PROPERTIES, ASSETS,
OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE) OF THE COMPANY.
SECTION 3.02.
AUTHORIZATION; NO VIOLATION.
THE TRANSACTIONS ARE WITHIN EACH
LOAN PARTY'S CORPORATE OR PARTNERSHIP POWERS, HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE OR PARTNERSHIP ACTION, AND DO NOT CONTRAVENE (I) ANY LOAN
PARTY'S CHARTER, BY-LAWS OR OTHER CONSTITUTIVE DOCUMENTS OR (II) ANY LAW OR ANY
CONTRACTUAL RESTRICTION BINDING ON OR AFFECTING ANY LOAN PARTY.
SECTION 3.03.
GOVERNMENTAL CONSENTS.
NO AUTHORIZATION OR APPROVAL OR OTHER
ACTION BY, AND NO NOTICE TO OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR
REGULATORY BODY IS REQUIRED FOR THE DUE EXECUTION, DELIVERY AND PERFORMANCE BY
THE LOAN PARTIES OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
SECTION 3.04.
VALIDITY.
THIS AGREEMENT IS, AND THE OTHER LOAN DOCUMENTS WHEN
DELIVERED WILL BE, THE LEGAL, VALID AND BINDING OBLIGATIONS OF THE LOAN PARTIES
PARTY THERETO, ENFORCEABLE AGAINST SUCH LOAN PARTIES IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS, SUBJECT TO THE EFFECT OF ANY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR LAW AFFECTING CREDITORS'
RIGHTS GENERALLY AND TO THE EFFECT OF GENERAL PRINCIPLES OF EQUITY (REGARDLESS
OF WHETHER SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT
LAW).
48
SECTION 3.05.
LITIGATION.
THERE IS NO PENDING OR, TO THE BEST OF THE KNOWLEDGE
OF THE BORROWERS, THREATENED ACTION OR PROCEEDING AFFECTING THE COMPANY OR ANY
OF ITS SUBSIDIARIES BEFORE ANY COURT, GOVERNMENTAL AGENCY OR ARBITRATOR, WHICH
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE FINANCIAL
CONDITION OR OPERATIONS OF THE COMPANY AND THE SUBSIDIARIES, TAKEN AS A WHOLE,
OR WHICH PURPORTS TO AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 3.06.
FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE.
(A)
THE
CONSOLIDATED BALANCE SHEETS OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AT
DECEMBER 31, 2005, AND JUNE 30, 2006, AND THE RELATED CONSOLIDATED STATEMENTS OF
INCOME AND STOCKHOLDER'S EQUITY FOR THE FISCAL YEAR AND THE FISCAL QUARTER,
RESPECTIVELY, THEN ENDED, COPIES OF WHICH HAVE BEEN FURNISHED TO EACH LENDER,
PRESENT FAIRLY THE FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES AT DECEMBER 31, 2005, AND JUNE 30, 2006, AND THE RESULTS OF THE
OPERATIONS AND CHANGES IN FINANCIAL POSITION OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES FOR THE FISCAL YEAR AND THE FISCAL QUARTER, RESPECTIVELY, THEN
ENDED, IN CONFORMITY WITH GAAP CONSISTENTLY APPLIED, SUBJECT, IN THE CASE OF
SUCH QUARTERLY FINANCIAL STATEMENTS, TO NORMAL YEAR-END AUDIT ADJUSTMENTS AND TO
THE ABSENCE OF NOTES.
(B)
AS OF THE DATE HEREOF THERE HAS BEEN, SINCE DECEMBER 31, 2005, NO MATERIAL
ADVERSE CHANGE IN THE BUSINESS, OPERATIONS OR FINANCIAL CONDITION OF THE COMPANY
AND THE SUBSIDIARIES, TAKEN AS A WHOLE.
SECTION 3.07.
INVESTMENT COMPANY ACT.
THE COMPANY IS NOT (I) AN "INVESTMENT
COMPANY," (II) A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY" WHICH IS
REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR (III) TO THE
BEST KNOWLEDGE OF THE COMPANY, A COMPANY "CONTROLLED" BY ANY OTHER "INVESTMENT
COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY