AND THE
PRESENT VALUE OF ALL ACCUMULATED BENEFIT OBLIGATIONS OF ALL UNDERFUNDED PLANS
(BASED ON THE ASSUMPTIONS USED FOR PURPOSES OF STATEMENT OF FINANCIAL ACCOUNTING
STANDARDS NO. 87) DID NOT, AS OF THE DATE OF THE MOST RECENT FINANCIAL
STATEMENTS REFLECTING SUCH AMOUNTS, EXCEED BY MORE THAN $5,000,000 THE FAIR
MARKET VALUE OF THE ASSETS OF ALL SUCH UNDERFUNDED PLANS.
30
SECTION 3.11.
DISCLOSURE.
THE BORROWER HAS DISCLOSED TO THE LENDERS ALL
AGREEMENTS, INSTRUMENTS AND CORPORATE OR OTHER RESTRICTIONS TO WHICH IT OR ANY
OF ITS SUBSIDIARIES IS SUBJECT, AND ALL OTHER MATTERS KNOWN TO IT, THAT,
INDIVIDUALLY OR IN THE AGGREGATE, COULD REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT.
NONE OF THE REPORTS, FINANCIAL STATEMENTS,
CERTIFICATES OR OTHER INFORMATION FURNISHED BY OR ON BEHALF OF THE BORROWER TO
THE ADMINISTRATIVE AGENT OR ANY LENDER IN CONNECTION WITH THE NEGOTIATION OF
THIS AGREEMENT OR DELIVERED HEREUNDER (AS MODIFIED OR SUPPLEMENTED BY OTHER
INFORMATION SO FURNISHED) 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 BORROWER REPRESENTS ONLY
THAT SUCH INFORMATION WAS PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED
TO BE REASONABLE AT THE TIME.
SECTION 3.12.
SOLVENCY.
THE BORROWER AND ITS CONSOLIDATED SUBSIDIARIES HAVE
CAPITAL SUFFICIENT TO CARRY ON THEIR BUSINESS AND TRANSACTIONS AND ALL BUSINESS
AND TRANSACTIONS IN WHICH THEY ARE ABOUT TO ENGAGE AND ARE NOW SOLVENT AND ABLE
TO PAY THEIR RESPECTIVE INDEBTEDNESS AS SUCH INDEBTEDNESS MATURE, AND THE
BORROWER AND ITS CONSOLIDATED SUBSIDIARIES NOW OWN PROPERTY AND ASSETS HAVING A
VALUE, BOTH AT FAIR VALUATION AND AT PRESENT FAIR SALABLE VALUE, GREATER THAN
THE AMOUNT REQUIRED TO PAY THEIR EXISTING INDEBTEDNESS.
SECTION 3.13.
SUBSIDIARIES.
SET FORTH IN SCHEDULE 3.13 IS A COMPLETE AND
CORRECT LIST OF ALL OF THE SUBSIDIARIES OF THE BORROWER AS OF THE DATE HEREOF,
TOGETHER WITH, FOR EACH SUCH SUBSIDIARY, (A) THE JURISDICTION OF ORGANIZATION OF
SUCH SUBSIDIARY, (B) EACH PERSON HOLDING EQUITY INTERESTS OF SUCH SUBSIDIARY AND
(C) THE NATURE OF THE EQUITY INTERESTS HELD BY EACH SUCH PERSON AND THE
PERCENTAGE OF OWNERSHIP OF SUCH SUBSIDIARY REPRESENTED BY SUCH EQUITY INTERESTS.
EXCEPT AS DISCLOSED IN SCHEDULE 3.13, AS OF THE DATE HEREOF, (I) EACH OF THE
BORROWER AND ITS SUBSIDIARIES OWNS, FREE AND CLEAR OF LIENS (OTHER THAN LIENS
PERMITTED IN SECTION 6.02(B)), AND HAS THE UNENCUMBERED RIGHT TO VOTE, ALL
OUTSTANDING EQUITY INTERESTS IN EACH PERSON SHOWN TO BE HELD BY IT IN SCHEDULE
3.13, (II) ALL OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF EACH SUCH PERSON
ORGANIZED AS A CORPORATION IS VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND
(III) THERE ARE NO OUTSTANDING SUBSCRIPTIONS, OPTIONS, WARRANTS, COMMITMENTS,
PREEMPTIVE RIGHTS OR AGREEMENTS OF ANY KIND (INCLUDING ANY SHAREHOLDERS' OR
VOTING TRUST AGREEMENTS) FOR THE ISSUANCE, SALE, REGISTRATION OR VOTING OF, OR
SECURITIES CONVERTIBLE INTO, ANY ADDITIONAL SHARES OF CAPITAL STOCK OF