THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT TO WHICH ANY LOAN PARTY IS A PARTY IS THE LEGAL, VALID AND
BINDING OBLIGATION OF SUCH PERSON, ENFORCEABLE AGAINST SUCH PERSON IN ACCORDANCE
WITH ITS TERMS, SUBJECT TO BANKRUPTCY, INSOLVENCY AND SIMILAR LAWS AFFECTING THE
ENFORCEABILITY OF CREDITORS' RIGHTS GENERALLY AND TO GENERAL PRINCIPLES OF
EQUITY.
33
9.4
FINANCIAL CONDITION.
THE AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE LOAN PARTIES AS AT COMPANY'S FISCAL YEAR END, 2005, COPIES OF
WHICH HAVE BEEN DELIVERED TO THE ADMINISTRATIVE AGENT, WERE PREPARED IN
ACCORDANCE WITH GAAP AND PRESENT FAIRLY THE CONSOLIDATED FINANCIAL CONDITION OF
THE LOAN PARTIES AS AT SUCH DATE AND THE RESULTS OF THEIR OPERATIONS FOR THE
PERIOD THEN ENDED.
9.5
NO MATERIAL ADVERSE CHANGE.
SINCE THE DATE OF THE COMPANY'S LAST
FINANCIAL STATEMENT AUDIT, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE
FINANCIAL CONDITION, OPERATIONS, ASSETS, BUSINESS, PROPERTIES OF THE LOAN
PARTIES TAKEN AS A WHOLE.
9.6
LITIGATION AND CONTINGENT LIABILITIES.
NO LITIGATION (INCLUDING
DERIVATIVE ACTIONS), ARBITRATION PROCEEDING OR GOVERNMENTAL INVESTIGATION OR
PROCEEDING IS PENDING OR, TO THE COMPANY'S KNOWLEDGE, THREATENED AGAINST ANY
LOAN PARTY WHICH MIGHT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT,
EXCEPT AS SET FORTH IN SCHEDULE 9.6. OTHER THAN ANY LIABILITY INCIDENT TO SUCH
LITIGATION OR PROCEEDINGS, NO LOAN PARTY HAS ANY MATERIAL CONTINGENT LIABILITIES
NOT LISTED ON SCHEDULE 9.6 OR PERMITTED BY SECTION 11.1.
9.7
OWNERSHIP OF PROPERTIES; LIENS.
EACH LOAN PARTY OWNS GOOD AND,
IN THE CASE OF REAL PROPERTY,
MARKETABLE TITLE TO ALL OF ITS PROPERTIES AND
ASSETS, REAL AND PERSONAL, TANGIBLE AND INTANGIBLE, OF ANY NATURE WHATSOEVER
(INCLUDING PATENTS, TRADEMARKS, TRADE NAMES, SERVICE MARKS AND COPYRIGHTS), FREE
AND CLEAR OF ALL LIENS, CHARGES AND CLAIMS (INCLUDING INFRINGEMENT CLAIMS WITH
RESPECT TO PATENTS, TRADEMARKS, SERVICE MARKS, COPYRIGHTS AND THE LIKE) EXCEPT
AS PERMITTED BY SECTION 11.2.
9.8
EQUITY OWNERSHIP; SUBSIDIARIES.
ALL ISSUED AND OUTSTANDING
CAPITAL SECURITIES OF EACH LOAN PARTY ARE DULY AUTHORIZED AND VALIDLY ISSUED,
FULLY PAID, NON-ASSESSABLE, AND, OTHER THAN WITH RESPECT TO THE COMPANY, FREE
AND CLEAR OF ALL LIENS OTHER THAN THOSE IN FAVOR OF THE ADMINISTRATIVE AGENT,
AND SUCH SECURITIES WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE STATE AND
FEDERAL LAWS CONCERNING THE ISSUANCE OF SECURITIES. SCHEDULE 9.8 SETS FORTH THE
AUTHORIZED CAPITAL SECURITIES OF EACH LOAN PARTY AS OF THE CLOSING DATE. ALL OF
THE ISSUED AND OUTSTANDING CAPITAL SECURITIES OF EACH WHOLLY-OWNED SUBSIDIARY
ARE, DIRECTLY OR INDIRECTLY, OWNED BY THE COMPANY. AS OF THE CLOSING DATE,
EXCEPT AS SET FORTH ON SCHEDULE 9.8, THERE ARE NO PRE-EMPTIVE OR OTHER
OUTSTANDING RIGHTS, OPTIONS, WARRANTS, CONVERSION RIGHTS OR OTHER SIMILAR
AGREEMENTS OR UNDERSTANDINGS FOR THE PURCHASE OR ACQUISITION OF ANY CAPITAL
SECURITIES OF ANY LOAN PARTY.
9.9
PENSION PLANS.
(A)
THE UNFUNDED LIABILITY OF ALL PENSION PLANS
DOES NOT IN THE AGGREGATE EXCEED TWENTY PERCENT OF THE TOTAL PLAN LIABILITY FOR
ALL SUCH PENSION PLANS. EACH PENSION PLAN COMPLIES IN ALL MATERIAL RESPECTS WITH
ALL APPLICABLE REQUIREMENTS OF LAW AND REGULATIONS. NO CONTRIBUTION FAILURE
UNDER SECTION 412