DISCLOSED ON SCHEDULE 4.12, NO
OBLIGOR HAS KNOWLEDGE OF, NOR HAS ANY OBLIGOR RECEIVED NOTICE OF, ANY EVENTS,
CONDITIONS, CIRCUMSTANCES, ACTIVITIES, PRACTICES, INCIDENTS, ACTIONS OR PLANS
WHICH MAY INTERFERE WITH OR PREVENT CONTINUED COMPLIANCE WITH, OR WHICH MAY GIVE
RISE TO ANY LIABILITY UNDER, ANY ENVIRONMENTAL LAWS.
SECTION 4.13
SUBMISSIONS TO LENDERS.
THIS AGREEMENT, TOGETHER WITH EACH
OTHER LOAN DOCUMENT AND THE EXHIBITS, SCHEDULES, ATTACHMENTS, WRITTEN OR ORAL
STATEMENTS, DOCUMENTS, CERTIFICATES AND OTHER ITEMS PREPARED OR SUPPLIED TO ANY
LENDER PARTY BY OR ON BEHALF OF ANY OBLIGOR WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMIT A MATERIAL FACT NECESSARY TO MAKE EACH STATEMENT CONTAINED
HEREIN OR THEREIN NOT MISLEADING (AND, AS TO PROJECTIONS, VALUATIONS OR PRO
FORMA FINANCIAL STATEMENTS, ALL OF SUCH INFORMATION PRESENTS A GOOD FAITH
OPINION BASED ON REASONABLE ASSUMPTIONS AS OF THE DATE MADE AS TO SUCH
PROJECTIONS, VALUATIONS AND PRO FORMA CONDITION AND RESULTS).
THERE IS NO FACT
THAT THE BORROWER HAS NOT DISCLOSED TO THE LENDER PARTIES IN WRITING AND OF
WHICH ANY OBLIGOR HAS KNOWLEDGE THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
NOTWITHSTANDING THE FOREGOING, THE LENDER
PARTIES ACKNOWLEDGE THAT
52
THE FINANCIAL PROJECTIONS AND PRO FORMA INFORMATION AS TO FUTURE PERIODS
CONTAINED THEREIN ARE SUBJECT TO GENERAL BUSINESS CONDITIONS AND ECONOMIC
FACTORS THAT MAY BE BEYOND ANY OBLIGOR'S CONTROL OR OTHER UNANTICIPATED FUTURE
EVENTS WHICH COULD HAVE AN UNFORESEEN IMPACT ON THE PERFORMANCE OR CONDITION OF
THE OBLIGORS, IT BEING UNDERSTOOD THAT ALL SUCH FINANCIAL PROJECTIONS WILL BE
SUBJECT TO UNCERTAINTIES AND CONTINGENCIES AND THAT NO REPRESENTATION IS GIVEN
THAT ANY PARTICULAR FINANCIAL PROJECTION WILL ULTIMATELY BE REALIZED.
NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE THE DISCLAIMER SET FORTH
IN THAT CERTAIN CONFIDENTIAL INFORMATION MEMORANDUM DATED AS OF JUNE, 2009,
WHICH WAS PREPARED AND DISTRIBUTED IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT, AND NO OBLIGOR MAKES ANY REPRESENTATION OR
WARRANTY OF ANY KIND IN RESPECT OF SUCH CONFIDENTIAL INFORMATION MEMORANDUM.
SECTION 4.14
FINANCIAL SOLVENCY.
BOTH BEFORE AND AFTER GIVING EFFECT TO
ALL OF THE LOANS, GUARANTIES AND OTHER FINANCIAL ACCOMMODATIONS CONTEMPLATED
HEREIN, EACH OF THE BORROWER AND EACH OTHER OBLIGOR (AFTER TAKING INTO ACCOUNT
THE BORROWER'S REIMBURSEMENT OBLIGATION TO SUCH OBLIGOR IN RESPECT OF ANY
GUARANTY):
(a)
was not and will not be insolvent, as that term is used and
defined in Section 101(32) of the United States Bankruptcy Code and Section 2 of
the Uniform Fraudulent Transfer Act;
(b)
does not have unreasonably small capital and is not engaged or
about to engage in a business or a transaction for which any remaining assets of
such Obligor are unreasonably small;
(c)
does not, by executing, delivering or performing its obligations
under the Loan Documents or by taking any action with respect thereto, intend to
nor believe that it will incur debts beyond its ability to pay them as they
mature;
(d)
does not, by executing, delivering or performing its