CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW); AND (III) REQUIREMENTS
OF REASONABLENESS, GOOD FAITH AND FAIR DEALING.
5.3.
NO CONFLICT; GOVERNMENT CONSENT.
NEITHER THE
EXECUTION AND DELIVERY BY THE BORROWER OR ITS SUBSIDIARIES, AS APPLICABLE, OF
THE LOAN DOCUMENTS TO WHICH SUCH PERSON IS A PARTY, NOR THE CONSUMMATION OF THE
TRANSACTIONS THEREIN CONTEMPLATED, NOR COMPLIANCE WITH THE PROVISIONS THEREOF
WILL VIOLATE (I) ANY LAW, RULE, REGULATION, ORDER, WRIT, JUDGMENT, INJUNCTION,
DECREE OR AWARD BINDING ON THE BORROWER OR ANY OF ITS SUBSIDIARIES OR (II) THE
BORROWER'S OR ANY SUBSIDIARY'S ARTICLES OR CERTIFICATE OF INCORPORATION,
PARTNERSHIP AGREEMENT, CERTIFICATE OF PARTNERSHIP, ARTICLES OR CERTIFICATE OF
ORGANIZATION, BY-LAWS, OR OPERATING AGREEMENT OR OTHER MANAGEMENT AGREEMENT, AS
THE CASE MAY BE, OR (III) THE PROVISIONS OF ANY INDENTURE, MATERIAL INSTRUMENT
OR MATERIAL AGREEMENT TO WHICH THE BORROWER OR ANY OF ITS SUBSIDIARIES IS A
PARTY OR IS SUBJECT, OR BY WHICH IT, OR ITS PROPERTY, IS BOUND, OR CONFLICT
WITH, OR CONSTITUTE A DEFAULT THEREUNDER, OR RESULT IN, OR REQUIRE, THE CREATION
OR IMPOSITION OF ANY LIEN (OTHER THAN LIENS SECURING THE SECURED OBLIGATIONS)
IN, OF OR ON THE PROPERTY OF THE BORROWER OR A SUBSIDIARY PURSUANT TO THE TERMS
OF, ANY SUCH INDENTURE, INSTRUMENT OR AGREEMENT.
EXCEPT FOR THE FILING OF THE
RELEVANT COLLATERAL DOCUMENTS WITH THE APPLICABLE GOVERNMENTAL AUTHORITIES AND
EXCEPT AS DISCLOSED IN SECTION 4.9 OF THE PLEDGE AND SECURITY AGREEMENT, NO
ORDER, CONSENT, ADJUDICATION, APPROVAL, LICENSE, AUTHORIZATION, OR VALIDATION
OF, OR FILING, RECORDING OR REGISTRATION WITH, OR EXEMPTION BY, OR OTHER ACTION
IN RESPECT OF ANY GOVERNMENTAL OR PUBLIC BODY OR AUTHORITY, OR ANY SUBDIVISION
THEREOF, WHICH HAS NOT BEEN OBTAINED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES,
IS REQUIRED TO BE OBTAINED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THE LOAN DOCUMENTS, THE BORROWINGS
UNDER THIS AGREEMENT, THE PAYMENT AND PERFORMANCE BY THE BORROWER OF THE
OBLIGATIONS OR THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF ANY
OF THE LOAN DOCUMENTS.
5.4.
FINANCIAL STATEMENTS.
THE DECEMBER 31, 2008
AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES
HERETOFORE DELIVERED TO THE ADMINISTRATIVE AGENT AND THE LENDERS WERE PREPARED
IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES IN EFFECT ON THE
DATE SUCH STATEMENTS WERE PREPARED AND FAIRLY PRESENT THE CONSOLIDATED FINANCIAL
CONDITION AND OPERATIONS OF THE BORROWER AND ITS SUBSIDIARIES AT SUCH DATE AND
THE CONSOLIDATED RESULTS OF THEIR OPERATIONS FOR THE PERIOD THEN ENDED.
5.5.
MATERIAL ADVERSE CHANGE.
SINCE DECEMBER 31,
2008, THERE HAS BEEN NO CHANGE IN THE BUSINESS, PROPERTY, PROSPECTS, CONDITION
(FINANCIAL OR OTHERWISE) OR RESULTS OF OPERATIONS OF THE BORROWER, ANY
GUARANTOR, OR THE BORROWER AND ITS SUBSIDIARIES TAKEN TOGETHER, IN EACH CASE
WHICH COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.6.
TAXES.
THE BORROWER AND ITS SUBSIDIARIES HAVE
FILED ALL UNITED STATES FEDERAL TAX RETURNS AND ALL OTHER MATERIAL TAX RETURNS
WHICH ARE REQUIRED TO BE FILED AND HAVE PAID ALL TAXES DUE PURSUANT TO
45
SAID