SUCH CORPORATION, PARTNERSHIP OR
LIMITED LIABILITY COMPANY; (4) RESULT IN A BREACH OF OR CONSTITUTE A DEFAULT
UNDER ANY INDENTURE OR LOAN OR CREDIT AGREEMENT OR ANY OTHER MATERIAL AGREEMENT,
LEASE, OR INSTRUMENT TO WHICH SUCH CORPORATION, PARTNERSHIP OR LIMITED LIABILITY
COMPANY IS A PARTY OR BY WHICH IT OR ITS PROPERTIES MAY BE BOUND OR AFFECTED;
(5) RESULT IN, OR REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN, UPON OR WITH
RESPECT TO ANY OF THE PROPERTIES NOW OWNED OR HEREAFTER ACQUIRED BY SUCH
CORPORATION, PARTNERSHIP OR LIMITED LIABILITY COMPANY; AND (6) CAUSE SUCH
CORPORATION, PARTNERSHIP OR LIMITED LIABILITY COMPANY TO BE IN DEFAULT, IN ANY
MATERIAL RESPECT, UNDER ANY SUCH LAW, RULE, REGULATION, ORDER, WRIT, JUDGMENT,
INJUNCTION, DECREE, DETERMINATION, OR AWARD OR ANY SUCH INDENTURE, AGREEMENT,
LEASE OR INSTRUMENT.
SECTION 4.03
LEGALLY ENFORCEABLE AGREEMENT.
THIS AGREEMENT IS, AND EACH OF THE
OTHER LOAN DOCUMENTS WHEN DELIVERED UNDER THIS AGREEMENT WILL BE LEGAL, VALID,
AND BINDING OBLIGATIONS OF THE BORROWER OR EACH GUARANTOR, AS THE CASE MAY BE,
ENFORCEABLE AGAINST THE
43
BORROWER OR EACH GUARANTOR, AS THE CASE MAY BE, IN ACCORDANCE WITH THEIR
RESPECTIVE TERMS, EXCEPT TO THE EXTENT THAT SUCH ENFORCEMENT MAY BE LIMITED BY
APPLICABLE BANKRUPTCY, INSOLVENCY, AND OTHER SIMILAR LAWS AFFECTING CREDITORS'
RIGHTS GENERALLY.
SECTION 4.04
FINANCIAL STATEMENTS.
THE CONSOLIDATED BALANCE SHEET OF THE
BORROWER AND ITS SUBSIDIARIES AS AT MARCH 31, 2005, AND THE CONSOLIDATED
STATEMENTS OF OPERATIONS, CASH FLOW AND CHANGES TO STOCKHOLDERS' EQUITY OF THE
BORROWER AND ITS SUBSIDIARIES FOR THE PERIOD OF TWO FISCAL QUARTERS ENDED
MARCH 31, 2005, ARE COMPLETE AND CORRECT AND FAIRLY PRESENT AS AT SUCH DATE THE
FINANCIAL CONDITION OF THE BORROWER AND ITS SUBSIDIARIES AND THE RESULTS OF
THEIR OPERATIONS FOR THE PERIODS COVERED BY SUCH STATEMENTS, ALL IN ACCORDANCE
WITH GAAP CONSISTENTLY APPLIED (SUBJECT TO YEAR-END ADJUSTMENTS), AND SINCE
MARCH 31, 2005, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE CONDITION
(FINANCIAL OR OTHERWISE), BUSINESS, OR OPERATIONS OF THE BORROWER AND ITS
SUBSIDIARIES.
THERE ARE NO LIABILITIES OF THE BORROWER OR ANY SUBSIDIARY, FIXED
OR CONTINGENT, WHICH ARE MATERIAL BUT ARE NOT REFLECTED IN THE FINANCIAL
STATEMENTS OR IN THE NOTES THERETO, OTHER THAN LIABILITIES ARISING IN THE
ORDINARY COURSE OF BUSINESS SINCE MARCH 31, 2005.
NO INFORMATION, EXHIBIT, OR
REPORT FURNISHED BY THE BORROWER TO ANY LENDER IN CONNECTION WITH THE
NEGOTIATION OF THIS AGREEMENT, TAKEN TOGETHER, CONTAINED ANY MATERIAL
MISSTATEMENT OF FACT OR OMITTED TO STATE A MATERIAL FACT OR ANY FACT NECESSARY
TO MAKE THE STATEMENTS CONTAINED THEREIN NOT MATERIALLY MISLEADING.
SECTION 4.05
LABOR DISPUTES AND ACTS OF GOD.
NEITHER THE BUSINESS NOR THE
PROPERTIES OF THE BORROWER OR ANY SUBSIDIARY OR ANY GUARANTOR ARE AFFECTED BY
ANY FIRE, EXPLOSION, ACCIDENT, STRIKE, LOCKOUT, OR OTHER LABOR DISPUTE, DROUGHT,
STORM, HAIL, EARTHQUAKE, EMBARGO, ACT OF GOD OR OF THE PUBLIC ENEMY, OR OTHER
CASUALTY (WHETHER OR NOT COVERED BY INSURANCE), MATERIALLY AND ADVERSELY
AFFECTING SUCH BUSINESS OR PROPERTIES OR THE OPERATION OF THE BORROWER OR SUCH
SUBSIDIARY OR SUCH GUARANTOR.