BORROWER OR ANY
SUBSIDIARY FREE AND CLEAR OF ALL LIENS OTHER THAN LIENS CREATED BY THE
COLLATERAL DOCUMENTS.
THERE ARE NO OUTSTANDING COMMITMENTS OR OTHER OBLIGATIONS
OF THE BORROWER OR ANY SUBSIDIARY TO ISSUE, AND NO OPTIONS, WARRANTS OR OTHER
RIGHTS OF ANY PERSON TO ACQUIRE, ANY SHARES OF ANY CLASS OF CAPITAL STOCK OR
OTHER EQUITY INTERESTS OF THE BORROWER OR ANY SUBSIDIARY.
SECTION 3.02.
AUTHORIZATION; ENFORCEABILITY.
THE TRANSACTIONS ARE WITHIN THE
EACH LOAN PARTY'S CORPORATE POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE AND, IF REQUIRED, SHAREHOLDER ACTION.
THE LOAN DOCUMENTS TO
WHICH EACH LOAN PARTY IS A PARTY HAVE BEEN DULY EXECUTED AND DELIVERED BY SUCH
LOAN PARTY AND CONSTITUTE A LEGAL, VALID AND BINDING OBLIGATION OF SUCH LOAN
PARTY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING
CREDITORS' RIGHTS GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY,
REGARDLESS OF WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 3.03.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE TRANSACTIONS (A) DO
NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH, OR ANY
OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY, EXCEPT SUCH AS HAVE BEEN OBTAINED
OR MADE AND ARE IN FULL FORCE AND EFFECT AND EXCEPT FOR FILINGS NECESSARY TO
PERFECT LIENS CREATED PURSUANT TO THE LOAN DOCUMENTS, (B) WILL NOT VIOLATE ANY
APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS OR OTHER ORGANIZATIONAL
DOCUMENTS OF THE BORROWER OR
42
ANY OF ITS SUBSIDIARIES OR ANY ORDER OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT
VIOLATE OR RESULT IN A DEFAULT UNDER ANY INDENTURE, MATERIAL AGREEMENT OR OTHER
MATERIAL 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, EXCEPT LIENS CREATED PURSUANT TO THE LOAN DOCUMENTS.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
BORROWER 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, 2006 REPORTED ON BY DELOITTE & TOUCHE LLP,
INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE FISCAL QUARTER AND
THE PORTION OF THE FISCAL YEAR ENDED JUNE 30, 2007, 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
BORROWER 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, 2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE
BUSINESS, ASSETS, OPERATIONS OR CONDITION, FINANCIAL OR OTHERWISE,