AND HAS PAID ALL TAXES,
ASSESSMENTS, FEES AND OTHER GOVERNMENTAL CHARGES THAT ARE DUE AND PAYABLE EXCEPT
THOSE THAT ARE BEING CONTESTED BY BORROWER IN GOOD FAITH AND WITH RESPECT TO
WHICH RESERVES IN ACCORDANCE WITH GAAP HAVE BEEN PROVIDED ON THE BOOKS OF
BORROWER. FEDERAL, STATE AND LOCAL INCOME TAX RETURNS OF BORROWER HAVE BEEN
EXAMINED AND REPORTED UPON BY THE APPROPRIATE TAXING AUTHORITY OR CLOSED BY
APPLICABLE STATUTE AND SATISFIED FOR ALL FISCAL YEARS PRIOR TO AND INCLUDING THE
FISCAL YEAR ENDING DECEMBER 31, 2006. THE PROVISION FOR TAXES ON THE BOOKS OF
BORROWER IS ADEQUATE FOR ALL YEARS NOT CLOSED BY APPLICABLE STATUTES, AND FOR
ITS CURRENT FISCAL YEAR, AND BORROWER HAS NO KNOWLEDGE OF ANY DEFICIENCY OR
ADDITIONAL ASSESSMENT IN CONNECTION THEREWITH NOT PROVIDED FOR ON ITS BOOKS.
4.5
FINANCIAL STATEMENTS. THE CONSOLIDATED AND CONSOLIDATING BALANCE
SHEETS OF BORROWER, ITS SUBSIDIARIES AND SUCH OTHER PERSONS DESCRIBED THEREIN
(INCLUDING THE ACCOUNTS OF ALL SUBSIDIARIES FOR THE RESPECTIVE PERIODS DURING
WHICH A SUBSIDIARY RELATIONSHIP EXISTED) AS OF JUNE 30, 2007, AND THE RELATED
STATEMENTS OF INCOME, CHANGES IN STOCKHOLDER'S EQUITY, AND CHANGES IN CASH FLOW
FOR THE PERIOD ENDED ON SUCH DATE, COPIES OF WHICH HAVE BEEN DELIVERED TO
BRASCAN, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP, CONSISTENTLY APPLIED
(SUBJECT TO NORMAL YEAR-END ADJUSTMENTS AND THE ABSENCE OF FOOTNOTE DISCLOSURES)
AND PRESENT FAIRLY THE FINANCIAL POSITION OF BORROWER AND ITS SUBSIDIARIES AT
SUCH DATE AND THE RESULTS OF THEIR OPERATIONS FOR SUCH PERIOD. SINCE JUNE 30,
2007 THERE HAS BEEN NO CHANGE IN THE CONDITION, FINANCIAL OR OTHERWISE, OF
BORROWER OR ITS SUBSIDIARIES AS SHOWN ON THE CONSOLIDATED BALANCE SHEET AS OF
SUCH DATE, EXCEPT CHANGES IN THE ORDINARY COURSE OF BUSINESS, NONE OF WHICH
INDIVIDUALLY OR IN THE AGGREGATE HAS BEEN MATERIALLY ADVERSE.
14
4.6
ENTITY NAME. BORROWER HAS NOT BEEN KNOWN BY ANY OTHER CORPORATE
NAME IN THE PAST FIVE YEARS NOR HAS BORROWER BEEN THE SURVIVING CORPORATION OF A
MERGER OR CONSOLIDATION OR ACQUIRED ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF
ANY PERSON DURING THE PRECEDING FIVE (5) YEARS.
4.7
O.S.H.A. AND ENVIRONMENTAL COMPLIANCE.
(A)
TO THE EXTENT APPLICABLE TO BORROWER, BORROWER HAS DULY COMPLIED
WITH, AND ITS FACILITIES, BUSINESS, ASSETS, PROPERTY, LEASEHOLDS, REAL PROPERTY
AND EQUIPMENT ARE IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH, THE PROVISIONS OF
THE FEDERAL OCCUPATIONAL SAFETY AND HEALTH ACT, THE ENVIRONMENTAL PROTECTION
ACT, RCRA AND ALL OTHER ENVIRONMENTAL LAWS; THERE HAVE BEEN NO OUTSTANDING
CITATIONS, NOTICES OR ORDERS OF NON-COMPLIANCE ISSUED TO BORROWER OR RELATING TO
ITS BUSINESS, ASSETS, PROPERTY, LEASEHOLDS OR EQUIPMENT UNDER ANY SUCH LAWS,
RULES OR REGULATIONS.
(B)
BORROWER HAS BEEN ISSUED ALL REQUIRED FEDERAL, STATE AND LOCAL
LICENSES, CERTIFICATES OR PERMITS RELATING TO ALL APPLICABLE ENVIRONMENTAL LAWS
NECESSARY TO THE OPERATIONS OF THE BUSINESS OF BORROWER.
4.8
SOLVENCY; NO LITIGATION, VIOLATION, INDEBTEDNESS OR DEFAULT.
(A)
AFTER GIVING EFFECT TO THE TRANSACTIONS, BORROWER SHALL BE
SOLVENT, ABLE TO PAY ITS DEBTS AS THEY MATURE, SHALL HAVE CAPITAL SUFFICIENT TO
CARRY ON ITS BUSINESS AND