OF EACH OF ITS
SUBSIDIARIES WHICH IS NOT A US SUBSIDIARY FREE AND CLEAR OF ANY MORTGAGE,
PLEDGE, LIEN, SECURITY INTEREST, CHARGE, OPTION OR OTHER ENCUMBRANCE.
3.3.
QUALIFICATION.
THE BORROWER AND ITS SUBSIDIARIES ARE DULY
QUALIFIED OR LICENSED AND IN GOOD STANDING AS FOREIGN CORPORATIONS OR OTHER
ENTITIES DULY AUTHORIZED TO DO BUSINESS IN EACH JURISDICTION IN WHICH THE
CHARACTER OF THE PROPERTIES OWNED OR THE NATURE OF THE ACTIVITIES CONDUCTED
MAKES SUCH QUALIFICATION OR LICENSING NECESSARY, EXCEPT WHERE THE FAILURE TO BE
SO QUALIFIED OR LICENSED IS NOT REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE
EFFECT.
3.4.
FINANCIAL INFORMATION; DISCLOSURE; SOLVENCY CERTIFICATE; OPENING
BALANCE SHEET; PROJECTIONS, ETC.
(A)
THE BORROWER HAS FURNISHED THE LENDERS WITH THE FINANCIAL
STATEMENTS AND OTHER REPORTS REQUESTED BY THE AGENT, AND HAS FURNISHED THE
PRO-FORMA COMPLIANCE CERTIFICATE
12
REFERRED TO IN SUBSECTION 1.11, THE OPENING BALANCE SHEET AND THE SOLVENCY
CERTIFICATE REFERRED TO BELOW IN THIS SUBSECTION 3.4.
SUCH FINANCIAL STATEMENTS
AND OPENING BALANCE SHEET HAVE BEEN OR WILL BE PREPARED IN ACCORDANCE WITH GAAP
APPLIED ON A CONSISTENT BASIS AND SUCH FINANCIAL STATEMENTS AND OPENING BALANCE
SHEET FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL POSITION AND RESULTS
OF OPERATIONS OF THE BORROWER AND ITS SUBSIDIARIES ON A CONSOLIDATED BASIS AS OF
THE DATES AND FOR THE PERIODS INDICATED.
SINCE DECEMBER 31, 2002, THERE HAS NOT
OCCURRED ANY EVENT, CIRCUMSTANCE OR CONDITION WHICH HAS HAD OR IS REASONABLY
LIKELY TO HAVE A MATERIAL ADVERSE EFFECT.
(B)
NEITHER THIS AGREEMENT, THE OPENING BALANCE SHEET, THE SOLVENCY
CERTIFICATE, NOR ANY FINANCIAL STATEMENTS, REPORTS OR OTHER DOCUMENTS OR
CERTIFICATES FURNISHED TO THE LENDERS BY THE BORROWER IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT TO STATE ANY MATERIAL FACT NECESSARY TO MAKE THE
STATEMENTS HEREIN OR THEREIN CONTAINED NOT MISLEADING, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY ARE MADE, EXCEPT TO THE EXTENT THAT SUCH
FINANCIAL STATEMENTS, REPORTS OR OTHER DOCUMENTS OR CERTIFICATES EXPRESSLY
RELATE TO AN EARLIER DATE OR ARE AFFECTED BY THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(C)
WITHOUT LIMITING THE SCOPE OF THE SOLVENCY CERTIFICATE IN THE FORM
ATTACHED HERETO AS EXHIBIT D (THE "SOLVENCY CERTIFICATE") DELIVERED BY THE
BORROWER TO THE LENDERS ON THE CLOSING DATE, NONE OF THE LOANS WILL RENDER THE
BORROWER UNABLE TO PAY ITS DEBTS AS THEY BECOME DUE; THE BORROWER IS NOT
CONTEMPLATING EITHER THE FILING OF A PETITION BY IT UNDER ANY STATE OR FEDERAL
BANKRUPTCY OR INSOLVENCY LAWS OR THE LIQUIDATION OF ALL OR A MAJOR PORTION OF
ITS PROPERTY; AND THE BORROWER DOES NOT HAVE ANY KNOWLEDGE OF ANY PERSON
CONTEMPLATING THE FILING OF ANY SUCH PETITION AGAINST IT.
THE BORROWER IS
SOLVENT (WITHIN THE MEANINGS OF ALL APPLICABLE FRAUDULENT TRANSFER OR FRAUDULENT
CONVEYANCE STATUTES AND ACTS, THE FEDERAL BANKRUPTCY CODE AND ALL OTHER
APPLICABLE LAWS) AND HAS ASSETS HAVING A FAIR VALUE IN EXCESS OF THE AMOUNT
REQUIRED TO PAY ITS PROBABLE LIABILITIES ON ITS EXISTING DEBTS