASE MAY BE, OR RESULT IN THE CREATION OF ANY
MORTGAGE, LIEN, CHARGE OR ENCUMBRANCE UPON ANY OF THE PROPERTIES OR ASSETS OF
THE BORROWER OR ANY SUCH SUBSIDIARY PURSUANT TO ANY SUCH TERM, OTHER THAN THE
LIENS CREATED UNDER THE LOAN DOCUMENTS.
NO CONSENT OF STOCKHOLDERS OF THE
BORROWER IS NECESSARY IN ORDER TO AUTHORIZE THE EXECUTION, DELIVERY OR
PERFORMANCE OF THIS AGREEMENT OR THE LOAN DOCUMENTS, OR THE ISSUANCE OF THE
NOTES OTHER THAN THOSE CONSENTS WHICH HAVE BEEN OBTAINED AS OF THE CLOSING
DATE.
NEITHER THE BORROWER NOR ANY SUBSIDIARY IS IN VIOLATION OF ANY TERM OF
ITS CHARTER OR BY-LAWS, OR OF ANY MATERIAL TERM OF ANY MATERIAL AGREEMENT OR
INSTRUMENT TO WHICH IT IS A PARTY, OR, OF ANY JUDGMENT, DECREE, ORDER, STATUTE,
RULE OR