Common use of Financial Position Clause in Contracts

Financial Position. Complete and accurate copies of the financial statements and materials as described in SECTION 5.1(i) have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity with GAAP, except as otherwise noted therein, and fairly present in all material respects the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each of the periods covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As of the Closing Date, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated balance sheet of the Borrower as of December 31, 2002 or acquired since that date except the minority interests reflected therein (except property and assets sold or otherwise disposed of in the ordinary course of business since that date), subject to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION 9.2. Without limiting the foregoing, Borrower and its Subsidiaries have good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in whole, free from all liens or encumbrances of any nature whatsoever, except for Liens permitted by SECTION 9.

Financial Position. Complete and accurate copies of the financial statements and materials as described in SECTION 5.1(i(a) have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity with GAAP, except as otherwise noted therein, and fairly present in all material respects the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each of the periods covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As of the Closing Date, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated The consolidated balance sheet of the Borrower and its Subsidiaries as of at December 31, 2002 or acquired since that date except 1996, and the minority interests reflected therein (except property related consolidated statements of income, retained earnings and assets sold or otherwise disposed cash flows for the fiscal year then ended, audited by KPMG Peat Marwick, independent public accountants, copies of in which have been furnished to the ordinary course Bank Group, fairly present the consolidated financial condition of business since that date), subject to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION 9.2. Without limiting the foregoing, Borrower and its Subsidiaries have good at such date and marketable fee simple title to all Real Property reasonably necessary the consolidated results of their operations and the consolidated cash flows of the Borrower and its Subsidiaries for the operation fiscal period ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 1997, and the related unaudited consolidated statements of income, retained earnings and cash flows for the nine month period then ended, copies of which have been furnished to the Bank Group, fairly present the consolidated financial condition of the Borrower and its Subsidiaries at such date and the consolidated results of their operations and the consolidated cash flows of the Borrower and its Subsidiaries for the nine month period ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis, subject to normal year-end adjustments. (c) Since June 30, 1997, there has been no material adverse change in the consolidated financial condition or operations of the Borrower and its Subsidiaries. (d) Except as fully reflected in financial statements referred to in paragraphs (a) and (b) of this Section 4.06, as of the date hereof, there are no liabilities or obligations of the Borrower or any of its business in whole, free from all liens or encumbrances Subsidiaries of any nature whatsoeverwhatsoever (whether absolute, except for Liens permitted by SECTION 9accrued, contingent or otherwise and whether or not due) which, either individually or in aggregate, would be material to either the Borrower individually or the Borrower and its Subsidiaries taken as a whole.

Financial Position. Complete and accurate copies of the financial statements and materials as described in SECTION Section 5.1(i) have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity with GAAP, except as otherwise noted therein, and fairly present in all material respects the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each of the periods covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As of the Closing Date, except for assets under capital leases and assets of joint ventures that are Consolidated as variable interest entities in accordance with GAAP, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated balance sheet of the Borrower as of December 31September 30, 2002 2004 or acquired since that date except the minority interests reflected therein (except property and assets sold or otherwise disposed of (x) in the ordinary course of business since that datedate or (y) as permitted under the Existing Revolving Agreement and the Original Term Loan Agreement), subject to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION Section 9.2. Without limiting the foregoing, Borrower and its Subsidiaries have good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in whole, free from all liens or encumbrances of any nature whatsoever, except for Liens permitted by SECTION 9Section 9.2. The Borrower or one of its Subsidiaries, as the case may be, has, in each case, title insurance in such amounts and coverages as are customarily carried by REITs substantially similar to the Borrower and in any event no less than the amounts required by the applicable lender(s) providing financing for such Real Property.

