AGREEMENT AND THE OTHER
DOCUMENTS HAVE BEEN DULY EXECUTED AND DELIVERED BY BORROWER, AND THIS AGREEMENT
AND THE OTHER DOCUMENTS CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF
BORROWER ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, EXCEPT AS SUCH
ENFORCEABILITY MAY BE LIMITED BY ANY APPLICABLE BANKRUPTCY, INSOLVENCY,
MORATORIUM OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY. THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND OF THE OTHER DOCUMENTS (A) ARE
WITHIN BORROWER'S CORPORATE POWERS, HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY
CORPORATE ACTION, ARE NOT IN CONTRAVENTION OF LAW OR THE TERMS OF BORROWER'S
BY-LAWS, CERTIFICATE OF INCORPORATION OR OTHER APPLICABLE DOCUMENTS RELATING TO
BORROWER'S FORMATION OR TO THE CONDUCT OF BORROWER'S BUSINESS OR OF ANY MATERIAL
AGREEMENT OR UNDERTAKING TO WHICH BORROWER IS A PARTY OR BY WHICH BORROWER IS
BOUND, (B) SHALL NOT CONFLICT WITH OR VIOLATE ANY LAW OR REGULATION, OR ANY
JUDGMENT, ORDER OR DECREE OF ANY GOVERNMENTAL BODY APPLICABLE TO BORROWER OR ANY
AGREEMENT BY WHICH IT IS BOUND, (C) SHALL NOT REQUIRE THE CONSENT OF ANY
GOVERNMENTAL BODY OR ANY OTHER PERSON, EXCEPT THOSE CONSENTS SET FORTH ON
SCHEDULE 4.1 HERETO, ALL OF WHICH SHALL HAVE BEEN DULY OBTAINED, MADE OR
COMPILED PRIOR TO THE CLOSING DATE AND WHICH ARE IN FULL FORCE AND EFFECT AND
(D) SHALL NOT CONFLICT WITH, NOR RESULT IN ANY BREACH IN ANY OF THE PROVISIONS
OF OR CONSTITUTE A DEFAULT UNDER OR RESULT IN THE CREATION OF ANY LIEN EXCEPT
PERMITTED ENCUMBRANCES UPON ANY ASSET OF BORROWER UNDER THE PROVISIONS OF ANY
13
AGREEMENT, CHARTER DOCUMENT, INSTRUMENT, BY-LAW OR OTHER INSTRUMENT TO WHICH
BORROWER IS A PARTY OR BY WHICH IT OR ITS PROPERTY IS A PARTY OR BY WHICH IT MAY
BE BOUND.
4.2
FORMATION AND QUALIFICATION.
(A)
BORROWER IS DULY INCORPORATED AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE LISTED ON SCHEDULE 4.2(A) AND IS QUALIFIED TO DO BUSINESS AND IS IN
GOOD STANDING IN THE STATES LISTED ON SCHEDULE 4.2(A) WHICH CONSTITUTE ALL
STATES IN WHICH QUALIFICATION AND GOOD STANDING ARE NECESSARY FOR BORROWER TO
CONDUCT ITS BUSINESS AND OWN ITS PROPERTY AND WHERE THE FAILURE TO SO QUALIFY
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT. BORROWER HAS
DELIVERED TO BRASCAN TRUE AND COMPLETE COPIES OF ITS CERTIFICATE OF
INCORPORATION AND BY-LAWS AND SHALL PROMPTLY NOTIFY BRASCAN OF ANY AMENDMENT OR
MATERIAL CHANGES THERETO.
(B)
THE ONLY SUBSIDIARIES OF BORROWER ARE LISTED ON SCHEDULE 4.2(B).
4.3
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS
AND WARRANTIES OF BORROWER CONTAINED IN THIS AGREEMENT AND THE OTHER DOCUMENTS
SHALL BE TRUE AT THE TIME OF BORROWER'S EXECUTION OF THIS AGREEMENT AND THE
OTHER DOCUMENTS, AND SHALL SURVIVE THE EXECUTION, DELIVERY AND ACCEPTANCE
THEREOF BY THE PARTIES THERETO AND THE CLOSING OF THE TRANSACTIONS DESCRIBED
THEREIN OR RELATED THERETO.
4.4
TAX RETURNS. BORROWER'S FEDERAL TAX IDENTIFICATION NUMBER IS SET
FORTH ON SCHEDULE 4.4. BORROWER HAS FILED ALL FEDERAL, STATE AND LOCAL TAX
RETURNS AND OTHER REPORTS IT IS REQUIRED BY LAW TO FILE