Audited Financial Statements, will
fairly present in all material respects the consolidated financial position of
the Corporation and the Subsidiaries as of the dates thereof and the
consolidated results of their operations and their cash flows for the periods
then ended.
4.12
DISTRIBUTIONS
No Distributions have been made from or after the Working Capital Date, except
for cash Distributions as may be set forth in the statement to be provided
pursuant to Section 3.3(a).
4.13
BUSINESS CARRIED ON IN THE ORDINARY COURSE
Since December 31, 2004:
(A)
THE BUSINESS HAS BEEN CARRIED ON IN THE ORDINARY COURSE EXCEPT
WITH RESPECT TO THE SALE PROCESS COMMENCED BY THE CORPORATION AS SET OUT IN THE
INFORMATION MEMORANDUM; AND
(B)
OTHER THAN AS SET FORTH IN SCHEDULE 4.17, THE BUSINESS HAS BEEN
CONDUCTED IN MATERIAL COMPLIANCE WITH ALL APPLICABLE LAWS.
4.14
ENVIRONMENTAL MATTERS
(A)
ON OR BEFORE THE CLOSING TIME, VENDOR SHALL PROVIDE OR CAUSE TO BE
PROVIDED OR MADE AVAILABLE TO PURCHASER ALL ENVIRONMENTAL DOCUMENTATION IN THE
POSSESSION OR CONTROL OF VENDOR OR THE CORPORATION OR ANY OF THE SUBSIDIARIES IN
RESPECT OF THE BUSINESS OR THE ASSETS PRODUCED FOR OR RECEIVED BY VENDOR, THE
CORPORATION OR THE SUBSIDIARIES SINCE
26
JUNE 1, 2000.
TO VENDOR'S KNOWLEDGE, EXCEPT AS DESCRIBED IN SCHEDULE 4.14,
THERE ARE NO MATERIAL ENVIRONMENTAL LIABILITIES THAT HAVE OCCURRED SINCE JUNE 1,
2000 THAT HAVE NOT BEEN REMEDIED.
(B)
EXCEPT AS SET OUT IN SCHEDULE 4.14, NEITHER THE CORPORATION NOR
ANY SUBSIDIARY HAS RECEIVED:
(I)
ANY ENVIRONMENTAL ORDER WHICH RELATES TO ENVIRONMENTAL
LIABILITIES AND WHICH REQUIRES ANY WORK, REPAIRS, CONSTRUCTION OR CAPITAL
EXPENDITURES WHICH IS OUTSTANDING, WHERE THAT ENVIRONMENTAL ORDER HAS NOT BEEN
COMPLIED WITH IN ALL MATERIAL RESPECTS; OR
(II)
ANY DEMAND OR NOTICE ISSUED WITH RESPECT TO THE BREACH OF
ENVIRONMENTAL LAWS, WHICH DEMAND OR NOTICE REMAINS OUTSTANDING.
(C)
WITHOUT LIMITATION OF ANY OTHER PROVISIONS OF THIS AGREEMENT,
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 4.14, VENDOR MAKES NO
REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE EXTENT OF ANY EXISTING OR
FUTURE LIABILITY RELATING TO ANY ENVIRONMENTAL MATTER, ENVIRONMENTAL LIABILITY
OR THE APPLICATION OF ANY ENVIRONMENTAL LAWS, INCLUDING IN RESPECT OF OR
RELATING TO HAZARDOUS SUBSTANCES.
4.15
ASSETS
(A)
VENDOR DOES NOT WARRANT TITLE TO THE ASSETS, BUT DOES WARRANT
THAT, TO VENDOR'S KNOWLEDGE, THE INTERESTS OF THE CORPORATION AND THE
SUBSIDIARIES IN AND TO THE ASSETS ARE NOW, AND WILL BE AT CLOSING DATE, FREE AND
CLEAR OF ALL ENCUMBRANCES CREATED BY, THROUGH OR UNDER VENDOR, THE CORPORATION
OR THE SUBSIDIARIES OR OF WHICH VENDOR IS AWARE OTHER THAN:
(I)
PERMITTED ENCUMBRANCES; AND
(II)
OTHER RESTRICTIONS ON TRANSFERS AND PERMITTED NUMBER OF
BENEFICIAL OWNERS SET OUT IN THE CONSTATING DOCUMENTS OF THE CORPORATION AND THE
SUBSIDIARIES.
(B)
NEITHER THE CORPORATION NOR ANY OF THE SUBSIDIARIES:
(I)
IS IN DEFAULT OR WILL BE IN DEFAULT ON THE COMPLETION OF THE
PURCHASE UNDER ANY MATERIAL CONTRACT OR, TO VENDOR'S KNOWLEDGE, ANY TITLE AND
OPERATING DOCUMENT; OR
(II)
HAS FAILED TO COMPLY WITH, PERFORM, OBSERVE OR SATISFY,