Financial Position. Complete and accurate copies (a) Prior to the Execution Date, the Parent has furnished to the Bank Group the consolidated balance sheet of the financial Parent as at December 31, 1996, and the related consolidated statements of operations, shareholders' equity and materials cash flows for the fiscal year then ended, audited by Arthur Andersen LLP, independent certified public accountants and com▇▇▇▇▇▇e ▇▇▇▇▇ ▇or Saybolt prepared by Price Waterhouse L.L.P. as described of December 31, 1996 and for Scott Pickford prepared by Crane & Partners, as of March 31, 1996. Th▇ ▇▇▇▇▇▇▇▇▇ ▇▇atements referred to in SECTION 5.1(i) the previous sentence have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects accordance with GAAP (except for that in conformity respect of Scott Pickford, which was prepared in accordance with GAAP, except GAAP as otherwise noted therein, in effe▇▇ ▇▇ ▇▇▇ ▇▇▇▇ed Kingdom) consistently applied throughout the periods involved and present fairly present in all material respects the respective Consolidated consolidated financial positions, condition of the Persons named therein as of the date thereof and the Consolidated results of its operations and cash flows for each of the periods covered thereby then ended. No event has occurred since December 31, 1996, or in the case of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor Scott Pickford since March 31, 1996, that could reasonably be expecte▇ ▇▇ ▇▇▇▇ ▇ ▇▇terial Adverse Effect in respect of any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not said Persons. (b) Except as fully reflected in its the audited financial statements delivered referred to in paragraph (a) of this SECTION 4.06, as of the Administrative Agent on Execution Date, there are no liabilities or prior to obligations of the Closing Date Borrowers or any of their Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise disclosed to the Administrative Agent and the Lenders whether or not due) which, either individually or in writingaggregate, which will have or is could reasonably likely be expected to have a Material Adverse Effect. As . (c) On and as of the Closing Effective Date, TMCon a PRO FORMA basis after giving effect to all Indebtedness incurred, Borrower and their respective Subsidiaries own all to be incurred, and Liens created, and to be created, by each Credit Party in connection therewith, (x) the sum of the assets reflected in the Consolidated balance sheet assets, at a fair valuation, of the Borrower each Credit Party will exceed its debts, (y) no Credit Party will have incurred or intended to, or believe that they will, incur debts beyond their ability to pay such debts as of December 31, 2002 or acquired since that date except the minority interests reflected therein such debts mature and (except property and assets sold or otherwise disposed of in the ordinary course of business since that date), subject z) no Credit Party will have unreasonably small capital with which to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION 9.2. Without limiting the foregoing, Borrower and conduct its Subsidiaries have good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in whole, free from all liens or encumbrances of any nature whatsoever, except for Liens permitted by SECTION 9business.

Financial Position. Complete and accurate copies (a) Attached hereto as Section 2.6 of the financial statements and materials as described in SECTION 5.1(i) have been delivered to Disclosure Schedule is the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity with GAAPCompany's unaudited, except as otherwise noted therein, and fairly present in all material respects the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each of the periods covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As of the Closing Date, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated consolidated balance sheet of the Borrower as of December 31, 2002 1994 (the "1994 Balance Sheet"), and the related unaudited, consolidated statements of income and cash flow for the fiscal year then ended, together with the draft report thereon of Deloitte & Touche, certified public accountants, and the unaudited, consolidated balance sheet of the Company as at July 31, 1995 (the "July 31 Balance Sheet"), and the related, unaudited consolidated statements of income and cash flow for the seven month period ended on July 31, 1995 (such balance sheets and related statements are collectively referred to herein as the "Financial Statements"). Except as set forth in Section 2.6 of the Disclosure Schedule, the Financial Statements present fairly the financial position of the Company and its subsidiaries as of such dates, respectively, all in conformity with generally accepted accounting principles, consistently applied, following in the case of the interim financial statements the Company's normal internal accounting practices. (b) Except as set forth on Section 2.6 of the Disclosure Schedule, since the date of the July 31 Balance Sheet, no event or acquired condition has occurred, and no event or condition is to the knowledge of the Company's officers threatened, which has had a materially adverse effect, or could reasonably be expected to have a materially adverse effect, on the Company's or any subsidiary's properties, assets, or financial position. Except as set forth in Section 2.6 of the Disclosure Schedule, the Company has no material liabilities or financial obligations not disclosed in the July 31 Balance Sheet. Except as disclosed in the Financial Statements, the Company is not an indemnitor or guarantor of any indebtedness of any other person, firm or corporation. The Company maintains and will continue to maintain its books and records in accordance with generally accepted accounting principles consistently applied. Except as set forth in Section 2.6 of the Disclosure Schedule, since that date the July 31 Balance Sheet, neither the Company nor its subsidiaries has (i) incurred any debts, obligations or liabilities, absolute, accrued or contingent and whether due or to become due, except the minority interests reflected therein (except property and assets sold or otherwise disposed of current liabilities incurred in the ordinary course of business since that date)business, subject to no rights which (individually or in the aggregate) will not materially and adversely affect the business, properties or prospects of othersthe Company or its subsidiaries; (ii) paid any obligation or liability other than, including or discharged or satisfied any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION 9.2. Without limiting the foregoing, Borrower and its Subsidiaries have good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in whole, free from all liens or encumbrances other than those securing current liabilities, in each case in the ordinary course of business; (iii) declared or made any nature whatsoeverpayment or distribution to its shareholders as such or purchased or redeemed any of its shares of capital stock or other securities, or obligated itself to do so; (iv) sold, transferred or leased any of its assets except for Liens permitted in the ordinary course of business; (v) issued or sold any shares of capital stock or other securities or granted any options, warrants or other purchase rights with respect thereto other than as contemplated by SECTION 9this Agreement. There has been no material adverse change in the condition, financial or otherwise, or operations, results of operations or business of the Company or its subsidiaries since the July 31 Balance Sheet.

