THE MOST CURRENT EXECUTED SUPPLEMENT THERETO AS
OF THE RESTATEMENT EFFECTIVE DATE.
THE PENSION FUND UNDER EACH CANADIAN PENSION
PLAN IS EXEMPT FROM THE PAYMENT OF ANY INCOME TAX AND, TO THE KNOWLEDGE OF THE
LOAN PARTIES, THERE ARE NO TAXES, PENALTIES OR INTEREST OWING IN RESPECT OF ANY
SUCH PENSION FUND.
ALL MATERIAL REPORTS AND DISCLOSURES RELATING TO THE
CANADIAN PENSION PLANS REQUIRED BY SUCH PLANS AND ANY REQUIREMENT OF LAW TO BE
FILED OR DISTRIBUTED HAVE BEEN FILED OR DISTRIBUTED IN A TIMELY MANNER.
SECTION 3.11.
DISCLOSURE.
NEITHER THE INFORMATION MEMORANDUM NOR ANY OF THE
OTHER REPORTS, FINANCIAL STATEMENTS, CERTIFICATES OR OTHER INFORMATION FURNISHED
BY OR ON BEHALF OF ANY LOAN PARTY TO THE ADMINISTRATIVE AGENT OR ANY LENDER IN
CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (AS
MODIFIED OR SUPPLEMENTED BY OTHER INFORMATION SO FURNISHED AND EXCLUDING
INFORMATION OF A GENERAL ECONOMIC OR INDUSTRY-SPECIFIC NATURE), WHEN TAKEN AS A
WHOLE, CONTAINS ANY MATERIAL MISSTATEMENT OF FACT OR OMITS TO STATE ANY MATERIAL
FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING, PROVIDED THAT WITH RESPECT TO
PROJECTED FINANCIAL INFORMATION, THE PARENT BORROWER AND HOLDINGS REPRESENT ONLY
THAT SUCH INFORMATION WAS PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED
TO BE REASONABLE AT THE TIME DELIVERED AND, IF SUCH PROJECTED FINANCIAL
INFORMATION WAS DELIVERED PRIOR TO THE RESTATEMENT EFFECTIVE DATE, AS OF THE
RESTATEMENT EFFECTIVE DATE.
SECTION 3.12.
SOLVENCY.
(A)
TO THE KNOWLEDGE OF ANY LOAN PARTY OR ANY OF ITS
SUBSIDIARIES, IMMEDIATELY AFTER THE CONSUMMATION OF THE TRANSACTIONS TO OCCUR ON
THE RESTATEMENT EFFECTIVE DATE, (I) THE FAIR VALUE OF THE ASSETS OF EACH LOAN
PARTY, AT A FAIR VALUATION, WILL EXCEED ITS DEBTS AND LIABILITIES, SUBORDINATED,
CONTINGENT OR OTHERWISE, (II) THE PRESENT FAIR SALEABLE VALUE OF THE PROPERTY OF
EACH LOAN PARTY WILL BE GREATER THAN THE AMOUNT THAT WILL BE REQUIRED TO PAY THE
PROBABLE LIABILITY OF ITS DEBTS AND OTHER LIABILITIES, SUBORDINATED, CONTINGENT
OR OTHERWISE, AS SUCH DEBTS AND OTHER LIABILITIES BECOME ABSOLUTE AND MATURED,
(III) EACH LOAN PARTY WILL BE ABLE TO PAY ITS DEBTS AND LIABILITIES,
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SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND LIABILITIES BECOME
ABSOLUTE AND MATURED AND SHALL NOT HAVE CEASED TO PAY ITS CURRENT OBLIGATIONS IN
THE ORDINARY COURSE OF BUSINESS AS THEY GENERALLY BECOME DUE AND (IV) EACH LOAN
PARTY WILL NOT HAVE UNREASONABLY SMALL CAPITAL WITH WHICH TO CONDUCT THE
BUSINESS IN WHICH IT IS ENGAGED AS SUCH BUSINESS IS NOW CONDUCTED AND IS
PROPOSED TO BE CONDUCTED AFTER THE RESTATEMENT EFFECTIVE DATE, IN EACH CASE
AFTER GIVING EFFECT TO ANY RIGHTS OF INDEMNIFICATION, CONTRIBUTION OR
SUBROGATION ARISING AMONG THE SUBSIDIARY LOAN PARTIES PURSUANT TO ANY LOAN
DOCUMENT OR BY LAW.
(B)
TO THE KNOWLEDGE OF ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, NO LOAN
PARTY INTENDS TO, OR WILL PERMIT ANY OF ITS SUBSIDIARIES TO, AND NO LOAN PARTY
BELIEVES THAT IT OR ANY OF ITS