EXISTENCE AS OF THE DATE THIS AGREEMENT IS MADE AND ENTERED INTO,
BUT NOT INCLUDING IN SUCH EXCEPTION ANY EVENTS AND CIRCUMSTANCES NOT
SPECIFICALLY DESCRIBED ON ANNEX D-1 AND/OR ANNEX D-2 EVEN IF THEY COULD BE
CONSTRUED AS BEING IMPLIED BY, RELATING TO, ARISING OUT OF, RESULTING FROM OR
FLOWING FROM, OR OTHERWISE CONNECTED WITH, EVENTS AND CIRCUMSTANCES SPECIFICALLY
LISTED AND SPECIFICALLY DESCRIBED ON ANNEX D-1 AND/OR ANNEX D-2; AND NO CURRENT
MATERIAL ADVERSE EVENT HAS OCCURRED, INCLUDING ANY CURRENT MATERIAL ADVERSE
EVENT RELATED TO, CONNECTED WITH, RESULTING FROM, IMPLIED BY OR FLOWING FROM ANY
MATTERS DESCRIBED IN ANNEX D-1 AND/OR ANNEX D-2 HERETO.
(B)
SOLVENCY.
UPON GIVING EFFECT TO THE ISSUANCE OF EACH NOTE (AND
THE INCURRENCE OF THE INDEBTEDNESS THEREUNDER), THE EXECUTION, DELIVERY AND
PERFORMANCE OF EACH LOAN DOCUMENT BY EACH COMPANY WHICH IS A PARTY THERETO, AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY, THE FOLLOWING ARE AND
WILL BE TRUE, COMPLETE AND ACCURATE IN ALL MATERIAL RESPECTS AS TO EACH COMPANY:
(I)
THE FAIR SALEABLE VALUE OF THE ASSETS OF EACH COMPANY EXCEEDS THE
AMOUNT THAT WILL BE REQUIRED TO BE PAID ON OR IN RESPECT OF THE EXISTING DEBTS
AND OTHER LIABILITIES (INCLUDING CONTINGENT LIABILITIES) OF SUCH COMPANY, AS
THEY MATURE;
(II)
THE ASSETS OF EACH COMPANY DO NOT CONSTITUTE UNREASONABLY SMALL
CAPITAL FOR SUCH COMPANY TO CARRY OUT ITS BUSINESS AS NOW CONDUCTED AND AS
PROPOSED BY IT TO BE CONDUCTED;
(III)
NO COMPANY INTENDS TO INCUR DEBTS BEYOND ITS ABILITY TO PAY SUCH
DEBTS AS THEY MATURE (TAKING INTO ACCOUNT THE TIMING AND AMOUNTS OF CASH TO BE
RECEIVED BY SUCH COMPANY, AND OF AMOUNTS TO BE PAYABLE ON OR IN RESPECT OF DEBT
OF SUCH COMPANY); AND
(IV)
NO COMPANY INTENDS, NOR BELIEVES, THAT FINAL JUDGMENTS AGAINST IT
IN ACTIONS FOR MONEY DAMAGES WILL BE RENDERED AT A TIME WHEN, OR IN AN AMOUNT
SUCH THAT, IT WILL BE UNABLE TO SATISFY ANY SUCH JUDGMENTS PROMPTLY IN
ACCORDANCE WITH THEIR TERMS (TAKING INTO ACCOUNT THE MAXIMUM REASONABLE AMOUNT
OF SUCH JUDGMENTS IN ANY SUCH ACTIONS AND THE EARLIEST REASONABLE TIME AT WHICH
SUCH JUDGMENTS MIGHT BE RENDERED).
SECTION 4.7
FULL DISCLOSURE.
THERE IS NO FACT THAT ANY COMPANY HAS NOT
DISCLOSED TO THE BANKS WHICH MIGHT REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
NEITHER THE FINANCIAL INFORMATION REFERENCED IN SECTION 4.6(A)
NOR ANY CERTIFICATE, REPORT, EXHIBIT, SCHEDULE, STATEMENT, DISCLOSURE LETTER OR
OTHER INFORMATION FURNISHED TO THE AGENT OR ANY BANK BY, OR ON BEHALF OF, ANY
COMPANY, WHETHER HERETOFORE OR HEREWITH, IN CONNECTION WITH THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY OR CONSUMMATION OF THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS, OR INCLUDED THEREIN OR DELIVERED PURSUANT THERETO, CONTAINS ANY
UNTRUE STATEMENT OF A
16
MATERIAL FACT OR OMITS OR OMITTED TO STATE ANY MATERIAL FACT NECESSARY TO MAKE
AND KEEP THE STATEMENTS CONTAINED HEREIN OR THEREIN FROM BEING MISLEADING.
ALL
INFORMATION FURNISHED AFTER THE DATE HEREOF BY OR ON BEHALF OF ANY COMPANY SHALL
BE TRUE, COMPLETE AND ACCURATE IN