OR ELECTRICAL EQUIPMENT CONTAINING
POLYCHLORINATED BIPHENYLS ON THE REAL PROPERTY, INCLUDING ANY PREMISES LEASED BY
ANY BORROWER; (III) THE REAL PROPERTY INCLUDING ANY PREMISES LEASED BY ANY
BORROWER HAS NEVER BEEN USED AS A TREATMENT, STORAGE OR DISPOSAL FACILITY OF
HAZARDOUS WASTE PERMITTED UNDER RCRA; AND (IV) NO HAZARDOUS SUBSTANCES ARE
PRESENT ON THE REAL PROPERTY INCLUDING ANY PREMISES LEASED BY ANY BORROWER,
EXCEPTING SUCH QUANTITIES AS ARE HANDLED IN ACCORDANCE WITH ALL APPLICABLE
MATERIAL MANUFACTURER'S INSTRUCTIONS AND GOVERNMENTAL REGULATIONS AND IN PROPER
STORAGE CONTAINERS AND AS ARE APPROPRIATE FOR THE OPERATION OF THE COMMERCIAL
BUSINESS OF ANY BORROWER OR OF ITS TENANTS.
5.8.
SOLVENCY; NO LITIGATION, VIOLATION, INDEBTEDNESS OR DEFAULT; ERISA
COMPLIANCE.
(A)
AFTER GIVING EFFECT TO THE TRANSACTIONS, EACH BORROWER WILL BE
SOLVENT, ABLE TO PAY ITS DEBTS AS THEY MATURE, WILL HAVE CAPITAL SUFFICIENT TO
CARRY ON ITS BUSINESS AND ALL BUSINESSES IN WHICH IT IS ABOUT TO ENGAGE, AND
(I) AS OF THE CLOSING DATE, THE FAIR PRESENT SALEABLE VALUE OF ITS ASSETS,
CALCULATED ON A GOING CONCERN BASIS, IS IN EXCESS OF THE AMOUNT OF ITS
LIABILITIES AND (II) SUBSEQUENT TO THE CLOSING DATE, THE FAIR SALEABLE VALUE OF
ITS ASSETS (CALCULATED ON A GOING CONCERN BASIS) WILL BE IN EXCESS OF THE AMOUNT
OF ITS LIABILITIES.
(B)
EXCEPT AS DISCLOSED IN SCHEDULE 5.8(B), NO BORROWER HAS (I) ANY
PENDING OR THREATENED LITIGATION, ARBITRATION, ACTIONS OR PROCEEDINGS WHICH
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, AND (II) ANY
LIABILITIES OR INDEBTEDNESS FOR BORROWED MONEY OTHER THAN THE OBLIGATIONS.
(C)
NO BORROWER IS IN VIOLATION OF ANY APPLICABLE STATUTE, LAW, RULE,
REGULATION OR ORDINANCE IN ANY RESPECT WHICH COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT, NOR IS ANY BORROWER IN VIOLATION OF ANY ORDER OF
ANY COURT, GOVERNMENTAL BODY OR ARBITRATION BOARD OR TRIBUNAL.
(D)
NO BORROWER NOR ANY MEMBER OF THE CONTROLLED GROUP MAINTAINS OR IS
REQUIRED TO CONTRIBUTE TO ANY PENSION BENEFIT PLAN OR MULTIEMPLOYER PLAN OTHER
THAN THOSE LISTED ON SCHEDULE 5.8(D) HERETO.
(I) EACH BORROWER AND EACH MEMBER
OF THE CONTROLLED GROUP HAS MET ALL APPLICABLE MINIMUM FUNDING REQUIREMENTS
UNDER SECTION 302 OF ERISA AND SECTION 412 OF THE CODE IN RESPECT OF EACH PLAN,
AND EACH PLAN IS IN COMPLIANCE WITH SECTIONS 412, 430 AND 436 OF THE CODE AND
SECTIONS 206(G), 302 AND 303 OF ERISA, TAKING INTO ACCOUNT WAIVERS, VARIANCES
AND EXTENSIONS OF AMORTIZATION PERIODS; (II) EACH PLAN WHICH IS INTENDED TO BE A
QUALIFIED PLAN
59
UNDER SECTION 401(A) OF THE CODE AS CURRENTLY IN EFFECT HAS BEEN DETERMINED BY
THE INTERNAL REVENUE SERVICE TO BE QUALIFIED UNDER SECTION 401(A) OF THE CODE
AND THE TRUST RELATED THERETO HAS BEEN DETERMINED TO BE EXEMPT FROM FEDERAL
INCOME TAX UNDER SECTION 501(A) OF THE CODE; (III) NEITHER ANY BORROWER NOR ANY
MEMBER OF THE CONTROLLED GROUP HAS INCURRED ANY LIABILITY TO THE PBGC WHICH
REMAINS OUTSTANDING OTHER THAN FOR THE PAYMENT OF PREMIUMS, AND THERE ARE NO
PREMIUM PAYMENTS WHICH HAVE BECOME