OFFER AND SALE
OF THE NOTES AND THE APPLICATION OF THE PROCEEDS THEREFROM AS DESCRIBED UNDER
"USE OF PROCEEDS" IN EACH OF THE PRICING DISCLOSURE PACKAGE AND THE OFFERING
MEMORANDUM WILL BE, AN "INVESTMENT COMPANY" OR A COMPANY "CONTROLLED" BY AN
"INVESTMENT COMPANY" WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED, AND THE RULES AND REGULATIONS OF THE COMMISSION THEREUNDER.
(WW)
IMMEDIATELY AFTER THE CONSUMMATION OF THE
TRANSACTIONS, THE COMPANY WILL BE SOLVENT.
AS USED IN THIS PARAGRAPH, THE TERM
"SOLVENT" MEANS, WITH RESPECT TO A PARTICULAR DATE, THAT ON SUCH DATE (I) THE
PRESENT FAIR MARKET VALUE (OR PRESENT FAIR SALEABLE VALUE) OF THE ASSETS OF THE
COMPANY ARE NOT LESS THAN THE TOTAL AMOUNT REQUIRED TO PAY THE PROBABLE
LIABILITIES OF THE ISSUERS ON THEIR TOTAL EXISTING DEBTS AND LIABILITIES
(INCLUDING CONTINGENT LIABILITIES) AS THEY BECOME ABSOLUTE AND MATURED, (II) THE
COMPANY IS ABLE TO REALIZE UPON ITS ASSETS AND PAY ITS DEBTS AND OTHER
LIABILITIES, CONTINGENT OBLIGATIONS AND COMMITMENTS AS THEY MATURE AND BECOME
DUE IN THE NORMAL COURSE OF BUSINESS, (III) ASSUMING THE SALE OF THE NOTES AS
CONTEMPLATED BY THIS AGREEMENT, THE PRICING DISCLOSURE PACKAGE AND THE OFFERING
MEMORANDUM, THE COMPANY IS NOT INCURRING DEBTS OR LIABILITIES BEYOND ITS ABILITY
TO PAY AS SUCH DEBTS AND LIABILITIES MATURE, (IV) THE COMPANY IS NOT ENGAGED IN
ANY BUSINESS OR TRANSACTION, AND IS NOT ABOUT TO ENGAGE IN ANY BUSINESS OR
TRANSACTION, FOR WHICH ITS PROPERTY WOULD CONSTITUTE UNREASONABLY SMALL CAPITAL
AFTER GIVING DUE CONSIDERATION TO THE PREVAILING PRACTICE IN THE INDUSTRY IN
WHICH THE COMPANY IS ENGAGED, AND (V) THE COMPANY IS NOT A DEFENDANT IN ANY
CIVIL ACTION THAT WOULD RESULT IN A JUDGMENT THAT THE COMPANY IS OR WOULD BECOME
UNABLE TO SATISFY. IN COMPUTING THE AMOUNT OF SUCH CONTINGENT LIABILITIES AT ANY
TIME, IT IS INTENDED THAT SUCH LIABILITIES WILL BE COMPUTED AT THE AMOUNT THAT,
IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES EXISTING AT SUCH TIME,
REPRESENTS THE AMOUNT THAT CAN REASONABLY BE EXPECTED TO BECOME AN ACTUAL OR
MATURED LIABILITY.
(XX)
THE STATEMENTS SET FORTH IN EACH OF THE
PRICING DISCLOSURE PACKAGE AND THE OFFERING MEMORANDUM UNDER THE CAPTION
"DESCRIPTION OF THE NOTES," INSOFAR AS THEY PURPORT TO CONSTITUTE A SUMMARY OF
THE TERMS OF THE NOTES AND THE GUARANTEES AND UNDER THE CAPTIONS "CERTAIN UNITED
STATES FEDERAL TAX CONSIDERATIONS," "CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS," "DESCRIPTION OF INDEBTEDNESS" AND "PLAN OF DISTRIBUTION", INSOFAR
AS THEY PURPORT TO SUMMARIZE THE PROVISIONS OF THE LAWS AND DOCUMENTS REFERRED
TO THEREIN (AND, IN THE CASE OF "CERTAIN UNITED STATES FEDERAL TAX
CONSIDERATIONS," TO MAKE LEGAL CONCLUSIONS), ARE ACCURATE SUMMARIES IN ALL
MATERIAL RESPECTS.
(YY)
EXCEPT AS DESCRIBED IN THE PRICING DISCLOSURE
PACKAGE, THERE ARE NO CONTRACTS, AGREEMENTS OR UNDERSTANDINGS BETWEEN THE
COMPANY, ANY GUARANTOR AND ANY PERSON GRANTING SUCH PERSON THE RIGHT TO REQUIRE
THE COMPANY OR ANY GUARANTOR TO FILE A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WITH RESPECT TO ANY SECURITIES OF THE COMPANY OR