any provision of any
Organizational Document of any Credit Party or (iv) will require any approval of
stockholders or any approval or consent of any Person (other than a Governmental
Authority) except as have been obtained on or prior to the Closing Date or as
set forth on Schedule 6.3.
6.4
GOVERNMENTAL AND OTHER APPROVALS.
Except as set forth on Schedule 6.4 hereto and except for the recording of the
Mortgages and the filing of UCC financing statements, which shall be recorded
and filed, respectively, on, or as soon as practicable after, the Closing Date,
no order, consent, approval, license, authorization or validation of, or filing,
recording or registration with or exemption by, any Governmental Authority
(except as have been obtained or made on or prior to the Closing Date), is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Loan Document or (ii) the legality, validity,
binding effect or enforceability of any such Loan Document.
55
6.5
FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED LIABILITIES;
ETC.
(A)
FINANCIAL STATEMENTS.
THE HISTORICAL FINANCIAL STATEMENTS COPIES
OF WHICH HAVE BEEN FURNISHED TO ADMINISTRATIVE AGENT PRIOR TO THE DATE HEREOF,
PRESENT FAIRLY THE FINANCIAL CONDITION OF THE APPLICABLE CREDIT PARTY AS OF THE
DATE THEREOF.
THE HISTORICAL FINANCIAL STATEMENTS IDENTIFIED ON SCHEDULE 6.5(A)
AS AUDITED FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003 HAVE
BEEN EXAMINED BY DELOITTE & TOUCHE, INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS,
WHO DELIVERED A REPORT AND OPINION THAT IS NOT SUBJECT TO ANY "GOING CONCERN" OR
LIKE QUALIFICATION OR EXCEPTION OR ANY QUALIFICATION OR EXCEPTION AS TO THE
SCOPE OF SUCH AUDIT.
(B)
SOLVENCY.
ON AND AS OF THE CLOSING DATE, AFTER GIVING EFFECT TO
ALL INDEBTEDNESS (INCLUDING THE LOANS) BEING INCURRED, AND TO BE INCURRED (AND
THE USE OF PROCEEDS THEREOF), AND LIENS CREATED, AND TO BE CREATED, BY BORROWER
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, (I) THE SUM OF THE
ASSETS, AT A FAIR VALUATION, OF BORROWER AND EACH OTHER MATERIAL SUBSIDIARY WILL
EXCEED ITS DEBTS; (II) NEITHER BORROWER NOR ANY MATERIAL SUBSIDIARY HAS INCURRED
AND DOES NOT INTEND TO, NOR BELIEVES THAT IT WILL, INCUR DEBTS BEYOND ITS
ABILITY TO PAY SUCH DEBTS AS SUCH DEBTS MATURE; AND (III) BORROWER AND EACH
OTHER MATERIAL SUBSIDIARY WILL HAVE SUFFICIENT CAPITAL WITH WHICH TO CONDUCT ITS
BUSINESS.
FOR PURPOSES OF THIS SECTION 6.5(B) "DEBT" MEANS ANY LIABILITY ON A
CLAIM, AND "CLAIM" MEANS (Y) ANY RIGHT TO PAYMENT, WHETHER OR NOT SUCH A RIGHT
IS REDUCED TO JUDGMENT, LIQUIDATED, UNLIQUIDATED, FIXED, CONTINGENT, MATURED,
UNMATURED, DISPUTED, UNDISPUTED, LEGAL, EQUITABLE, SECURED, OR UNSECURED
(INCLUDING ALL OBLIGATIONS, IF ANY, UNDER ANY PLAN OR THE EQUIVALENT FOR
UNFUNDED PAST SERVICE LIABILITY, AND ANY OTHER UNFUNDED MEDICAL AND DEATH
BENEFITS) OR (Z) ANY RIGHT TO AN EQUITABLE REMEDY FOR BREACH OF PERFORMANCE IF
SUCH BREACH GIVES RISE TO A PAYMENT, WHETHER OR NOT SUCH RIGHT TO AN EQUITABLE
REMEDY IS REDUCED TO JUDGMENT, FIXED, CONTINGENT, MATURED, UNMATURED, DISPUTED,
UNDISPUTED, SECURED OR UNSECURED.
IN