AFFECTING
ANY OF THEIR PROPERTY EXCEPT AS WOULD NOT BE REASONABLY EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT;
(B)
EXECUTION AND BINDING EFFECT.
UPON
EXECUTION AND DELIVERY THEREOF, EACH LOAN DOCUMENT SHALL CONSTITUTE THE LEGAL,
VALID AND BINDING OBLIGATION OF EACH CREDIT PARTY WHICH IS A PARTY THERETO,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, EXCEPT AS THE ENFORCEABILITY THEREOF
MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR OTHER SIMILAR LAWS RELATING TO THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES;
(C)
PROPERTIES.
(I)
EACH CREDIT PARTY HAS GOOD AND
MARKETABLE TITLE TO ALL MATERIAL REAL PROPERTY OWNED OR PURPORTED TO BE OWNED BY
IT, IN EACH CASE FREE OF ALL LIENS OTHER THAN PERMITTED LIENS.
(II)
EACH CREDIT PARTY IS IN LAWFUL POSSESSION
OF A VALID AND SUBSISTING LEASEHOLD ESTATE IN AND TO ITS LEASEHOLD PROPERTIES
WHICH IT PURPORTS TO LEASE FREE AND CLEAR OF ALL LIENS OTHER THAN PERMITTED
LIENS.
(III)
EACH CREDIT PARTY ENJOYS PEACEFUL AND
UNDISTURBED POSSESSION OF, OR A LICENSE TO USE, ALL PROPERTY (SUBJECT ONLY TO
THE PERMITTED LIENS) THAT IS NECESSARY FOR THEIR RESPECTIVE BUSINESSES.
(IV)
SET FORTH ON SCHEDULE 4.1(C) IS A LIST, AS OF
THE DATE HEREOF, OF ALL REAL PROPERTY HELD, OR, TO THE KNOWLEDGE OF ANY CREDIT
PARTY, PLANNED TO BE HELD, BY ANY CREDIT PARTY, INDICATING IN EACH CASE WHETHER
THE RESPECTIVE PROPERTY IS (OR IS EXPECTED TO BE) OWNED OR LEASED, THE IDENTITY
OF THE OWNER OR LESSEE, THE LOCATION OF THE RESPECTIVE PROPERTY, IN THE CASE OF
REAL PROPERTY OWNED AND, IN THE CASE OF PROPERTY NOT YET OWNED OR LEASED, THE
ESTIMATED DATE OF ACQUISITION OR LEASING (IF KNOWN TO SUCH CREDIT PARTY ON THE
DATE HEREOF).
43
(V)
EACH CREDIT PARTY OWNS, OR IS LICENSED OR
OTHERWISE HAS THE RIGHT TO USE THE INTELLECTUAL PROPERTY NECESSARY TO OWN AND
OPERATE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS PRESENTLY CONDUCTED AND
PRESENTLY PLANNED TO BE CONDUCTED WITHOUT CONFLICT WITH THE RIGHTS OF OTHERS,
EXCEPT FOR SUCH INSTANCES OF NON-COMPLIANCE THAT, INDIVIDUALLY OR IN THE
AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(D)
FINANCIAL STATEMENTS; PROJECTIONS.
(I)
THE FINANCIAL STATEMENTS WERE PREPARED
IN CONFORMITY WITH GAAP AND FAIRLY PRESENT, IN ALL MATERIAL RESPECTS, THE
FINANCIAL POSITION, ON A CONSOLIDATED BASIS, OF THE PERSONS DESCRIBED IN SUCH
FINANCIAL STATEMENTS AS AT THE RESPECTIVE DATES THEREOF AND THE RESULTS OF
OPERATIONS AND CASH FLOWS, ON A CONSOLIDATED BASIS, OF THE ENTITIES DESCRIBED
THEREIN FOR EACH OF THE PERIODS THEN ENDED, SUBJECT, IN THE CASE OF ANY SUCH
UNAUDITED FINANCIAL STATEMENTS, TO CHANGES RESULTING FROM AUDIT AND NORMAL
YEAR-END ADJUSTMENTS (EXCEPT IN THE CASE OF THE FINANCIAL STATEMENTS FOR THE
INTERIM PERIOD FROM JANUARY 1, 2010 TO THE LAST DAY OF THE MONTH MOST RECENTLY
ENDED PRIOR TO THE CLOSING DATE, FOR THE LACK OF FOOTNOTES).
AS OF THE CLOSING
DATE, NEITHER THE BORROWER NOR ANY OF ITS SUBSIDIARIES HAS ANY CONTINGENT
LIABILITY OR LIABILITY FOR TAXES, LONG-TERM LEASE OR