SUBJECT, IN THE CASE OF
CLAUSES (I) AND (II), TO THE ABSENCE OF FOOTNOTES AND TO NORMAL YEAR-END AUDIT
ADJUSTMENTS; AND (III) SHOW, IN ACCORDANCE WITH GAAP, ALL MATERIAL INDEBTEDNESS
AND OTHER MATERIAL LIABILITIES, DIRECT OR CONTINGENT, OF THE LOAN PARTIES AND
THEIR DOMESTIC SUBSIDIARIES AS OF THE DATE THEREOF, INCLUDING LIABILITIES FOR
TAXES, MATERIAL COMMITMENTS AND INDEBTEDNESS.
(C)
FROM THE DATE OF THE AUDITED PRE CLOSING FINANCIAL STATEMENTS AND
THE INTERIM PRE CLOSING FINANCIAL STATEMENTS TO AND INCLUDING THE CLOSING DATE,
THERE HAS BEEN NO DISPOSITION BY THE RESPECTIVE PERSONS COVERED BY SUCH
FINANCIAL STATEMENTS WITH RESPECT TO A MATERIAL PORTION OF THE BORROWERS'
ASSETS, OR ANY INVOLUNTARY DISPOSITION, OF ANY MATERIAL PART OF THE BUSINESS OR
PROPERTY OF THE RESPECTIVE PERSONS COVERED BY SUCH FINANCIAL STATEMENTS, AND NO
PURCHASE OR OTHER ACQUISITION BY ANY OF THEM OF ANY BUSINESS OR PROPERTY
(INCLUDING ANY EQUITY INTEREST OF ANY OTHER PERSON) MATERIAL IN RELATION TO THE
CONSOLIDATED FINANCIAL CONDITION OF THE RESPECTIVE PERSONS COVERED BY SUCH
FINANCIAL STATEMENTS, IN EACH CASE, WHICH IS NOT REFLECTED IN THE FOREGOING
FINANCIAL STATEMENTS OR IN THE NOTES THERETO AND HAS NOT OTHERWISE BEEN
DISCLOSED IN WRITING TO THE LENDERS ON OR PRIOR TO THE CLOSING DATE.
(D)
THE FINANCIAL STATEMENTS DELIVERED PURSUANT TO
SECTIONS 6.01(A) AND 6.01(B) WILL BE PREPARED IN ACCORDANCE WITH GAAP (EXCEPT AS
MAY OTHERWISE BE PERMITTED UNDER SECTIONS 6.01(A) AND 6.01(B)) AND PRESENT
FAIRLY IN ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL CONDITION, RESULTS OF
OPERATIONS AND CASH FLOWS OF THE LOAN PARTIES AND THEIR DOMESTIC SUBSIDIARIES AS
OF THE DATES THEREOF AND FOR THE PERIODS COVERED THEREBY.
(E)
SINCE DECEMBER 31, 2006 THERE HAS BEEN NO EVENT OR CIRCUMSTANCE
THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
73
SECTION 5.06
LITIGATION.
THERE ARE NO PROCEEDINGS PENDING OR,
TO THE KNOWLEDGE OF THE LOAN PARTIES, THREATENED OR CONTEMPLATED, AT LAW, IN
EQUITY, IN ARBITRATION OR BEFORE ANY GOVERNMENTAL AUTHORITY, BY OR AGAINST ANY
LOAN PARTY OR ANY OF ITS SUBSIDIARIES OR AGAINST ANY OF THEIR PROPERTIES OR
REVENUES THAT (A) PURPORT TO AFFECT OR PERTAIN TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR (B) IF DETERMINED ADVERSELY, COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT OR RESULT IN ANY LOAN PARTY NOT BEING AUTHORIZED
TO OWN OR OPERATE ANY MATERIAL PORTION OF THE COLLATERAL OR ITS PROPERTY.
SECTION 5.07
NO DEFAULT.
(A)
NO LOAN PARTY IS IN BREACH OF OR DEFAULT UNDER (I) ANY MATERIAL
CONTRACT, OR (II) ANY OTHER CONTRACTUAL OBLIGATION; IN EACH CASE, THAT COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(B)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
SECTION 5.08
OWNERSHIP OF PROPERTY; LIENS.
EACH OF THE LOAN
PARTIES AND ITS DOMESTIC SUBSIDIARIES HAS, AS APPLICABLE, GOOD RECORD AND
MARKETABLE TITLE IN FEE SIMPLE TO, VALID LEASEHOLD INTERESTS IN, VALID LICENSES
OR OTHER VALID RIGHTS TO USE, ALL PROPERTY NECESSARY OR MATERIAL TO THE ORDINARY
CONDUCT OF SUCH LOAN PARTY'S