ANY ORDER
OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE OR RESULT IN A DEFAULT UNDER
ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON THE BORROWER OR ANY OF
ITS SUBSIDIARIES OR ITS ASSETS, OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE
ANY PAYMENT TO BE MADE BY THE BORROWER OR ANY OF ITS SUBSIDIARIES, AND (D) WILL
NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSET OF THE
BORROWER OR ANY OF ITS SUBSIDIARIES.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
COMPANY HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET
AND STATEMENTS OF INCOME, STOCKHOLDERS EQUITY AND CASH FLOWS (I) AS OF AND FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2008, REPORTED ON BY BDO SEIDMAN, LLP,
INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE FISCAL QUARTER AND
THE PORTION OF THE FISCAL YEAR ENDED SEPTEMBER 30, 2009, CERTIFIED BY ITS CHIEF
FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE
COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS
IN ACCORDANCE WITH GAAP, SUBJECT TO YEAR‐END AUDIT ADJUSTMENTS AND THE ABSENCE
OF FOOTNOTES IN THE CASE OF THE STATEMENTS REFERRED TO IN CLAUSE (II) ABOVE.
(B)
SINCE DECEMBER 31, 2008, THERE HAS BEEN NO MATERIAL ADVERSE
CHANGE IN THE BUSINESS, ASSETS, OPERATIONS, PROSPECTS OR CONDITION, FINANCIAL OR
OTHERWISE, OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
SECTION 3.05.
PROPERTIES.
(A)
EACH OF THE BORROWER AND ITS SUBSIDIAR­IES HAS
GOOD TITLE TO, OR VALID LEASEHOLD INTERESTS IN, ALL ITS REAL AND PERSONAL
PROPERTY MATERIAL TO ITS BUSINESS, EXCEPT FOR MINOR DEFECTS IN TITLE THAT DO NOT
INTERFERE WITH ITS ABILITY TO CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED OR TO
UTILIZE SUCH PROPERTIES FOR THEIR INTENDED PURPOSES.
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(B)
EACH OF THE BORROWER AND ITS SUBSIDIARIES OWNS, OR IS
LICENSED TO USE, ALL TRADEMARKS, TRADENAMES, COPYRIGHTS, PATENTS AND OTHER
INTELLECTUAL PROPERTY MATERIAL TO ITS BUSINESS, AND THE USE THEREOF BY THE
BORROWER AND ITS SUBSIDIARIES DOES NOT INFRINGE UPON THE RIGHTS OF ANY OTHER
PERSON, EXCEPT FOR ANY SUCH INFRINGEMENTS THAT, INDIVIDUALLY OR IN THE
AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT.
(C)
AS OF THE EFFECTIVE DATE, EACH SUBSIDIARY OF THE BORROWER,
INCLUDING ITS OWNERSHIP, IS DESCRIBED ON SCHEDULE 3.05 HERETO.
EACH SUBSIDIARY
OF THE BORROWER HAS AND WILL HAVE ALL REQUISITE POWER TO OWN OR LEASE THE
PROPERTIES MATERIAL TO ITS BUSINESS AND TO CARRY ON ITS BUSINESS AS NOW BEING
CONDUCTED AND AS PROPOSED TO BE CONDUCTED.
ALL OUTSTANDING SHARES OF EQUITY
INTERESTS OF EACH CLASS OF EACH SUBSIDIARY OF THE BORROWER HAVE BEEN AND WILL BE
VALIDLY ISSUED AND ARE AND WILL BE FULLY PAID AND NONASSESSABLE AND, EXCEPT AS
OTHERWISE INDICATED IN SCHEDULE 3.05 HERETO OR DISCLOSED IN WRITING TO THE
ADMINISTRATIVE AGENT AND THE LENDERS FROM TIME TO TIME, ARE AND WILL BE OWNED,
BENEFICIALLY