SCHEDULE 3.11 SETS FORTH, AS OF
THE EFFECTIVE DATE, THE NAME AND JURISDICTION OF ORGANIZATION OF, AND THE
PERCENTAGE OF EACH CLASS OF EQUITY INTERESTS OWNED BY THE BORROWER OR ANY
SUBSIDIARY IN, (A) EACH SUBSIDIARY AND (B) EACH JOINT VENTURE IN WHICH THE
BORROWER OR ANY SUBSIDIARY OWNS ANY EQUITY INTERESTS, AND IDENTIFIES EACH
SUBSIDIARY LOAN PARTY AND EACH MATERIAL SUBSIDIARY.
SECTION 3.12.
DISCLOSURE.
THE BORROWER HAS DISCLOSED TO THE LENDERS ALL
AGREEMENTS, INSTRUMENTS AND CORPORATE OR OTHER RESTRICTIONS TO WHICH THE
BORROWER OR ANY SUBSIDIARY IS SUBJECT, AND ALL OTHER MATTERS KNOWN TO THE
BORROWER, THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD REASONABLY BE EXPECTED
TO RESULT IN A MATERIAL ADVERSE EFFECT.
ALL WRITTEN OR FORMALLY PRESENTED
INFORMATION, INCLUDING THE CONFIDENTIAL INFORMATION MEMORANDUM, OTHER THAN ANY
PROJECTIONS AND INFORMATION OF A GENERAL ECONOMIC OR GENERAL INDUSTRY NATURE,
FURNISHED BY OR ON BEHALF OF, THE BORROWER OR ANY SUBSIDIARY TO THE
ADMINISTRATIVE AGENT, ANY OF ITS AFFILIATES OR ANY LENDER PURSUANT TO OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, TAKEN AS A WHOLE
TOGETHER WITH ALL OTHER WRITTEN INFORMATION SO DELIVERED ON OR PRIOR TO ANY DATE
OF DETERMINATION AND ALL INFORMATION CONTAINED IN REGULAR OR PERIODIC REPORTS
FILED BY OR ON BEHALF OF THE BORROWER WITH THE SEC ON OR PRIOR TO SUCH DATE IS
(OR WILL WHEN FURNISHED BE) COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS AND
DOES NOT (OR WILL NOT WHEN FURNISHED) CONTAIN ANY UNTRUE STATEMENT OF MATERIAL
FACT OR OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED THEREIN NOT MATERIALLY MISLEADING IN LIGHT OF THE CIRCUMSTANCES UNDER
WHICH SUCH STATEMENTS ARE MADE; PROVIDED THAT, WITH RESPECT TO FORECASTS OR
PROJECTED FINANCIAL INFORMATION, THE BORROWER REPRESENTS ONLY THAT SUCH
INFORMATION WAS PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED BY IT TO
BE REASONABLE AT THE TIME SO FURNISHED AND, IF FURNISHED PRIOR TO THE EFFECTIVE
DATE, AS OF THE EFFECTIVE DATE (IT BEING UNDERSTOOD BY THE ADMINISTRATIVE AGENT
AND THE LENDERS THAT ANY SUCH PROJECTIONS ARE SUBJECT TO SIGNIFICANT
UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE CONTROL OF THE
BORROWER OR ITS SUBSIDIARIES, THAT NO ASSURANCES CAN BE GIVEN THAT SUCH
PROJECTIONS WILL BE REALIZED AND THAT ACTUAL RESULTS MAY DIFFER MATERIALLY FROM
SUCH PROJECTIONS).
SECTION 3.13.
COLLATERAL MATTERS.
THE GUARANTEE AND COLLATERAL AGREEMENT, UPON
EXECUTION AND DELIVERY THEREOF BY THE PARTIES THERETO, WILL CREATE IN FAVOR OF
THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE SECURED PARTIES, A VALID AND
ENFORCEABLE SECURITY INTEREST IN THE COLLATERAL (AS DEFINED THEREIN) AND
(I) WHEN THE COLLATERAL (AS DEFINED THEREIN) CONSTITUTING CERTIFICATED
SECURITIES (AS DEFINED IN THE UNIFORM COMMERCIAL CODE) IS DELIVERED TO THE
ADMINISTRATIVE AGENT, TOGETHER WITH INSTRUMENTS OF TRANSFER DULY ENDORSED IN
BLANK, THE GUARANTEE AND COLLATERAL AGREEMENT WILL CONSTITUTE A FULLY PERFECTED
SECURITY INTEREST IN ALL RIGHT, TITLE AND INTEREST OF THE
60
PLEDGORS THEREUNDER IN SUCH COLLATERAL, PRIOR AND SUPERIOR IN RIGHT TO ANY OTHER
PERSON, AND (II) WHEN