OR IN THEIR FILINGS WITH THE SECURITIES AND
EXCHANGE COMMISSION AND AVAILABLE ON THEIR WEBSITE, ALL AGREEMENTS, INSTRUMENTS
AND CORPORATE OR OTHER RESTRICTIONS TO WHICH IT OR ANY SUBSIDIARY IS SUBJECT,
AND ALL OTHER MATTERS KNOWN TO IT, THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
NEITHER THE
INFORMATION MEMORANDUM NOR ANY OF THE OTHER REPORTS, FINANCIAL STATEMENTS,
CERTIFICATES OR OTHER INFORMATION FURNISHED BY OR ON BEHALF OF THE ANY LOAN
PARTY TO THE ADMINISTRATIVE AGENT OR ANY LENDER IN CONNECTION WITH THE
NEGOTIATION OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (AS MODIFIED OR
SUPPLEMENTED BY OTHER INFORMATION SO FURNISHED AND CONSIDERED AS A WHOLE)
CONTAINS ANY MATERIAL MISSTATEMENT OF FACT OR OMITS TO STATE ANY MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING; PROVIDED THAT, WITH RESPECT TO
PROJECTED FINANCIAL INFORMATION, THE BORROWER AND HOLDINGS REPRESENT ONLY THAT
SUCH INFORMATION WAS PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED TO
BE REASONABLE AT THE TIME DELIVERED AND, IF SUCH PROJECTED FINANCIAL INFORMATION
WAS DELIVERED PRIOR TO THE EFFECTIVE DATE, AS OF THE EFFECTIVE DATE.
51
SECTION 3.12.
MATERIAL AGREEMENTS.
NO LOAN PARTY IS IN DEFAULT IN THE
PERFORMANCE, OBSERVANCE OR FULFILLMENT OF ANY OF THE OBLIGATIONS, COVENANTS OR
CONDITIONS CONTAINED IN ANY AGREEMENT TO WHICH IT IS A PARTY WHICH COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
SECTION 3.13.
SOLVENCY.
(A)
IMMEDIATELY AFTER THE CONSUMMATION OF THE
TRANSACTIONS TO OCCUR ON THE EFFECTIVE DATE, (I) THE FAIR VALUE OF THE ASSETS OF
EACH LOAN PARTY, AT A FAIR VALUATION, WILL EXCEED ITS DEBTS AND LIABILITIES,
SUBORDINATED, CONTINGENT OR OTHERWISE; (II) THE PRESENT FAIR SALEABLE VALUE OF
THE PROPERTY OF EACH LOAN PARTY WILL BE GREATER THAN THE AMOUNT THAT WILL BE
REQUIRED TO PAY THE PROBABLE LIABILITY OF ITS DEBTS AND OTHER LIABILITIES,
SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND OTHER LIABILITIES
BECOME ABSOLUTE AND MATURED; (III) EACH LOAN PARTY WILL BE ABLE TO PAY ITS DEBTS
AND LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND
LIABILITIES BECOME ABSOLUTE AND MATURED; AND (IV) EACH LOAN PARTY WILL NOT HAVE
UNREASONABLY SMALL CAPITAL WITH WHICH TO CONDUCT THE BUSINESS IN WHICH IT IS
ENGAGED AS SUCH BUSINESS IS NOW CONDUCTED AND IS PROPOSED TO BE CONDUCTED AFTER
THE EFFECTIVE DATE.
(b)
No Loan Party intends to, or will permit any of its Subsidiaries to, and
no Loan Party believes that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
SECTION 3.14.
INSURANCE.
SCHEDULE 3.14 SETS FORTH A DESCRIPTION OF ALL
INSURANCE MAINTAINED BY OR ON BEHALF