NOTICE TO MATERIAL PERMIT FROM OR OTHER MATERIAL ACT BY OR
IN RESPECT OF, ANY GOVERNMENTAL AUTHORITY AND NO MATERIAL CONSENT OR MATERIAL
AUTHORIZATION OF, MATERIAL FILING WITH, MATERIAL NOTICE TO OR OTHER MATERIAL ACT
BY OR IN RESPECT OF ANY OTHER PERSON IS REQUIRED IN CONNECTION WITH THE
TRANSACTION, OR THE EXECUTION, DELIVERY, PERFORMANCE, VALIDITY OR ENFORCEABILITY
OF ANY OF THE TRANSACTION DOCUMENTATION EXCEPT CONSENTS, AUTHORIZATIONS, FILINGS
AND NOTICES WHICH HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT.
EACH ITEM OF TRANSACTION DOCUMENTATION HAS BEEN DULY EXECUTED AND DELIVERED ON
BEHALF OF EACH KMG PARTY THAT IS A PARTY THERETO.
EACH TRANSACTION DOCUMENT
CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF EACH KMG PARTY THAT IS A
PARTY THERETO, ENFORCEABLE AGAINST EACH SUCH KMG PARTY 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).
(E)
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE TRANSACTION
DOCUMENTATION WILL NOT VIOLATE IN ANY MATERIAL RESPECT ANY MATERIAL REQUIREMENT
OF LAW OR ANY MATERIAL CONTRACTUAL OBLIGATION OF KMG OR ANY OF ITS SUBSIDIARIES
(OTHER THAN HOLDINGS AND THE CONTRIBUTED SUBSIDIARIES) AND WILL NOT RESULT IN,
OR REQUIRE, THE CREATION OR IMPOSITION OF ANY LIEN ON ANY OF THE PROPERTIES OR
REVENUES OF HOLDINGS, THE BORROWER OR ANY OF ITS SUBSIDIARIES PURSUANT TO ANY
SUCH MATERIAL REQUIREMENT OF LAW OR ANY SUCH MATERIAL CONTRACTUAL OBLIGATION
(OTHER THAN THE LIENS CREATED BY THE SECURITY DOCUMENTS AND OTHER THAN PERMITTED
LIENS).
(F)
AS OF THE CLOSING DATE, NO LITIGATION, INVESTIGATION OR
PROCEEDING OF OR BEFORE ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY IS PENDING OR,
TO THE KNOWLEDGE OF HOLDINGS OR THE BORROWER, THREATENED BY OR AGAINST KMG OR
ANY OF ITS SUBSIDIARIES OR AGAINST ANY OF THEIR RESPECTIVE PROPERTIES OR
REVENUES WITH RESPECT TO ANY OF THE TRANSACTION DOCUMENTATION OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREBY.
62
(G)
THE BORROWER HAS DELIVERED TO THE ADMINISTRATIVE AGENT A COMPLETE
AND CORRECT COPY OF THE TRANSACTION AGREEMENTS AND THE SENIOR NOTE DOCUMENTATION
AND ANY SENIOR UNSECURED DEBT DOCUMENTS, ANY SUBORDINATED DEBT DOCUMENTS AND ANY
SENIOR NOTE REFINANCING DOCUMENTS, IN EACH CASE, INCLUDING ANY AMENDMENTS,
SUPPLEMENTS OR MODIFICATIONS WITH RESPECT TO ANY OF THE FOREGOING.
(H)
EACH OF HOLDINGS, THE BORROWER AND ANY SUBSIDIARY THEREOF EITHER
(I) CONSTITUTES AN "UNRESTRICTED SUBSIDIARY" UNDER AND AS DEFINED IN THE KMG
EXISTING CREDIT AGREEMENT OR (II) IS NOT A SUBSIDIARY OF KMG.
4.23
Real Estate.
As of the Closing Date, Schedule 4.23
includes a
list of all real property that has a fair market value (as determined by the
Borrower in good faith without the need to procure appraisals or update any
existing appraisals) in excess of $25,000,000 and located within the United
States and (i) owned by any Loan Party or its Subsidiaries in fee simple or (ii)
leased by any Loan Party or