Financial Position. Complete and accurate copies of the financial statements and materials as described in SECTION Section 5.1(i) have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity with GAAP, except as otherwise noted therein, and fairly present in all material respects the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each of the periods covered thereby of TMC and the Borrower and its Consolidated Subsidiaries as at the respective dates thereof. Neither Borrower nor any of its Consolidated Subsidiaries has any Contingent Obligation, contingent liability or liability for any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As of the Closing Date, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated balance sheet of the Borrower as of December March 31, 2002 or acquired since that date except the minority interests reflected therein (except property and assets sold or otherwise disposed of in the ordinary course of business since that date), subject to no rights of others, including any mortgages, leases, conditional sales agreements, title retention agreements, liens or other encumbrances except Liens permitted by SECTION Section 9.2. Without limiting the foregoing, Borrower and its Subsidiaries have good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in whole, free from all liens or encumbrances of any nature whatsoever, except for Liens permitted by SECTION 9Section 9.2. The Borrower or one of its Subsidiaries, as the case may be, is the insured under owner's policies of title insurance covering all Real Property owned by it, in each case in an amount not less than the purchase price for such Real Property.

Financial Position. Complete and accurate copies of (i) The Company has delivered to the Purchaser the financial statements (the "Financial Statements") which are annexed hereto as SCHEDULE D. The Financial Statements (A) present fairly the financial condition of the Company as of their respective dates and materials as described results of operations for the periods then ended, (B) are in SECTION 5.1(iaccordance with the books and records of the Company and (C) have been delivered to the Administrative Agent. All financial statements included in such materials were prepared in all material respects in conformity accordance with GAAP, generally accepted accounting principles consistently applied except as otherwise noted therein, and fairly present in all material respects that footnote disclosures contemplated by generally accepted accounting principles are not provided. (ii) At the respective Consolidated financial positions, and the Consolidated results of operations and cash flows for each date of the periods covered thereby most recent balance sheet (the "Balance Sheet") contained in the Financial Statements, (A) the Company had no liabilities of TMC any nature (matured or unmatured, fixed or contingent) required by generally accepted accounting principles to be provided for in the Balance Sheet or described in the notes thereto which were not provided for in the Balance Sheet or described in the notes thereto and (B) all reserves established by the Borrower Company and set forth in the Balance Sheet were adequate for the purposes for which they were established. (iii) Except as set forth on SCHEDULE A and as contemplated by the Kend▇▇▇ ▇▇▇eement, since the date of the Balance Sheet: (A) the Company has not entered into any transaction which was not in the ordinary course of its Consolidated Subsidiaries as at business, (B) there has been no material adverse change in the respective dates thereof. Neither Borrower nor condition (financial or otherwise) of the Company, (C) the Company has not declared or paid any dividend or made any distribution on its securities, redeemed, purchased or otherwise acquired any of its Consolidated Subsidiaries securities, granted any options to purchase any securities or issued any securities, (D) the Company has not increased the compensation of any Contingent Obligationof its officers or the rate of pay of its employees as a group, by more than five percent (5%) over the prior year's compensation, (E) there has been no borrowing by the Company or agreement to borrow or change in the contingent liability obligations of the Company by way of guaranty, endorsement, indemnity, warranty or otherwise or grant of a mortgage or security interest in any properties of the Company, (F) there have been no loans made by the Company to its shareholders, employees, officers, directors or any affiliate thereof other than travel advances and office advances made in the ordinary course of business, (G) there has not been any payment of any obligation or liability for other than current liabilities paid in the ordinary course of business, (H) there has been no sale, assignment or transfer of any taxes, long-term leases or commitments, not reflected in its audited financial statements delivered to the Administrative Agent on or prior to the Closing Date or otherwise disclosed to the Administrative Agent and the Lenders in writing, which will have or is reasonably likely to have a Material Adverse Effect. As tangible asset of the Closing Date, TMC, Borrower and their respective Subsidiaries own all of the assets reflected in the Consolidated balance sheet of the Borrower as of December 31, 2002 or acquired since that date Company except the minority interests reflected therein (except property and assets sold or otherwise disposed of in the ordinary course of business since that date)and no sale, subject to no rights assignment or transfer of othersany patent, including any mortgagestrademark, leases, conditional sales agreements, title retention agreements, liens trade secret or other encumbrances except Liens permitted intangible asset of the Company, (I) there has been no damage to, destruction of or loss of physical property (whether or not covered by SECTION 9.2. Without limiting insurance) which may have a material adverse effect on the foregoingbusiness or operations of the Company, (J) the Company has not received notice that there has been a loss to, Borrower and its Subsidiaries have nor cancellation of a material order by, any customer of the Company, and (K) there has been no resignation or termination of employment of any officer or employee of the Company. (iv) The Company has good and marketable fee simple title to all Real Property reasonably necessary for the operation of its business in wholeproperties and assets purported to be owned by it and such properties and assets are not subject to any liens, free from all liens mortgages, pledges, encumbrances or encumbrances charges of any nature whatsoever, kind except liens for Liens permitted by SECTION 9current taxes and assessments not delinquent or those which are not material in scope or amount and do not materially interfere with the conduct of the Company's business.