UNDER WHICH THEY WERE MADE, NOT MISLEADING IN ANY MATERIAL RESPECT; PROVIDED
THAT, WITH RESPECT TO PROJECTED FINANCIAL INFORMATION OR OTHER FORWARD-LOOKING
STATEMENTS, THE BORROWER REPRESENTS ONLY THAT SUCH INFORMATION WAS PREPARED IN
GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED TO BE REASONABLE AT THE TIME PREPARED
(IT BEING UNDERSTOOD THAT PROJECTIONS AND FORWARD-LOOKING STATEMENTS ARE BY
THEIR NATURE INHERENTLY UNCERTAIN, AND ACTUAL RESULTS MAY VARY MATERIALLY FROM
ANY PROJECTIONS OR SUCH STATEMENTS).
37
SECTION 3.12. SUBSIDIARIES, ETC. SET FORTH IN SCHEDULE 3.12 HERETO IS A COMPLETE
AND CORRECT LIST, AS OF THE DATE HEREOF, OF ALL OF THE SUBSIDIARIES OF THE
BORROWER, TOGETHER WITH, FOR EACH SUCH SUBSIDIARY, (I) THE JURISDICTION OF
ORGANIZATION OF SUCH SUBSIDIARY, (II) EACH PERSON HOLDING OWNERSHIP INTERESTS IN
SUCH SUBSIDIARY AND (III) THE NATURE OF THE OWNERSHIP INTERESTS HELD BY EACH
SUCH PERSON AND THE PERCENTAGE OF OWNERSHIP OF SUCH SUBSIDIARY REPRESENTED BY
SUCH OWNERSHIP INTERESTS. EXCEPT AS DISCLOSED IN SCHEDULE 3.12 HERETO, (X) EACH
OF THE BORROWER AND ITS SUBSIDIARIES OWNS, FREE AND CLEAR OF LIENS (OTHER THAN
LIENS CREATED PURSUANT TO THE SECURITY DOCUMENTS AND OTHER THAN PERMITTED
ENCUMBRANCES), AND HAS THE UNENCUMBERED RIGHT TO VOTE, ALL OUTSTANDING OWNERSHIP
INTERESTS IN EACH PERSON SHOWN TO BE HELD BY IT IN SCHEDULE 3.12 HERETO, (Y) ALL
OF THE ISSUED AND OUTSTANDING CAPITAL STOCK OF EACH SUCH PERSON ORGANIZED AS A
CORPORATION IS VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND (Z) THERE ARE NO
OUTSTANDING EQUITY RIGHTS WITH RESPECT TO SUCH PERSON.
SECTION 3.13. REAL PROPERTY. SET FORTH ON SCHEDULE 3.13 HERETO IS A LIST, AS OF
THE EFFECTIVE DATE, OF ALL OF THE REAL PROPERTY OWNED OR LEASED BY THE BORROWER
AND ITS SUBSIDIARIES, INDICATING IN EACH CASE WHETHER THE RESPECTIVE PROPERTY IS
OWNED OR LEASED, THE LOCATION OF THE RESPECTIVE PROPERTY, AND THE BOOK VALUE OF
EACH PROPERTY.
SECTION 3.14. SWAP AGREEMENTS. SET FORTH ON SCHEDULE 3.14 HERETO IS A LIST, AS
OF THE EFFECTIVE DATE, OF ALL SWAP AGREEMENTS OF THE BORROWER AND EACH
SUBSIDIARY, THE MATERIAL TERMS THEREOF (INCLUDING THE TYPE, TERM, EFFECTIVE
DATE, TERMINATION DATE AND NOTIONAL AMOUNTS OR VOLUMES), ALL CREDIT SUPPORT
AGREEMENTS RELATING THERETO (INCLUDING ANY MARGIN REQUIRED OR SUPPLIED), AND THE
COUNTER PARTY TO EACH SUCH AGREEMENT.
ARTICLE IV
Conditions
SECTION 4.01. EFFECTIVE DATE. THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE
BUSINESS DAY WHEN EACH OF THE FOLLOWING CONDITIONS PRECEDENT SHALL HAVE BEEN
SATISFIED IN A MANNER REASONABLY SATISFACTORY TO THE AGENT (OR WAIVED IN
ACCORDANCE WITH SECTION 9.02):
(A)
THE ADMINISTRATIVE AGENT (OR ITS COUNSEL) SHALL HAVE RECEIVED FROM
EACH PARTY HERETO A COUNTERPART OF THIS AGREEMENT, THE NOTES, SUBSIDIARY
GUARANTEES AND THE SECURITY DOCUMENTS, EACH SIGNED ON BEHALF OF THE RESPECTIVE
PARTIES.
(B)
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED A FAVORABLE WRITTEN
OPINION (ADDRESSED TO THE ADMINISTRATIVE AGENT AND THE LENDERS AND DATED THE
EFFECTIVE DATE) OF [THE GENERAL COUNSEL OF THE] BORROWER, AND COVERING SUCH
OTHER MATTERS RELATING TO THE BORROWER, THIS AGREEMENT OR THE TRANSACTIONS AS
THE ADMINISTRATIVE AGENT SHALL REASONABLY