WILL VIOLATE
ANY PROVISION OF ANY ORGANIZATIONAL DOCUMENT OF ANY CREDIT PARTY OR (IV) WILL
REQUIRE ANY APPROVAL OF STOCKHOLDERS OR ANY APPROVAL OR CONSENT OF ANY PERSON
(OTHER THAN A GOVERNMENTAL AUTHORITY) EXCEPT AS HAVE BEEN OBTAINED ON OR PRIOR
TO THE CLOSING DATE OR AS SET FORTH ON SCHEDULE 6.3.
6.4
GOVERNMENTAL AND OTHER APPROVALS.
EXCEPT AS SET FORTH ON SCHEDULE
6.4 HERETO AND EXCEPT FOR THE RECORDING OF THE MORTGAGES AND THE FILING OF UCC
FINANCING STATEMENTS, WHICH SHALL BE RECORDED AND FILED, RESPECTIVELY, ON, OR AS
SOON AS PRACTICABLE AFTER, THE CLOSING DATE, NO ORDER, CONSENT, APPROVAL,
LICENSE, AUTHORIZATION OR VALIDATION OF, OR FILING, RECORDING OR REGISTRATION
WITH OR EXEMPTION BY, ANY GOVERNMENTAL AUTHORITY (EXCEPT AS HAVE BEEN OBTAINED
OR MADE ON OR PRIOR TO THE CLOSING DATE), IS REQUIRED TO AUTHORIZE, OR IS
REQUIRED IN CONNECTION WITH, THE EXECUTION, DELIVERY AND PERFORMANCE OF ANY LOAN
DOCUMENT OR (II) THE LEGALITY, VALIDITY, BINDING EFFECT OR ENFORCEABILITY OF ANY
SUCH LOAN DOCUMENT.
6.5
FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; ETC.
(A)
FINANCIAL STATEMENTS.
THE HISTORICAL FINANCIAL STATEMENTS COPIES
OF WHICH HAVE BEEN FURNISHED TO ADMINISTRATIVE AGENT PRIOR TO THE DATE HEREOF
PRESENT FAIRLY THE FINANCIAL CONDITION OF THE APPLICABLE CREDIT PARTY AS OF THE
DATE THEREOF.
THE HISTORICAL FINANCIAL STATEMENTS IDENTIFIED ON SCHEDULE 6.5(A)
AS AUDITED FINANCIAL STATEMENTS FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003,
HAVE BEEN EXAMINED BY DELOITTE & TOUCHE, INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS, WHO DELIVERED A REPORT AND OPINION THAT IS NOT SUBJECT TO ANY
"GOING CONCERN" OR LIKE QUALIFICATION OR EXCEPTION OR ANY QUALIFICATION OR
EXCEPTION AS TO THE SCOPE OF THE AUDIT.
79
(B)
SOLVENCY.
ON AND AS OF THE CLOSING DATE, AFTER GIVING EFFECT TO
ALL INDEBTEDNESS (INCLUDING THE LOANS) BEING INCURRED, AND TO BE INCURRED (AND
THE USE OF PROCEEDS THEREOF), AND LIENS CREATED, AND TO BE CREATED, BY BORROWERS
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, (I) THE SUM OF THE
ASSETS, AT A FAIR VALUATION, OF EACH BORROWER AND EACH OTHER MATERIAL SUBSIDIARY
WILL EXCEED ITS DEBTS; (II) NO BORROWER AND NO MATERIAL SUBSIDIARY HAS INCURRED
OR INTENDS TO, OR BELIEVES THAT IT WILL, INCUR DEBTS BEYOND ITS ABILITY TO PAY
SUCH DEBTS AS SUCH DEBTS MATURE; AND (III) EACH BORROWER AND EACH OTHER MATERIAL
SUBSIDIARY WILL HAVE SUFFICIENT CAPITAL WITH WHICH TO CONDUCT ITS BUSINESS.
FOR
PURPOSES OF THIS SECTION 6.5(B) "DEBT" MEANS ANY LIABILITY ON A CLAIM, AND
"CLAIM" MEANS (Y) ANY RIGHT TO PAYMENT, WHETHER OR NOT SUCH A RIGHT IS REDUCED
TO JUDGMENT, LIQUIDATED, UNLIQUIDATED, FIXED, CONTINGENT, MATURED, UNMATURED,
DISPUTED, UNDISPUTED, LEGAL, EQUITABLE, SECURED, OR UNSECURED (INCLUDING ALL
OBLIGATIONS, IF ANY, UNDER ANY PLAN OR THE EQUIVALENT FOR UNFUNDED PAST SERVICE
LIABILITY, AND ANY OTHER UNFUNDED MEDICAL AND DEATH BENEFITS) OR (Z) ANY RIGHT
TO AN EQUITABLE REMEDY FOR BREACH OF PERFORMANCE IF SUCH BREACH GIVES RISE TO A
PAYMENT, WHETHER OR NOT SUCH RIGHT TO AN EQUITABLE REMEDY IS REDUCED TO
JUDGMENT, FIXED, CONTINGENT, MATURED, UNMATURED, DISPUTED, UNDISPUTED, SECURED
OR UNSECURED.