DELIVERED WILL CONSTITUTE, A LEGAL, VALID AND BINDING OBLIGATION OF THE
BORROWER AND EACH SUBSIDIARY (TO THE EXTENT THE BORROWER OR SUCH SUBSIDIARY IS A
PARTY THERETO) ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, MORATORIUM OR SIMILAR LAWS AFFECTING THE ENFORCEMENT OF
CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES (WHETHER
ENFORCEMENT IS SOUGHT BY PROCEEDINGS IN EQUITY OR AT LAW).
3.4
NO LEGAL BAR.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, THE BORROWINGS HEREUNDER AND THE USE OF
THE PROCEEDS THEREOF WILL NOT
34
VIOLATE ANY REQUIREMENT OF LAW OR MATERIAL CONTRACTUAL OBLIGATION OF THE
BORROWER OR ANY SUBSIDIARY, AND WILL NOT RESULT IN, OR REQUIRE, THE CREATION OR
IMPOSITION OF ANY LIEN ON ANY OF ITS PROPERTIES OR REVENUES PURSUANT TO ANY SUCH
REQUIREMENT OF LAW OR MATERIAL CONTRACTUAL OBLIGATION, EXCEPT PURSUANT TO THE
LOAN DOCUMENTS.
3.5
NO MATERIAL LITIGATION.
EXCEPT AS SET FORTH IN SCHEDULE 3.5, NO
LITIGATION, INVESTIGATION OR PROCEEDING OF OR BEFORE ANY ARBITRATOR OR
GOVERNMENTAL AUTHORITY IS PENDING OR, TO THE KNOWLEDGE OF THE BORROWER,
THREATENED (A) BY OR AGAINST THE BORROWER OR ANY SUBSIDIARY OR AGAINST ANY OF
ITS OR THEIR PROPERTIES OR REVENUES OR BY OR AGAINST ANY AFFILIATE OF THE
BORROWER OR ANY SUBSIDIARY, WITH RESPECT TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR (B) BY OR
AGAINST THE BORROWER OR ANY SUBSIDIARY OR AGAINST ANY OF ITS OR THEIR PROPERTIES
OR REVENUES WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
3.6
OWNERSHIP OF PROPERTY; LIENS; CONDITION OF PROPERTIES.
THE
BORROWER AND EACH SUBSIDIARY HAS GOOD AND MARKETABLE TITLE TO ALL PROPERTIES
PURPORTED TO BE OWNED THEREBY, FREE AND CLEAR OF ANY LIENS, EXCEPT THOSE
PERMITTED BY SECTION 6.3.
THE PROPERTY AND ASSETS OF THE BORROWER AND ITS
SUBSIDIARIES CONSTITUTE ALL PROPERTY AND ASSETS NECESSARY FOR THE BUSINESS OF
THE BORROWER AND ITS SUBSIDIARIES, ARE IN GOOD ORDER AND REPAIR (ORDINARY WEAR
AND TEAR AND CASUALTY EXCEPTED) AND ARE FULLY COVERED BY THE INSURANCE REQUIRED
UNDER THE LOAN DOCUMENTS.
NEITHER THE BORROWER NOR ANY SUBSIDIARY HAS USED (OR
PERMITTED THE FILING OF ANY FINANCING STATEMENT UNDER) ANY LEGAL OR OPERATING
NAME AT ANY TIME DURING THE FIVE YEARS IMMEDIATELY PRECEDING THE EXECUTION OF
THIS AGREEMENT, EXCEPT AS IDENTIFIED ON SCHEDULE 3.6.
3.7
ENVIRONMENTAL MATTERS.
EXCEPT AS SET FORTH IN SCHEDULE 3.7, AND
EXCEPT FOR THE EXISTENCE OF THE SAN GABRIEL VALLEY SITE LIABILITIES:
(A)
EACH OF THE BORROWER AND ITS SUBSIDIARIES AND ANY PROPERTY OR
FACILITY, OR THE BUSINESSES CONDUCTED AT SUCH PROPERTIES OR FACILITIES, OWNED OR
OPERATED, OR TO THE KNOWLEDGE OF THE BORROWER, PREVIOUSLY OWNED OR OPERATED, BY
THE BORROWER OR ITS SUBSIDIARIES, HAS COMPLIED WITH AND IS IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH ALL ENVIRONMENTAL AND SAFETY REQUIREMENTS;
(B)
THERE ARE NO CONDITIONS OF CONTAMINATION BY, NOR IS THERE A
PRESENT OR THREATENED MATERIAL RELEASE