PROJECTIONS DELIVERED ON OR BEFORE
THE INTERIM FACILITY EFFECTIVE DATE, WHEN SUBMITTED TO AGENT AS REQUIRED
PURSUANT TO THE LOAN DOCUMENTS REPRESENT PARENT'S AND BORROWER'S GOOD FAITH
ESTIMATE OF THE FUTURE PERFORMANCE, EXPENSES AND RECEIVABLES OF PARENT AND ITS
CONSOLIDATED SUBSIDIARIES FOR THE PERIODS SET FORTH THEREIN.
THE PROJECTIONS
HAVE BEEN PREPARED ON THE BASIS OF THE ASSUMPTIONS SET FORTH THEREIN, WHICH
PARENT AND BORROWER BELIEVE WERE FAIR AND REASONABLE IN LIGHT OF CURRENT AND
REASONABLY FORESEEABLE BUSINESS CONDITIONS AT THE TIME SUBMITTED TO AGENT.
5.9
Fraudulent Transfer.
No transfer of
property is being made by any Loan Party and no obligation is being incurred by
any Loan Party in connection with the transactions contemplated by this
Agreement or the other Loan Documents with the intent to hinder, delay, or
defraud either present or future creditors of any Loan Party.
5.10
Employee Benefits.
No Loan Party, and no ERISA
Affiliate of any Loan Party, maintains or contributes to any Pension Plan,
Multiemployer Plan or other Benefit Plan.
5.11
Environmental Condition.
Except as set forth on
Schedule 5.11 to the Interim DIP Credit Agreement, or after the date of this
Agreement otherwise disclosed in writing pursuant to Section 6.12 by the Loan
Parties to the Agent, and except as would not reasonably be expected to cause a
Material Adverse Change:
(A)
EACH LOAN PARTY'S AND ITS BUSINESS AND OPERATIONS, INCLUDING SUCH
BUSINESS AND OPERATIONS AT ANY REAL PROPERTY AND ANY FORMER BUSINESS AND
OPERATIONS AT REAL PROPERTY FORMERLY OWNED, LEASED, OPERATED, MANAGED, OR
OCCUPIED BY SUCH LOAN PARTY OR ANY OF ITS PREDECESSORS IN INTEREST (THE "FORMER
REAL PROPERTY") ARE AND HAVE BEEN IN COMPLIANCE WITH, AND NO LOAN PARTY HAS
LIABILITY UNDER, ANY APPLICABLE ENVIRONMENTAL LAWS;
(B)
THE LOAN PARTIES HAVE OBTAINED ALL PERMITS REQUIRED FOR THE
CONDUCT OF THEIR BUSINESS AND OPERATIONS, AND THE OWNERSHIP, OPERATION AND USE
OF THE REAL PROPERTY, UNDER ALL APPLICABLE ENVIRONMENTAL LAWS (THE
"ENVIRONMENTAL PERMITS").
THE LOAN PARTIES ARE IN COMPLIANCE WITH THE TERMS AND
CONDITIONS OF SUCH ENVIRONMENTAL PERMITS, AND ALL SUCH ENVIRONMENTAL PERMITS ARE
VALID AND IN GOOD STANDING.
NO EXPENDITURES OR OPERATIONAL ADJUSTMENTS, OTHER
THAN THOSE IN THE ORDINARY COURSE OF BUSINESS, ARE REASONABLY ANTICIPATED TO BE
REQUIRED TO REMAIN IN COMPLIANCE WITH THE TERMS AND CONDITIONS OF, OR TO RENEW
OR MODIFY SUCH ENVIRONMENTAL PERMITS;
(C)
THERE HAS BEEN NO RELEASE OR THREATENED RELEASE OR ANY HANDLING,
MANAGEMENT, GENERATION, TREATMENT, STORAGE OR DISPOSAL OF HAZARDOUS MATERIALS
ON, AT, UNDER OR FROM ANY REAL PROPERTY OR FORMER REAL PROPERTY THAT HAS
RESULTED IN, OR IS REASONABLY LIKELY TO RESULT IN, A MATERIAL ENVIRONMENTAL
LIABILITY FOR ANY LOAN PARTY;
(D)
THERE IS NO ENVIRONMENTAL ACTION OR ENVIRONMENTAL LIABILITY
PENDING OR, TO THE KNOWLEDGE OF ANY LOAN PARTY, THREATENED AGAINST ANY LOAN
PARTY, OR RELATING TO THE OPERATIONS OF ANY LOAN PARTY, AND, TO THE KNOWLEDGE OF
EACH LOAN PARTY, THERE ARE NO ACTIONS, ACTIVITIES, CIRCUMSTANCES, CONDITIONS,
EVENTS OR INCIDENTS THAT ARE REASONABLY LIKELY TO FORM THE BASIS OF SUCH AN
ENVIRONMENTAL ACTION